I dissent on the ground that while the statement in the first instruction discussed in the main opinion, "Nor is it [contributory negligence] to be inferred from the evidence offered by the plaintiff," is erroneous, so palpably so as to make it probable that it was given wholly by inadvertence, and while, in fact, the decedent was plainly guilty of contributory negligence and the jury should have been so instructed, yet the facts of the case are such as to show unmistakably that the verdict was a just one under the last clear chance rule, and to make it evident that the jury, if there is any presumption that they were reasoning beings and acted as such, reached their verdict because of the liability of the defendants under that rule without being affected by the issue of contributory negligence which was erroneously submitted to them. More than this, I do not see how it is possible upon the facts of this case to say truly that the errors relied upon to justify the reversal, of which those concerning the issue of contributory negligence are alone substantial, "resulted in a miscarriage of justice" as required by section 4 1/2 of article VI of our constitution. The verdict certainly cannot be said to be an unjust one. If the facts be not such as to require a verdict for the plaintiff as a matter of law, and in my judgment they at least closely approach so doing, at least they amply justify such a verdict and destroy the possibility of its being properly deemed "a miscarriage of justice."
The salient facts are practically without dispute. The decedent, Bluhm, was coming along the street on his motorcycle approaching the crossing in an utterly heedless and therefore perilous fashion. Under these circumstances no recovery could be had for his death unless three things appeared, viz.: (1) That the train crew observed and realized *Page 385 his peril; (2) that the train crew did not act with the promptness which such a situation reasonably demanded of them; and (3) that if they had so acted, the accident would have been avoided. On the other hand, if these things did appear, the plaintiff was entitled to recover. The evidence both for the plaintiff and the defendants shows unmistakably that they did in fact exist.
First, as to the train crew observing and realizing the decedent's peril. The decedent was killed by being struck by a caboose which was being pushed by a locomotive. As the caboose was being so backed one of the brakemen, the defendant Conley, was stationed on the steps of the forward platform of the caboose, that is, the platform that was forward as the caboose was then being moved, to direct and control the movement of the train and to look out for any danger. Before the decedent came in sight and before the train reached the street, both Conley and the engineer, the defendant Jones, observed a bystander on the sidewalk who, in Conley's language, was "making all kinds of demonstration. It seemed as though he was motioning to a fellow going across the track, you know — stopping him that way, and then he grabbed his hat and motioned and waived it." By the actions of this bystander Conley and the engineer must both have realized the possibility of an impending danger, and must have been mentally prepared for the peril which immediately after developed within their observation when Bluhm come into view. So forewarned, their natural and almost inevitable mental reaction when Bluhm did come into view was to realize this peril. That there was, in fact, such realization appears from Conley's testimony, which is that when he first saw Bluhm he "hollered" and waved at him and gave the emergency stop signal to the engineer. From these actions of Conley's there is but one possible conclusion, and that is that he observed and realized that Bluhm was in peril.
Second, as to the train crew not acting with the promptness which Bluhm's observed and realized peril reasonably demanded of them. It needs no argument to establish the proposition that it was the duty of the train crew, upon observing and realizing Bluhm's peril, promptly to stop the train. The testimony, however, leaves no doubt that they did not do so. The engineer Jones testified for the defendant *Page 386 that the train could be stopped in forty feet. It is well-nigh incredible that a freight engine with only a light caboose attached, traveling a little faster than a fast walk, and moving on a slight upgrade such as existed at the place of accident, could not be stopped in much less than forty feet. But however this may be, there can be no disputing the fact that the train was stopped only after it had proceeded seventy-five or eighty feet from the point where it first struck Bluhm. This distance, of course, is less than the distance through which the train moved after Bluhm's peril was observed by the train crew, since by all the testimony this was observed before Bluhm was struck. The following facts are those which conclusively show the movement of the train through seventy-five or eighty feet after striking Bluhm. When Bluhm was struck he was eight or ten feet south of the tracks of an electric road which runs along the street on which he was riding and crosses the steam railroad tracks. The train was moving north and when it was finally stopped the gangway between the engine and its tender was immediately over the electric tracks. The engine was moving forward so that the whole length of the engine as far as the gangway had crossed the electric tracks. It necessarily follows from these facts that after striking Bluhm the train moved through the distance from the point of contact to the electric tracks, some eight or ten feet, plus the length of the caboose, which it was testified by the defendants' witnesses was something over thirty feet, plus the length of the engine without the tender, which was testified by the defendants' witnesses to be about forty feet. The sum of these distances is seventy-eight or eighty feet, or almost twice that within which, according to the testimony of the engineer, the train could have been stopped. I can see but one reasonable conclusion from these facts, and that is that the train was not in fact stopped with the promptness which the situation of observed peril reasonably demanded.
Third, as to the fact that if the train had been stopped with reasonable promptness the accident would have been avoided. This is shown conclusively by the fact that a very slight checking of the speed of the train would have avoided the accident. Bluhm was struck by the far-side of the platform, that is, he was almost across the track and out of danger. In fact, if he had remained on his motorcycle he *Page 387 probably would not have been struck at all, for the motorcycle was not hit but went on completely across and was there picked up uninjured. Just as the caboose was almost upon Bluhm he was observed to throw up his hands and fall off his wheel, and it was due to his falling off, probably caused by fright at his observing the caboose so close upon him, that he was struck.
The foregoing facts appear so plainly in the evidence and the conclusion to which they lead is so plain that, as I have said, it seems evident that it was because of these facts, and not because of any erroneous view as to the decedent's contributory negligence, that the jury returned the verdict which they did. That verdict cannot be said to be a miscarriage of justice, and the errors dwelt upon in the main opinion seem to me to come fairly within the remedial amendment mentioned of our constitution.
What I have said does not apply to the members of the train crew other than the brakeman Conley and the engineer. The other members of the crew were not shown to have had any connection with the failure to stop the train promptly on Bluhm's peril being observed, and the judgment as to them is properly reversed.
Lawlor, J., concurred.
Rehearing denied.
In denying a rehearing the court filed the following opinion on April 7, 1920: