19 S.D. 459 | S.D. | 1905
This is an action to recover damages for the loss of a horse belonging to the plaintiff through the alleged negligent operation of one of defendant’s trains. The issues involved are thus stated by the learned circuit court in its charge, to which no exceptions were taken: ' “The evidence in this case shows that the horse was not struck at a crossing, but was struck upon the right of way, upon the track where there was no crossing, on private grounds, and on the railroad right of way. The horse was therefore’a trespasser, and it was not the duty of the locomotive engineer, or of the brakeman, or any of its servants, to keep a lookout for the horse; and they are not guilty on account of any failure to see the horse; but if the engineer did see the horse, and saw that it was in close proximity to the track, and liable to be hurt, then it was the duty of the engineer to use reasonable care and precaution to avoid, if possible, the injury. He was not bound to keep any lookout in order to see if any stock was there, but he was bound to stop the train and prevent injury if he did see the stock in time to enable him' by exercising reasonable care to dó so. In addition to other evidence in this case, there has been introduced an ordinance of the city limiting the speed of railroad trains within the city limits to six miles an hour. This is simply introduced along with the other evidence that you may weigh and consider it. The railroad company was not per se necessarily negligent because it may have run the train at a greater rate of speed than six miles an hour; but the question of whether that rate of speed was dangerous to stock that 'might be along the right of way — whether they were negligent
Defendant’s engineer testified as follows: “We left Sioux Palls to go to Salem about two o’clock. That' was the regular time of leaving. I think the train started on time. * * * I remember the occasion of this accident, and where it occurred. It was about 60 feet to the west of the Twelfth Street Viaduct in this city. I was going west that day on this trip. As we passed under the Twelfth Street Viaduct I saw the horse break out of the ditch and weeds directly towards the west side of the track, not to exceed 50 feet from the engine, ahead of the engine, and make an effort to. jump across the track. I shut off steam immediately, but before I had time to do anything further — I was so close to the horse at the time — we had collided with him, and the horse was thrown up on the pilot of the engine, and carried along a short distance, and.rolled off
On the day before the trial a horse was taken to the point near the track where the plaintiff’s wife and son swore the injured horse was standing when the train approached, and persons who walked on the track from that point eastward for more than 1,500 feet were permitted to testify that this horse standing 25 feet either way from the track, could be seen plainly the entire distance. Evidence on the part of the plaintiff in rebuttal, tending to prove the distance the engineer could have seen live stock on or near the track at the time of the accident, was competent. Sheldon v. Ry. Co., 6 S. D. 606, 62 N. W. 955. The evidence introduced for that purpose was undoubtedly the-best which the natui’e of the case affoided, and
John Barber, called on behalf of plaintiff, testified that he was near the track where and when the accident occurred; that his business was carpentering and farming; that' he: had seen trains run; that he had ridden on them a great deal;' and that he knew something in regard to speed of trains from having seen and ridden on them. He was permitted' over defendant’s objections, to state that in his judgment the train was running at the rate of at least 30 miles an hour. One of defendant’s employes had sworn on direct examination that it was running at its usual rate of speed; another, on cross-ex.? amination, without objection, that it was running between"13 and 15 miles per hour. The matter of speed, whether.material or not, having been thus introduced, it was certainly not error to receive further competent testimony touching the same subject. All statements concerning the speed of trains,. except
It is contended that’the court erred in permitting the introduction by the plaintiff of certain sections of an ordinance prohibiting a greater rate of speed than six miles an hour, and requiring the bell to be rung continually on all engines while running within the city limits. Many cases lay down the rule that the violation of a statute or ordinance constitutes negligence per se, or conclusive evidence of negligence. The rule of other cases seems to be that the violation of a statute or municipal ordinance is prima facie evidence of negligence. In still other cases the courts have been content with the announcement that evidence of the fact that the defendant’s act constituted the violation of a state or municipal law is proper for the consideration of the jury in determining whether the defendant was in fact negligent. 21 Am. & Eng. Ency. Law (2d Ed.) 478, 479. As the last-mentioned view — the one most
Reversible error cannot be predicated upon the introduction of the provision of the ordinance regarding the ringing of the bell, because, like the provision relating to speed, it was within the issues; and, in the absence of any exceptions to the charge or request to charge on that subject, defendant cannot
As no instructions were requested and no exceptions were taken to the instructions given by the court, it must be assumed, for the purposes of this appeal, that all material issues of fact were properly submitted to the jury, and the defendant is not in position to contend that the plaintiff’s negligence contributed to the injury, that ground not having been included in its motion for a direction of the verdict.
The verdict, which was for $200, is claimed to be excessive. There was abundant competent evidence showing the horse to have been worth that amount, to which nothing was opposed except a statement of claim against the company verified by the plaintiff, wherein its value was placed at §100, in explanation of which the plaintiff testified that only §100 was claimed simply because he thought “if he put the price clean down” he might get something without suit. The statement, if competent for any purpose, was merely an admission which did not preclude other proof of the animal’s fair market value, and the effect of which was entirely overcome, if credit be given the plaintiff’s very reasonable explanation. As we view the evidence, there was no room for controversy concerning the proper amount of damages.
The judgment of the circuit court is affirmed.