123 N.W. 281 | N.D. | 1909
Plaintiff recovered judgment in justice court, and, on appeal, in the district court for the value of a horse which he alleges in his complaint was negligently injured by the defendant on or about the 21st day of December, 1905, by being run against or over by one of defendant’s locomotives and cars. The answer to the complaint is a general denial. The record shows that, at the point where the horse was found after the injury, three or four miles northwest of Washburn, defendant’s railroad track runs northwest and southeast through a cut 10 or 15 feet deep and 600 or more feet, long, and that there is a slight curve in this cut. Plaintiff turned three horses, including the one injured, out to graze and for exercise two days before the accident is alleged to have occurred. He found two of them, but was unable to find the third one. On the 21st day of December defendant ran a mixed train from Bismarck north to Garrison in the morning and back in the evening. Neither the plaintiff nor any of his witnesses saw the accident. It is shown that the two trains mentioned were the only ones which passed over the road on the 21st of December. The engineer and fireman testified that about the time they entered this cut going southeast on the evening of the 21st they saw an object ahead, but were unable to distinguish what it was; that it was not on the track, but at the side of the track. The engineer ran past it and then backed up to learn what it was. He and the conductor and brakeman found it to be a horse lying in the ditch on the side of the grade with one of its front feet cut off. The engineer and fireman 'testified that it was not on the track when they discovered it, and that they did not hit it either on the morning or evening trip. When they reached Washburn the engineer notified the station agent to send some one back to look after it. The trackman and another party were' sent out and found it. It was clear of the track when they found it. Its left front and right hind feet were severed, and it had a large gash in one of its hips. It is clearly shown that the horse went upon the track at some point north of the cut, and the snow, of which there was from 6 to' 10 inches, showed
We are of the opinion that the evidence was ample tQ justify the jury in finding that some train of the defendant inflicted the injury. We are unable to say whether it found that train No. 92, namely, the train running south on December 21st, or some other train going in the same direction on the preceding day, did the damage.’ We may, however, assume that it found the train regarding which the evidence was submitted was the one which hit the horse, and then the question arises, in view of the testimony given by the trainmen, whether the verdict can be sustained. Direct evidence is not the only class of evidence which may be used to prove facts'. Oftimes circumstances point more plainly and unmistakably to a fact than words by a witness can be made to- do, and circumstances may be in such marked conflict with the testimony given by any witnesses as to conclusively rebut it. The circumstances surrounding the injury to this horse are such that the jury may have found that they clearly indicated the injury of the animal by a train, and, while not equally as clear, we think strongly point toward the train in question, notwithstanding the testimony of the trainmen. The jury may well have found that the condition of the animal could be explained in no other manner, and that the testimony given by the engineer and fireman was false. The verdict and judgment can be sustained on either of two theories. Under section 4297, Rev. Codes 1905, which makes the killing or damaging of any horses, cattle,, or stock by cars or locomotives along the railway prima facie evidence of carelessness and negligence on the part of the corporation, when the jury found, as it must have found, that defendant’s.
It is apparent that the court did not err in denying a new trial or in overruling the motion for judgment notwithstanding the verdict unless reversible error was committed in the reception or rejection of evidence or in the 'Charge to the jury. Many errors are assigned on these grounds. Most of them, if errors, were cured’by the .subsequent admission of evidence covering the same points, and it is not necessary to consider those.
'Exception No. 1 relates to the ruling admitting evidence that the right of way and track were not fenced. It is not necessary to determine- whether this was error or not, because subsequently the same ground was covered without objection. Objection was made to the statement as to what occurred 'between the station agent at Washburn and the man he sent back to look for the horse; but their conversation was only preliminary and .introductory to showing that he went back, and why, and contains nothing which we can say was prejudicial in any manner.
Exception No. 9 relates to the court’s sustaining plaintiff’s objection to the introduction of a rough diagram or draft of the cut • offered by the appellant during the 'examination of the engineer. Aside from no foundation having been laid for its introduction
Exception No. 12 relates-to the answer to a question asked the conductor of the train as to what he would say as to the conditions around where they found the horse as to the length of time the horse might have been in that condition. This question was objected to as leading and calling for a conclusion of the witness. We see no reversible error in striking out the answer given by the witness on the ground that it was a conclusion and not a fact.
The specific objections to portions of the instructions of the court to the jury rest upon the court’s assumption that there was evidence from which the jury might find that train No. 92, of December 21st, injured the horse, and need no further comment.
Other assignments are without merit.
The order of the district court is affirmed.
