35 Colo. 498 | Colo. | 1906
delivered the opinion of the court:
This.is an action to recover the value of a horse alleged to have been killed through the negligent operation of a train of cars by the engineer of the appellant. Judgment in favor of appellee for $100 and costs. Appellant brings the case here for review.
On September 20, 1893, the appellee (plaintiff below) found a horse that belonged to him lying-dead by the side of the defendant’s railroad track, partially buried, with severe bruises upon his right shoulder and other portions of the body, at the foot of an embankment or fill on which the railroad track of appellant was located, about 1,500 feet east of a deep cut between Box Elder Creek and Keene station. Appellee and one of his witnesses testified that there was a mark about six feet wide on the side of the incline of the embankment extending up about twelve feet from the bottom which they took to be an indication that' the horse had slidden down the embankment at that place. They found no marks that indicated that the horse had been upon the track or top of the embankment; that the injuries to the horse were such as would result from his being-struck by a train. The only direct evidence that a horse was struck by a train operated by the employees of the appellant on that morning, in that vicinity was that of Louis Bartlett, who was called by the plaintiff. He testified that he was a locomotive engineer in the employ of the appellant company; that he ran an engine with a train of seven passenger coaches known as “The Chicago Special” from Denver east on the morning of the 19th of September, 1893; that as he passed out of a deep cut east of Box Elder Creek, and while running on schedule time of about 35 or 40 miles an hour, he saw a bunch
Prom Box Elder: Creek the railroad ascends a very steep grade, near the center of the cut, which is about one-half mile long; the highest point is reached, and the road descends on a down grade eastward from that point. Mr. Thompson, a witness on behalf of the plaintiff, a. practical railroad engineer of twenty years ’ experience, testified-,that á train of seven coaches with all the latest improvements, including Westinghouse air-brakes, on a perfectly level track, ought to have been stopped in 200 yards. Tf slightly down grade, it would make a difference of perhaps 50 or 100 yards; that in 200 yards, the engineer ought to have been able to reduce the speed of the train so that when it reached the horse it would be going less than ten miles an hour.
If, therefore, the engineer discovered the horse at the earliest possible moment, and he was then .100 yards down the track, it is very evident from the foregoing testimony that it was impossible to have stopped the train in time to have avoided the collision. But counsel for appellee contend that the jury was at liberty to accept the fact that the body of the horse, in the condition described, being found
This inference is not only unwarranted in view of Bartlett’s testimony, but, as stated by the court of appeals in its opinion on the former review of this case, it is far-fetched and insufficient in itself to sustain the conclusion even that the horse was kille.d by appellant’s train.
It is furthermore evident that if it is to be inferred that the horse was struck and killed at the point where found, that he was struck by some other engine than the one operated by Bartlett, in which event there is no evidence of the circumstances under which, or the manner in which, the collision occurred, and consequently no evidence of negligence on the part of the employees of the defendant company. But, as above stated, this inference cannot be indulged in the face of Bartlett’s testimony. The plaintiff, by calling him as his witness, vouched for his credibility, and while he might be permitted to contradict his statements by other competent witnesses if he was able to do so, he would not be permitted to impeach his credibility, or otherwise discredit his testimony. He testified fully and with apparent candor to all the circumstances -under which the accident happened. There was no evidence that tended to show that his testimony was not true. In these circumstances, the jury had no right to arbitrarily and capriciously disregard his testimony, or any part thereof.—Lomer v. Meeker, 25 N. Y. 361; Newton v. Pope, 1 Cowen 109; McMahon v. People, 120 Ill. 584; Drew v. Watertown Ins. Co., 6 S. Dak. 335; Railway v. Shoecraft, 53 Ark. 96; Evans
It therefore appearing from the uncontradicted and unimpeached testimony of Bartlett that the company was in no way in fault, the court ought to have directed a verdict for appellant. We are justified in .assuming that the appellee can malie no other or different showing upon another trial. The judgment will, therefore, be reversed, and the cause remanded with directions to dismiss the action. •
Reversed.