180 N.W. 792 | N.D. | 1920
Lead Opinion
This is an appeal from a judgment against the Director General of Railroads and the railroad company for $500 and interest, as the value of four poor, senseless horses that were turned out on the prairies in the zero months of January and February, 1918, to live or die, survive or perish. It was on a zero'night in February, at a time when all good and valuable horses should have been at home and in bed, that the poor, senseless animals were killed. And, under the circumstances, who will blame the animals or reflect on their intelligence if they deliberately committed suicide by running across the railway in front of a train running at 50 miles an hour? All their troubles and starvation was ended in a moment.
The judgment is against the railway company and the Director General, and the appeal is only by the company, and yet before trial it was stipulated that the Director General should be substituted as defendant in lieu of the company. The verdict is for the plaintiff, but does not specify that it is against either defendant. For that reason alone, it seems the judgment should be reversed.
The complaint is based on negligence. It is for the negligent killing of the horses, and the statute makes the killing prima facie evidence of negligence. In the absence of any proof, except the killing, the law presumes negligence, but when the facts and circumstances are proven, then the presumption no longer prevails. Then the case must be decided on the evidence, and the burden of proof is on the plaintiff. At the time of the killing the train consisted of seven coaches. It was running northwest from AYyndmere on schedule time at about 50 miles an hour. It was a first-class train, and it was well equipped with all modern 'appliances and safeguards, and with a bell which was rung automatically and continuously when the train was in motion. By statute it is
Of course the value of the horses was a material question. Elmer Brown, a son of the plaintiff, was called and testified to their value, and condition. Then, on cross-examination, he was asked:
“Q. Had not the horses been permitted to run at large on the prairie for a greater part of the time during the winter before the killing
“Q. When did you see the horses last before the accident ?”
“Q. Had you anything to do with the care of the horses ?”
The court erred in sustaining an objection to those questions, as their manifest purpose was to show the competency of the witness and the value of the animals. Horses that are turned adrift on the prairie in the months of January and February to live or die, survive or perish, and to keep from freezing, are not like horses that are kept in a warn stable and fed hay and oats. Good, valuable horses are not kept in a cruel and careless manner, adrift on the prairie in January and February.
The majority of this court are of the opinion that prejudicial error occurred in the admission of testimony by witnesses that they did not hear the train bell ringing while working near the track. Although the parties stipulated before the trial that the Director General should be substituted as a defendant in this action, nevertheless, the judgment, as in fact entered pursuant to the verdict, was against both the railway company and the Director General. The appeal was argued on the merits. When, on oral argument, a member of this court suggested that the defendant railway company was really not a party, counsel for both sides immediately disclaimed any desire that the manner in which the verdict was returned, or the appeal taken, should, in any way, affect the consideration and determination of the merits of the appeal. In view of the manner in which the case was handled in both courts, we believe it would be unjust to treat the case as one against the Director General alone, and the appeal as one taken by the railway company from a judg
Dissenting Opinion
(dissenting). This action was commenced by the issuance of a summons dated the 25th day of February, 1919, and which was served on the defendant on the 26th. Plaintiff’s complaint was served at the same time. It stated a cause of action against the defendant, based upon its careless and negligent operation of its locomotives, engines, and cars, by reason of which, at a certain railroad crossing on defendant’s railway line, such engines and such locomotives and cars were run against, upon, and over certain horses, the property of plaintiff, of the alleged value of $650.
The defendant answered, and, among other defenses, interposed a general denial, and also the defense of contributory negligence, and, as a further defense, pleaded that its railway line was, on the 1st day of January, 1918, taken over by the Director General of Railways, pursuant to acts of Congress and proclamations of the President, and that the possession, use, control, and operation of it had been, since then, .and then was being, exercised by such Director General.
Exhibits were attached to the answer, showing the proclamation of the President of December 26, 1917, relative to government control of railroads ; and also an exhibit which is a copy of the proclamation of the President made on the 29th day of March, 1918, authorizing the Director General of Railroads to exercise powers conferred on the President by Congress; and copies of certain orders of the Director General were attached to the answer as exhibits. This answer was dated March 27, 1919, and was served on the plaintiff March 28, 1919.
On the 23d day of April, 1919, the following stipulation was entered
The action did not come on for trial until January, 1920, nine months or more after the time of entering into the above stipulation. The result of the signing of the stipulation was to make the case one pending against the Director General, and not against the railroad company, and thereafter the railway company was not a party to the action.
At the time the verdict of the jury was returned, the only defendant in the case was the Director General, and this is true of the order for judgment, and the record so shows. The ordering of judgment against the railroad company, which was no longer a party to the action, was, no doubt, inadvertently done, and the same is true of the entry of judgment. The only judgment that could properly be entered in such case, upon the plaintiff recovering judgment, was one against the Director General, who was the only person then liable. ITence, the judgment could not be joint. The court had no right, jurisdiction, nor authority to enter a judgment against the defendant railway company'; for it was not then a party to the action, and at no time during the trial, nor since, was it a party to the action, and its entry thereof was inadvertent. There was no joint liability of the Director General and the railway company, nor a joint and several liability, but only liability on the part of the Director General, the only defendant in the action at the time of the trial.
The judgment having been entered against both, and the defendant railway company having appealed, and the Director General not having appealed, and the railway company not being a party to the action at the time of the trial, or the entry of the judgment, the judgment should be reversed and dismissed as to it, and affirmed as to the Director General.