112 N.W. 972 | N.D. | 1907
This is an action for the killing of certain cattle and the injury of others, the property of the plaintiffs, by a railway train of the defendant, on the defendant’s right of way in section 1, township 145, range 66. The verdict was for plaintiffs in the sum of $90. Defendant’s' motion for a new trial was denied, and from this order defendant appeals.
In their complaint the plaintiffs allege damages in the sum of $100, and charge the defendant, through its agents and employes, with carelessness and negligence in running and operating its train, which resulted in the killing and injury. The defendant answered, admitting the killing of certain cattle on the 7th day of November, 1903, and that they were, in their belief, the property of the plaintiff Carr, and charges them with trespassing on the right of way and railway tracks of the defendant at the time of such accident, and denies that the damages exceeded $60, and, as to other allegations of the complaint, makes general denial. The case was tried to a jury, and the plaintiff Carr testified as to tire date, location, killing, and injury, and that the damage was $90. On cross-examination it was shown that he lived one mile south of the railway track, and 'had a section of land there, and the plaintiff Erickson had a half interest in the stock, and that at the time of the accident they were pasturing their cattle by letting them run at large on the prairie, and inclosing them in a„ corral at tire house at night. The morning before the accident occurred the cattle had been turned out from the corral with no one in charge. There were 50 head, and they had been driven onto 320 acres of grass land south of the buildings on tire side of the track where they were turned out. We infer from the
By section 4297, Rev. 'Codes 1905, the killing or damaging of stock by -cars or locomotives along the railroad is made prima facie evidence of -carelessness and negligence on the part of. the ■corporation. It therefore became necessary for the defendant to
The case at bar, as relates to the acts of both plaintiffs and defendant, stands upon a different state of facts. The buildings of the plaintiffs from which the cattle were driven were one mile from the railway tracks, and the cattle had not before been known to go upon the right of way. There was no inducement for them to go, because it was stubble on that side, while it was' grazing land upon the side where they were turned out. The evidence, as it stood at the time this motion was made, it seems to us, leaves the question of contributory negligence, if in the case at all, a proper one for submission to the jury. Contributory negligence, as well as negligence of the defendant, are questions for
It will be observed that there was a conflict in the testimony as to the condition of the atmosphere on the day of the accident. If, as plaintiffs’ witness testified, it was clear and bright, with a clear view of the track unobstructed for a very long distance, and
The next assignment of error relates to the instructions of the -court to the jury, contained in the following paragraphs: “(1) The party who last has a -clear opportunity of avoiding the accident, notwithstanding -the negligence of his -opponent, is dearly re- - sponsible for the accident. The mere fact -that the plaintiff was injured while trespassing on the defendant’s premises, and would not have been injured if he had not been so trespassing, is not of itself enough to convict him of -contributory negligence. (2) It is well settled that the plaintiffs may recover damages for injury caused by the defendant’s negligence, notwithstanding the plaintiffs’ -own negligence in exposing their stock to injury, if such injury was approximately -caused by the defendant’s -omission, after becoming aware of the -danger of the plaintiffs’ property, to use ordinary care for the purpose of avoiding injury, (3) If yo-u believe from the evidence in this case that the railway company had' its train properly equipped with airbrakes and modern appliances,, and that after the stock was discovered -to be in a place of danger said employes exercised ordinary -care not to injure them, yo-u m-ust find for the defendant. If, on the other hand, you find from the. evidence in the case that the defendant’s employes did not use ordinary care not to injure the stock after they were -discovered to
The trial court, among other things, in -addition to portions of the charge on which error is assigned, instructed the jury that the fact that the “cattle were trespassing upon the track does not absolve the company from preventing injury upon them, if by the exercise of due care, it could be avoided. What -is due care on the part of the company under su-c'h circumstances is necessarily a question of fact, and depends upon the -circumstances of each case. Gentlemen, you are the judges of the facts in this case, and probably the pivotal fact in this case to be determined is this: Did -the railway company through its employes use -ordinary -care to- prevent injury to the stock after they discovered them in a position of danger? The defendant’s -duty was to exer-cise ordinary -care not to injure said stock after it was -discovered to be in a place of known danger. As to whether or not the defendant’s engineer discovered the stock in due time to -avoid injury-ing them is a question of fact for you to -decide. It is also a question of fact for you to decide when [whether] these cattle were in a place of danger. That is the pivotal question in this -case.” During the delivery of the charge to the jury, counsel for -defendant interrupted -the -court with an inquiry regarding instructions -concerning contributory negligence, and, after the -completion of the charge, he requested the court orally to- instruct the jury that, under no circumstances can the plaintiffs recover, if it appears that -this injury was due to contributory negligence of plaintiffs in permitting the
The defendant did not plead contributory negligence as a defense, and, for this reason, it was not entitled to an instruction on the subject. Vol. 11, Enc. Pl. & Pr. p. 162, n. 1, and cases cited. Section 7021, Rev. Codes 1905, requires the court to charge the jury 'only as to the law in the case, .and prohibits any instruction in a civil case, unless it has first been reduced to writing, and provides that either party may request instructions to the jury, but that each instruction so requested must be in writing and on a .separate sheet. This is a salutary provision of law intended to give the court opportunity to consider any requests for instructions, •and is mandatory. Vol. 11, Enc. Pl. & Pr. p. 254. But even if the failure of the defendant to plead contributory negligence did not relieve the court of the duty of giving instructions on that subject, if properly requested, it was not error under the circumstances to refuse the oral request. The court had fairly covered the law applicable to the case, and, if the defendant desired more explicit instructions on the subject, they should have been presented to the court in writing with a request that they be given. Vol. 11, Enc. Pl. & Pr. p. 261, n. 7; McCummins v. State (Wis.) 112 N. W. 25. We fail to find any prejudicial error in the record.
The order of the district court denying defendant’s motion for a new trial is affirmed, with costs to plaintiffs.