Pieczynski v. Chicago, Burlington & Quincy Railway Co.

Morling, J.

The body of deceased was found near defendant’s tracks. There was no eyewitness to the tragedy. She evidently was struck by the left side of defendant’s locomotive, out of the range of vision of the engineer, and while the fireman was coaling. There was, at the place, a footpath extending across defendant’s right of way, much used by the public, including deceased. She was seen on the footpath, walking toward the track, a few moments before her body was found. One of defendant’s passenger trains was then approaching this crossing at a speed estimated by plaintiff’s witnesses to be 25 miles an hour, and by defendant’s witnesses, 10 or 12 miles per hour. The negligence claimed is in the speed of the train, exceeding the ordinance rate, and in not ringing the bell or blowing the whistle. There was a lengthy building along the track on the side on which deceased was, and between the building and the track was a row of trees. These would obscure her vision until she got to a point about 12 feet from the nearest rail. At that point, she would have an unobstructed view of the track in the direction from which the train was approaching, for 600 feet, and farther as she got nearer. The train was a regular train, on time. Deceased was 24 years old. Her hearing was good, and, for all that appears, her eyesight was also good. She had been employed in the vicinity for a considerable time, and evidently was familiar with the surroundings. The accident occurred at about 5:30 P. M. on September 24th, and therefore in daylight, though one of the witnesses says it was getting dark. There is evidence that the ground was somewhat rough, and the path was over a small ditch. No reason appears, however, for her not seeing- the train if she had looked. One of two inferences must be drawn from the evidence: either that deceased did not.look or listen for a train, or (perhaps less likely) that she knowingly attempted to cross in front of it. In either case she was negligent, and her negligence contributed to the accident. The motion to direct was, therefore, properly sustained.

We have considered the case on the merits, in order that injustice may not be done, but the judgment should be affirmed for failure to comply with the rules in the preparation of the abstract. ' The bill of exceptions is substantially-printed in full. Questions and answers, whether material or not, and whether objections were sustained or not, setting out fully defendant’s exceptions, as well as plaintiff’s, are printed in full. The 166 pages of printed abstract should have been compressed into less than half that number. The added physical labor of reading the matter that in the ordinary bill of exceptions would be irrelevant to the appeal, would greatly detract from the ability of the court to give due consideration to the questions involved and keep up with its work. The rules must be observed.

The judgment is—Affirmed.

De Graff, C. J., and Evans and AlbeRT, JJ., concur.