8 S.D. 394 | S.D. | 1896
In this action plaintiff recovered judgment for a cow killed by one of defendant’s engines. Defendant appeals. But two errors are assigned: (1) The introduction of improper evidence; (2) insufficiency of the evidence to sustain . the verdict. At the trial plaintiff established the killing and rested. Defendant showed that its train was equipped with proper appliances, that it was in charge of competent employes and attempted to show that it was properly managed at the time of the accident. In rebuttal plaintiff sought to show that it was not properly managed, and that the accident might have been avoided by the exercise of proper care. The instructions are not before us. A general verdict was returned in favor of plaintiff. The animal was killed about three o’clock in the afternoon. The conductor testified that he did not see the cow. The engineer called for brakes. Were running about 25 miles an hour when signal for breaks was given ifi such manner as that he wanted them real bad. Was in mail department. Rushed out on platform, both brakemen were then at breaks. Then they got signal to release brakes, and passed place where cow was struck, but .did not know they had struck her until they reached Britton. The engineer testified that he had been a locomotive engineer for defendant seven or eight years. They were running 25 miles an hour. He was on the watchout. Saw the cow come' upon the track ahead of the engine. Knocked her off. He reversed the engine at the time he saw her coming on the track. She was about 15 rods away when be first saw her coming up the bank and coming upon the track. He was at that time at his station, on the lookout. Train did not stop. The cow came up the fill from the ditch on the track suddenly in front of the engine. He whistled for breaks first, then re
Assuming, without deciding, that it was not the engineer’s duty to keep a lookout for cattle — the view most favorable to appellant — it was unquestionably his duty to use all reasonable means to prevent striking the cow after he first saw her upon the track. He says if she was on the track he could have seen her when the train was two miles distant, and that the train could have been stopped in one-quarter of a mile after calling for brakes. He was at his station, and on the lookout. Two witnesses testify the animal was on the track when the train was a mile and a half distant; one that it remained there until struck by the engine. If the jury believed this testimony, they were entirely justified in concluding the engineer did not signal for brakes when he first saw the cow, as he must have seen her while running more than a mile; and they were warranted
Frank Ferris, called by plaintiff in rebuttal, testified: ‘ ‘My age is 62 years. I am a. farmer. I ran a locomotive engine a little over 22 years. It has been ten years since I ran an engine.” The witness was then interrogated by plaintiff’s counsel as follows: “Supposing a train was running at the rate of 25 miles an hour, an animal suddenly came upon the track in front of the engine, say 100 or 150 feet, and in the judgment of the eneineer he would inevitably strike it, what is the proper thing for the engineer to do, under .the circumstances, for the safety of his passengers and the safety of his train?” To which defendant objected, for the reason that it was incompetent, irrelevant and immaterial, and that witness is not shown competent to answer the same, and that the question is hypothetical, and there is no evidence on which to base such a question. The objection being overruled, the witness answered as follows: “In cases of that kind, if they were too near to stop, he would increase his speed, and throw the stock from the track. In trying to stop the train when the train is running