180 N.W. 972 | N.D. | 1920
Lead Opinion
This is an action to recover damages for the loss of a certain stallion. In his complaint, the plaintiff alleges: That the defendant at all times mentioned in the complaint operated a line of railway through and across the county of Stark; that on November 9, 1912, the plaintiff was the owner and in full possession and control of a pure-blooded Perdieron stallion, Prince Albert, registered No. 65,485, age about three years, and of the value of $2,000.
“That on the 9th day of November, a. d., 1912, while said stallion. Prince Albert, belonging to plaintiff as aforesaid, was rightfully and properly upon a public crossing over the railroad track of said defendant
Plaintiff offeréd evidence showing that he owned the stallion in controversy, and that he kept him at his ranch, some 2-J miles east of Richardton, in Stark county in this state; that the buildings on plaintiff’s ranch, and a pasture adjacent thereto consisting of about 250 acres, lay on the north side of the defendant’s line of railway; that such pasture lay in two sections; that the plaintiff had placed a gate where the fence running along the south side of such pasture intersected the section line, said gate being about a quarter of a mile directly north of the crossing at which the stallion was killed. Plaintiff testified that about 2:00 o’clock in the afternoon on November 9, 1912, he went to Richardton; that at the time he left, he observed that the stallion was in the pasture. In going to Richardton, the plaintiff went through the gate, which he says that he closed after passing through it. According to his testimony he returned “about dark.” When asked to tell the time, he says, “He supposed [he returned home] between 5 and 6
The following questions and answers are quoted from his direct examination.
Q. Did you go over the crossing to the south ?
A. Yes, I went over to the crossing; I don’t know as I went over the crossing.
Q. Did you find him anywhere?
A. I didn’t see any evidence of him at all.
Q. Did you make such search as you could in the condition as to light ?
A. Yes, sir. I didn’t search very much because I didn’t see the horse or the body of it at the crossing. I didn’t suppose he was there.
Q. You looked about did you, looked about as long as you could ?
A. I looked about the crossing. I didn’t find the horse. I didn’t look very much because I thought perhaps I was mistaken; that the horse was still maybe at home, and I went back to the stable.
Q. When you went back ivas he there ?
A. No, sir.
Q. You took the other horses back with you ?
A. Yes, sir, what I found.
Plaintiff further testified that he went to the crossing in question the next morning and saw “blood, hair, entrails, and everything else on the crossing and west of the crossing;” that there was blood upon the planks of the crossing; that those marks extended from a point on, and about 5 or 6 feet from the west end of the crossing until a considerable distance (about 150-200 feet) west of the crossing, where he found .the dead body of the stallion; that at-that time the section crew of the defendant ivas engaged in digging a hole in the ground in which to bury the body. Plaintiff’s testimony further shows that east of the crossing at which the animal was killed, the railway tracks extend in a straight line for a
The defendant’s witness, Hunke, testified that he was a fireman on defendant’s train No. 5; that this train passed over the crossing in question, about midnight, on the night that plaintiff’s stallion was killed; that the engineer in charge of the train is now dead; that the train hit a horse on the crossing in question, on that particular night; that as the train approached the crossing, he (Hunke) was on the bench keeping a lookout ahead; that the headlight was in good order and focused directly on the track ahead, but that the light would illuminate so as to make objects visible for a distance of about 100 feet on each side of the track; that as they approached the crossing, they were traveling at between 40 and 50 miles an.hour; that he was seated so that he could and did keep a lookout on the south side of the track; that shortly before reaching the crossing some horses moved.onto the track; that the train was then only a short distance away, and that it was impossible to stop the train after seeing the horses; that the engineer could not have seen the horses as they came on to the track, from where he was seated, — he being seated on the north side of the cab; tliat the train hit one of the horses; that this was evidenced by the rumbling of the wheels passing over the body of the horse, as well as by the stench which arose from the entrails and blood of the horse, coming in contact with the hot pipes or the front of the engine; that the bell was not rung, but that the whistle was blown for the crossing.
Plaintiff also introduced evidence that at the time of the accident the defendant operated four west-hound passenger trains, No. 3, which passed through Richard ton about 1:30 in the afternoon; No. 5, which passed through there about midnight; No. 1, which passed through there about 1:30 a. m. ; and No. 7, which passed through there at about 5 :15 p. m. ; that there also was a fast freight which went through there during the night, and that usually there were other west-hound freights during the night.
On this appeal defendant asserts that the plaintiff has failed to establish actionable negligence on the part of the defendant. ' While the case is a close one, we are not prepared to hold as a matter of law that the defendant overcame the statutory presumption of negligence (Comp.
The defendant next contends that the court erred in its instructions to the jury. This contention, we believe, is well founded and must be sustained. The court instructed the jury in part thus: “Now, gentlemen of the jury, in this case we have the railroad coming in here and denying that they are liable. Then, the railroad comes in here and sets up an explanation with reference to one train only, and that is No. 7. Now, under the evidence of this case there are two trains that have passed this crossing between 5 o’clock and midnight the same afternoon and night. There is no evidence before you as to which train actually killed the horse; the horse that stood on the track was never identified by either the plaintiff or the defendant. The case stands this way. Supposing that the railroad company has established to your satisfaction a good and valid excuse for the killing of the horse by train No. 7 — no, by train No. 5, that still would leave train No. 7, which arrives at Eichardton at 5:15 r. m. uncontradicted. The question is left open there as to whether, perhaps, No. 5 may not have killed tho horse; and it is up to you, jurymen, to find as to whether No. 5 has killed the horse or not from the evidence introduced in this case.”
Later in his instructions the court said: “The court further instructs the jury that tho law is that when a man proves that he owms live stock, and that it was killed upon the track of the railroad company, the law raises the presumption of negligence as against the railroad company, and when there is no showing to the contrary, no explanation on the part of the railroad company, then the man is entitled to recover. Gentlemen of the jury, this is applicable especially to train No. 7
Plaintiff contends that these instructions were correct under the rule announced by this court in Wright v. Minneapolis, St. P. & S. Ste. M. R. Co. 12 N. D. 159, 96 N. W. 324, and Anderson v. Minneapolis, St. P. & S. Ste. M. R. Co. 18 N. D. 462, 123 N. W. 281. In our opinion these eases readily distinguish themselves from the case at bar. In the Wright Case, the plaintiff introduced evidence showing that he owned two cows which had been killed by some train belonging to the Soo Eailway Company. The defendant introduced evidence by the engineer of
In the Anderson Case the defendant defended on the theory “that it did not injure the horse;” and in the supreme court it strenuously argued that there was no evidence “to warrant the jury in finding that the defendant inflicted the injury which resulted in the killing of the horse.” 18 N. D. 465. The railway company in that case called as its witnesses the engineer and fireman of a certain train which passed over the place where the horse was injured. These witnesses testified that they discovered the injured horse lying in the ditch alongside the railroad track, and that they notified the station agent to send someone back to look after it. According to their testimony, however, the train which they operated did not injure the horse at all. Hence, we have this situation, — the horse was found under such circumstances that the only reasonable inference was that it had been injured by a passing train. The statute raised the presumption that the injury was occasioned by the negligence of the railroad company. If the testimony of the engineer and brakeman was true, the fact would still remain that the horse had been injured by a train-belonging to the defendant in that case, and no evidence was adduced as to the such other trains. The court, also, held that the circumstances in the case were in direct conflict with the testimony of the trainmen, and that the jury might well have concluded that the train which they operated injured the horse. The court said: “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 tlio trainmen. The jury may well have found that the condition of the animal could be explained in no other manner, and that the testimony of the engineer and fireman was false.”
In this case the situation is wholly different from that which existed in the Wright and Anderson Cases. In this case, the defendant does not deny that one of its trains killed the horse ’at the time and place where plaintiff’s horse was found dead the next morning. And there
Tbe court also instructed the jury thus: “The court instructs the jury that it was the duty of the defendant’s engineer to keep a lookout for stock upon its tracks, and- to use ordinary care to avoid injury to stock after they had been discovered or after he might have discovered them by use of ordinary care and diligence.” We also believe that this instruction was erroneous. In this case tbe engineer was dead. The action was not brought until between five and six years after the horse was killed, and in the meantime the engineer had died, so it was impossible for the defendant to produce his testimony. It will be noted tbat tlio court in its instruction places tbe duty to keep a lookout upon, the “engineer.” By the very nature of things there may be situations wherein it will be practically impossible for the engineer to keep a lookout on both sides. An examination of various reported cases disclosed that in many of them the fireman as well as the engineer was keeping a lookout at the time and place where an accident occurred. It is the duty of the defendant to keep a lookout at a crossing, but it is beyond the province of the court to say that this duty must be performed by any particular person.
Tbe court, also, instructed the jury: “If you find from the evidence that tbe plaintiff is entitled to a Verdict, be is entitled to tbe full amount, with interest from the date of killing.” (Later tbe court changed tbe instruction so as to make tbe allowance of interest discretionary, but permitted tbe rest of tbe instruction to stand as given.)
In our opinion, this instruction should not have been given. It is true defendant offered no evidence as to tbe value of tbe stallion. Plaintiff, however, had the burden of showing its value. To establish such value be introduced tbe testimony of himself and two other witnesses, Mottershead and Davis.
On this phase of tbe case, plaintiff testified on bis direct examination thus:
Q. Now, Mr. Brookings, from your knowledge as you have stated*122 it of the qualities of breeding of this stallion, your knowledge of the market value of horses of that class in this locality, the fact that you were the owner of this horse and of his sire and dam, can you state the value of the animal on the 9th day of November, 1912 ?
A. I think I could.
He further testified that the horse at that time was of the value of at least $2,000. The witness Mottershead testified that the value of the horse was "about $2,000.”
The witness Davis testified thus:
Q. What was his value ?
A. Oh, I think around $2,000.
Q. About $2,000 ?
A. Yes, sir.
We are of the opinion that under this evidence the question of value should have been submitted to the jury, and that it was error for the trial court to instruct that, in event they found for the plaintiff, they must fix the value of the horse at the full amount demanded in the complaint, viz.; $2,000. See Chamberlayne, Ev. §§ 2172 et seq.; Shuman v. Rund, 35 N. D. 384, 160 N. W. 507.
It follows from what has been said that the judgment must be reversed and the cause remanded for a new trial. We find it unnecessary to consider the other errors assigned, as it is not likely that they will arise upon another trial.
Reversed and remanded for a new trial.
Concurrence Opinion
(specially concurring). I concur in the reversal of the judgment and in the remanding of the cause for a new trial.
Under the evidence in this case, the value of the horse was exclusively a question of fact for the jury. The instruction given, to the effect that if the jury found from the evidence that plaintiff is entitled to a verdict, that he is entitled to the full amount, is clearly erroneous. It was an invasion, by the court, of the province of the jury. The full amount referred to in the instruction was the value of the stallion, as alleged in the complaint.