Chicago, M. & St. P. Ry. Co. v. Clement

(after stating the facts as above). The only point made on behalf of the plaintiffs in error that we. think worthy of mention is the contention that- neither the complaint as amended nor the evidence justified the recovery on the ground that the defendant railway'company had “the last clear chance” to avoid the fatal collision, and negligently failed in its duty to do so — the pleading and the evidence being based on that doctrine.

[1] In effect, the amended complaint alleges that at the time of the accident the deceasec[ was of about the age of. 15 years; that the defendant Woods was the locomotive engineer in charge of the engine, and the defendant Chappell was foreman of the engine crew, and was riding upon the engine operated by Woods, and directed its movements ; that at about 4 o’clock in the morning of November 5, 1912, the boy was riding in an inclosed milk wagon drawn by a pair of horses which he was driving, and going in a northerly direction on Montana street in the city of Butte, Mont., toward and near the intersection of the railway company’s tracks with the said street, and .was not observant of the approach of the train passing along the trade in a westerly…