132 N.W. 776 | N.D. | 1911
This is an action to recover damages against the defendant for the killing of plaintiff’s horse, through the alleged negligence of the defendant’s employees, in operating a train on January 4, 1905. The horse was killed at about 1:30 a. m:. of said day, while it was on the defendant’s track, some considerable distance from a. crossing. The train was running between 20 and 25 miles an hour, and consisted of an engine with eight freight cars. The engine and;
At the close of the plaintiff’s testimony the defendant moved for a directed verdict, on the ground that the evidence was insufficient to justify a verdict, and that no negligence on the part of the defendant had been shown. The trial court denied the motion, and submitted the question to the jury, who found a general verdict in favor of the plaintiff, and assessed his damages at the sum of $150, together with interest, amounting in all to the sum of $181.06. Two special questions were also submitted to the jury, and in their answers to the same the jury found that the defendant was guilty of negligence, and that such negligence-consisted in the failure of the engineer to use all means at his command to stop the engine. The defendant moved for a new trial, and also for judgment notwithstanding the verdict, and the court denied both motions. The defendant perfected an appeal from the order denying judgment notwithstanding the verdict, or a new trial, and also appealed from the judgment.
When the engineer first saw the horse on the track, it was about 200 feet ahead. He testifies that he could have stopped the train within 300 feet that night. He also testifies that he did nothing to stop it
In view of these undisputed facts, it remains for us to determine whether a verdict should have been directed for the defendant. It has been held in this state, in several cases, that when animals are on the railway tracks between crossings they are trespassers, and that railway companies owe no duty to watch for them, but that they are bound to use only ordinary and reasonable means to save the trespassing animals, after they are seen, consistent with the safety of the train, its crew, and passengers. Cumming v. Great Northern R. Co. 15 N. D. 611, 108 N. W. 798; Wright v. Minneapolis, St. P. & S. Ste. M. R. Co. 12 N. D. 159, 96 N. W. 324.
It is admitted that the engineer did not sand the rails, and that doing this would have materially reduced the speed at once, in connection with the use of the emergency brake. The animal was running away from the train during all the time, which is a fact to be considered. In view of the entire record, we think it was a question for the jury to say whether all reasonable precautions were taken by the engineer, and whether the animal was killed by reason of not using ordinary and reasonable means to avoid the killing of it.
It is true that the evidence is undisputed in this case; but that does not necessarily make it a question of law for the court to say whether there was negligence or not. If, on consideration of the undisputed facts of the case, impartial minds may fairly draw different conclusions, it becomes a question for the jury, and the court shall pass upon the undisputed facts only when but one conclusion can fairly
It is claimed that this case is controlled by Corbett v. Great Northurn R. Co. 19 N. D. 450, 125 N. W. 1054, and Hodgins v. Minneapolis, St. P. & S. Ste. M. R. Co. 3 N. D. 382, 56 N. W. 139, but we think "the facts of these cases are clearly distinguishable from the present case. In the Corbett Case, the evidence of the engineer was unequivocal that he did everything in his power to stop the train, and we held that mo question presented itself to throw any doubt upon the evidence of the train employees as to the exercise of the diligence required to protect the trespassing animals. The same is true of the Hodgins Case. It was therefore held in these cases, and properly, that the statutory presumption of the negligence was completely overthrown, and that
Several exceptions were taken to the charge of the court in reference-to the negligence of the defendant. These exceptions are based upon the claim that the evidence was undisputed, and that it was therefore-the court’s duty to decide the question. What we have said on the-denial of the motion for a directed verdict disposes of these assignments.
. Error is also specified on that portion of the charge wherein the court-stated'that the question of the credibility of the witnesses was for the-jury to determine. It is claimed that these instructions, in effect, stated that the engineer’s testimony might not be worthy of belief, inasmuch as he was the only witness on the question of the operation of the train. There were other witnesses that testified in the case, and the engineer’s testimony was not particularly referred to, nor was there any particular reference to witnesses’ testifying on the question of defendant’s negligence. We therefore conclude that the instruction was-without prejudice; and the specification without merit.
It is claimed, also, that the trial court misdirected the jury in its. instructions on the question of the statutory presumption of negligence. The claim is that the charge stated that when animals killed by the locomotive or cars are found along a railroad a presumption of fact is raised that-they were killed through the negligence of the defendant. We think a reading of the instruction makes it clear that, the court stated that such presumption is only a rebuttable presumption; in other words, that it was only a legal presumption, existing only until overcome by evidence. What we have- said disposes of all the questions arising on the record including those arising on the motion for a new trial.
For the reasons given, we conclude that the judgment should be affirmed, and it is so ordered. All concur.