Chicago, Rock Island & Pacific Railway Co. v. Huggins, 4 Indian Terr. 194

Chicago, Rock Island & Pacific Railway Co. v. Huggins

4 Indian Terr. 194 | Ct. App. Ind. Terr. | 1902

Raymond, J.

In order that plaintiff may recover in this kind of an action, there must not only be proof of the killing of the stock, but that the’ killing resulted from the lack of ordinary care on the part of the servants of the railway company. If there is no negligence, there is no liability. Prooffof the killing of the stock is not sufficient. The plaintiff must go further. ■ He must aver and prove negligence on the part of the railroad company. “The burden of proof is on him who complains of negligence.” , Pol. Torts, p. 545. “Negligence in the; management and running of a train is not made out by proof of the killing of stock by it.” Railroad Co. vs Patchin, 16 Ill. 198, 61 Am. Dec. 65; Railroad Co. vs Morthland, 30 Ill. 451; Railroad vs *200Utley, 38 Ill. 410; Railroad Co. vs Whalen, 42 Ill. 396; Railway Co. vs Barrie, 55 Ill. 226; Railroad Co. vs Lynch, 67 Ill. 149. “The omission to ring a bell or sound a whistle does not render a railroad company liable for an injury to animals, unless it is made to appear that such signal would have prevented the injury.” Railroad Co. vs Phelps, 29 Ill. 447; Railway Co. vs Jones, 76 Ill. 311. “The-weight of authority is to the effect that a plaintiff who is seeking to recover for animals injured on a railway track must not only show the omission of signals, but must show that such omission was the cause of the injury.” Elliott, R. R. § 1206. In the case of Holman vs Railroad Co., 62 Mo. 562, the Supreme Court of Missouri held that, when it is alleged that the stock was killed by a train of cars at a point where the law requires signals to be given, the testimony must show or tend to show that the failure to give the statutory signals caused the accident; and that, where the only proof in such a case was that the animal was killed at a public crossing by a train, and that no signals were given as required by law, it is the duty of a court to direct a verdict for the defendant. In Railroad Co. vs Phelps, 29 Ill. 447, the court said: “The statute requires railroad companies to ring a bell or sound a whistle at all road crossings, and on default they are made liable to a penalty of fifty dollars and for all damages sustained by reason of such neglect. No witness could state that this injury resulted in consequence of a failure to ring the bell or sound the whistle. The injury did not occur at a road or street crossing, and it must be inferred that a failure to ring the bell or sound the whistle at the street crossing, did not produce the injury, unless by doing so it would have prevented the animal from attempitng to cross the road as it- did. And, 'as one of the witnesses stated, no person could tell what a horse would have done if the bell had been rung or the whistle had been sounded. We think there was a total failure of evidence to prove, or evidence' that even tended to prove, that the injury was the result of the failure.” *201In Railroad Co. vs Linn, 67 Ill. 109, the point decided is stated in the syllabus as follows: “While the statute imposes a penalty on a railroad company for a mere omission to comply with its' requirements, more is required to create a liability for injury to person or property. In the latter case, when no other negligence is proved, the injury must be by reason of the neglect to ring a bell or sound a whistle, and the proof must show that it was the probable result of the omission.” In course of the opinion the court said: “The statute imposes a penalty upon corporations for the mere omission to comply with its requirements; but more is required to create a liability for injury to persons or property. In the latter case the injury must be by reason of the negligence. The proof must show that it was the probable result of the omission. In this case it is not a reasonable presumption that the mare was killed in consequence of the neglect to ring the bell or sound the whistle. There is not even a strong suspicion created.” In Vallance vs Railroad Co. (C. C.) 55 Fed. 364, the court said: “The only evidence tending to show that the failure to ring the bell or sound the whistle contributed to the injury was such as could reasonably be inferred from the presence of the child at or near the crossing with injuries of the character described. In order to entitle the plaintiff to recover upon this ground, the jury were instructed that they must find from the situation that the omission to ring the bell or sound the whistle contributed to the injury. There was no evidence that the child was precocious, or that it had been warned that a railway whistle or bell was a signal of danger . Therefore, upon the conceded'facts on this branch of the case, the finding of the material and necessary fact that the failure to whistle or ring the bell contributed to the injury in any way is against the weight of the evidence, and an inference or deduction so unreasonable as to compel the conclusion that the jury were controlled by prejudice.” “It is a matter of common knowledge that the Indian Territory is a grazing country, where cattle in *202great numbers run at large. The owners of cattle are not bound to fence them up, and the railroad company is not bound to fence them out.” Railroad Co. vs Washington, 1 C. C. A. 286, 49 Fed. 347. “Where a domestic animal running at large by the sufferance of the owner gets upon a railroad track at the crossing of a highway where the company is not required to fence, and is killed by a passing train, the company will not, in general, be liable, unless its servants, after they discovered the animal, might, by the exercise of proper care and prudence, have prevented the injury.” Railway Co. vs Barlow, 71 Ill. 640. “Where stock are killed or injured within a city, town, or village in Illinois where a railroad is not required to fence, there can be no recovery had by the owner without the averment in declaration and proof that the servants of the company were guilty of negligence in running its trains.” Railroad Co. vs Barton, 80 Ill. 72. “Where a railway company is under no statutory liability for injury to stock by its trains by reason of its road not having been fenced, the only ground of .liability will bé that the injury might have been avoided by the exercise of ordinary care and prudence, and that its servants in charge failed to exercise such care and prudence.” Railroad Co. vs Spencer, 76 Ill. 192. “A railway company is never authorized to diminish the speed of its trains in order to avoid injury to cattle on the track, if, by so doing, it augments the danger to passengers.”. Wood, R. R. p. 1851. “In the absence of statutory enactments regulating the speed of railway trains, railway companies may run their trains at any rate of speed which may best suit their convenience. They are not bound to run at a slower rate of speed because animals may get up^on the track ánd may receive injuries by reason of such high rate of speed. Railway companies being engaged in the business of conveying passengers and property, and that business being regarded of the highest importance, the speed of trains may be regulated with that end in view. The slight private interest which may exist *203because of danger of injury to animals straying upon the track must give way to the greater interests which exist in favor of the public.' No rate of speed is negligence per se. * * * Where animals are discovered upon the track, the engineer is ordinarily bound to exercise some degree of care to prevent injuring them, if such care can be exercised consistent with the safety of the train or its passengers. If danger would likely result to the train or its passengers from an effort to stop or slacken the speed of the train, there is no obligation to stop or slacken the speed; for the safety of the train and its passengers is of the highest importance, and takes precedence over the safety of animals on the track; and an engineer will be justified in increasing the speed of his train, so as to throw animals away from the track, where such a eourse will secure the greatest safety for the train and the property and passengers being carried thereon. * * * And where it appears that an effort to slacken the speed would not avoid the collision with the animals, the company is excused from making.the effort.” 3 Elliott, It. ft. p. 1850, § 1204.

If there is no proof of negligence, the court should instruct the jury to find for the defendant. We are of opinion that there is no proof of negligence upon the part of the railroad company. In fact, the testimony of the engineer in charge of the train negatives the charge of negligence, and the plaintiff • offers no evidence to support his contention that the stock was killed through the negligence of the defendant company. The court is of the opinion that the peremptory instruction asked for by the defendant in the court below should have been given.

Reversed and remanded.