148 N.W. 4 | N.D. | 1914
This case has heen before this. court on -two former occasions (19 N. D. 450, 125 N. W. 1054, 23 N. D. 1, 135 N. W. 665). It is an action to recover damages for the loss of certain horses killed by the defendant railway company upon its right of way. The appeal is based on certain errors of law alleged to have been committed in the introduction of evidence, in alleged erroneous instructions, and upon the claim that the case should have been taken from the jury on account of the fact that the evidence showed contributory negligence on the part of the plaintiff in failing to properly fence in his horses, and that there was at any rate no proof of any negligence or breach of duty on the part of the railway company.
On these questions, that is to say, when the engineer first saw the-horses, and whether after seeing them he exercised reasonable care to-prevent the accident, taking into consideration his duty to himself and his fellow employees, there is serious conflict in the evidence, and there-being such a conflict, we are of the opinion that the trial court did not. err in submitting the case to the jury; nor do we believe that we are-justified in asserting our judgment against that of the jury or in overruling its conclusion. The law in such cases has been repeatedly announced by this court. Farmers’ Mercantile Co. v. Northern P. R. Co. 27 N. D. 302, 146 N. W. 550; Pyke v. Jamestown, 15 N. D. 157, 107 N. W. 359; Thomp. Neg. §§ 3790, 3791; Kunkel v. Minneapolis, St. P. & S. Ste. M. R. Co. 18 N. D. 367, 121 N. W. 830; Rober v. Northern P. R. Co. 25 N. D. 394, 142 N. W. 22.
According to the engineer’s own statement, he first saw the animals, when he was running along a perfectly straight grade at about daylight,, that is to say, about 6:25 in the morning of March 12, 1907, according-
It may be that if the engineer’s testimony was true, he could not have stopped his train in time to have averted the accident, hut was it true, and was the jury bound to so-consider it? He testified, it is true, that he did not see the horses until he was within 600 feet of them, and that he saw them as soon as it was possible to see them with the light of the headlight on the engine; that it was just before daylight ; was dark and cloudy; and that he could not see beyond the rays of the headlight. But the witness Corbett testified that he told him after the first trial that the reason he did not stop his train was “that he thought the damn fools would get off the track,” and all of the witnesses agree that the horses galloped for some distance ahead of the engine, and that there was no attempt whatever to even slow down the train. The failure to stop, it is, true, is explained by the engineer in the statement which is no doubt true, that if the accident had to happen, it would be safer to keep up full speed, as in that case the train would be less liable to be derailed. It is quite clear, however, that it is one thing to stop a train and another to slow it down; that much less time and space is needed for the latter operation, and that the differ.ence in time and space might have materially aided the galloping-animals, which were, of course, themselves making distance, and might, as far as we know, have heen able to travel as fast as the slowed-down train. The testimony, too, of the engineer as to the distance at which he saw and could first have seen the horses,- is by no means certain, and
The case was one for the jury to decide, and the coixrt did not err in refusing to direct a verdict for the defendant. It is in many respects similar to those of Sheldon v. Chicago, M. & St. P. R. Co. 6 S. D. 606, 62 N. W. 955, and Lighthouse v. Chicago, M & St. P. R. Co. 3 S. D. 518, 54 N. W. 320. In the former of these cases, the court said: “It is further contended that the court erred in admitting evidence as to the distance the animals could have been seen in the daytime on the track in the vicinity of the accident, but we are of the opinion that this evidence was properly admitted. Had the engineer stated how far the animals were ahead of the train when he first saw them, it would not have been conclusive upon the jury. They had a right to consider all of the facts and circumstances tending to show
In the latter case, the court among other things said: “The engineer testified that he did not discover the horses on the track until he was within 30 or 40 feet of them. The conductor says he first saw them about the same time as the engineer, and when they were 25 or 30 feet from the engine. .The jury by their special verdict found that they were 10 rods from the engine when they were first discovered by those in charge of the engine, and that reasonable efforts were not made after such discovery to stop the train. The only direct testimony as to when the horses were first discovered was as above stated, and necessarily comes from those in charge of the engine. The jury found against such direct testimony, so that we must look to the indirect and circumstantial evidence for support for the verdict, if it can be supported. The accident occurred in the evening, but the witnesses do not agree as to the conditions of the night. Defendant’s witnesses say it was very dark, the engineer testifying, ‘I don’t know as I have ever seen it so dark.’ On the other hand, one of the plaintiff’s witnesses says that it was a bright night; that it was light enough so that he could and did distinctly see the horses at a distance of 120 rods. Another witness for the plaintiff says that he saw the horses immediately before the accident, running on the track before the engine, from his house, which was 140 rods from the track. How light or how dark it was, was material in assisting the jury to determine when the horses were in fact first discovered by those on the engine. The engineer had testified that the headlight was in proper order and was burning, that his eyesight was good, and that at the time of and immediately before the accident he was looking forward out of the front window of his engine, along the track. The conductor says that both he and the engineer were keeping a ‘sharp lookout,’ and each testifies that he did not discover the horses until within 30 or 40 feet of them. The jury might well regard these statements as conclusive under some circumstances, but not under others. They might accept it as a candid statement of the fact, if they believed from the evidence that it was a dark night, or they might decline to accept it if they found it was a bright, light night; for it is within the
Again in the case of Clair v. Northern P. R. Co. 22 N. D. 120, 132 N. W. 776, we find the following: “When the engineer first saw the horse on the track it was about 200 feet ahead. Tie testifies that he could have stopped the train within 300 feet that night. He also testifies that he did nothing to stop it until he was enabled by the light to see that the object or shadow was a horse. Owing to the curve in the track, he says he was unable to distinguish what the object was as soon as he could have done so if the track had been straight; and he further says that he set the emergency brake, although he knew that the train could not be stopped in time ... to avoid killing the animal, if it did not jump from the track, as stock sometimes does. He also says that if he had gotten the train under control, or started to do so immediately, he would not have struck the horse nearly so quickly. The horse was running away from the train when the engineer first saw it, and when it was struck by the engine. 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 hound to use only ordinary and reasonable means to save the trespassing animals, after they are seen, consistent
We realize that in his opinion in this case, Ex-Chief Justice Morgan distinguished the case from the one at bar as it appears upon the first appeal, in Corbett v. Great Northern R. Co. 19 N. D. 450, 125 N. W. 1054, by saying: “The facts of this case are clearly distinguishable from the present case. In the Corbett Case the evidence of the engineer is unequivocal that he did everything in his power to stop the train,” and that the learned judge held that no 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 learned chief justice, however, misunderstood or misstated the Corbett Case, as neither in the former trial nor in the present one was there any evidence of any attempt to stop or to lessen the speed of the train, but, on the other hand, the free admission of the engineer that no such an attempt was made. The only reason, indeed, why this court reversed the judgment on the former appeal was that the plaintiff had introduced no evidence as to the distance that one could see
We find no reversible error in the admission of the testimony of the witness Corbett as to the hoof tracks upon the right of way, and that the horses' appeared to have galloped along such right of way for some distance. Even though he did not, and could not, testify as to the exact time at which they were made, or whether they were made before or after the animals were discovered by the engineer, these facts could be shown by the location of the tracks as compared with the tool house, which seems to have been a pivotal point in the testimony of the witnesses as to when the engineer could or must have seen the animals. The witness testified as to his ability to distinguish from the tracks of the animals whether they were galloping, trotting, or standing still, and that this is possible is a matter of common knowledge. The tracks and their condition, indeed, was a matter pertinent to the issues in the case. It is true that the answer that the horses had run ahead of the train was not responsive to the question asked, which was merely how far those horses were running down the track, or galloping, but that when they were galloping, they were galloping ahead of the engine, is so abundantly proved by the testimony of the other witnesses and even by that of the engineer himself, the distance merely being the matter at issue that we hardly can believe that the defendant was prejudiced by that answer or by its lack of responsiveness.
Nor do-we think that an error was committed in permitting the cross-examination of the engineer as to his duty to keep a lookout when approaching crossings. The question at issue was whether the engineer had seen the horses or not, or whether he told the truth when he said that he did not see them until within 600 feet. The question was proper on cross-examination as tending to test his credibility in this respect. lie, too, had before stated, and without objection on the part of his counsel, that the rules of his company provided that he should be constantly alert and watch the track.
Defendant and appellant next complains that the court erred in taxing against it the costs of the former trial in the court below. Al
We think that it is correct in its contention. The general rule seems to be that where “a new trial is granted on the ground that the evidence is insufficient to support a verdict, or that the verdict is contrary to the evidence, the applicant is required to pay the costs of the former trial, as a new trial is granted as a matter of favor, but where the verdict is perverse, that is, so clearly against the weight of evidence or contrary to the evidence as to create the presumption of mistake or improper motives of the jury, a new trial should be granted without imposing costs. The test ajiplied seems to be whether the party has in any way been in fault and made the new trial necessary. See 14 Enc. PI. & Pr. 941, 944; Schweikhart v. Stuewe, 75 Wis. 157, 43 N. W. 722; Becker v. Holm, 100 Wis. 281, 75 N. W. 999; Jarrait v. Peters, 151 Mich. 99, 114 N. W. 870.
On the former appeal the judgment was reversed because of incorrect instructions and failure of proof, largely due to an incorrect theory of the^ case which was entertained by the plaintiff. The defendant was hardly in fault, and the new trial was not made necessary by it. It was, as a matter of fact, in the nature of a privilege to the plaintiff. These costs being improperly taxed, it also follows that the trial court was not justified in imposing the $15 terms upon the defendant upon the motion for a review of the same.
We do not believe, however, that the defendant is entitled to the $5 charge claimed' by it under ¶ 3 of § 7174, Bev. Codes 1905, and which provides among the cost items, “to either party when a new trial shall be had for all proceedings after the granting of and before such new trial, $5.” These costs are clearly costs of the new trial or proceedings. The charge does not belong to the former trial, nor yet to the former appeal. It therefore belongs to the successful party upon the second trial.
The- judgment of the District Court is modified by reducing the amount awarded to the plaintiff to the extent of $89.30, the amount of