99 Minn. 253 | Minn. | 1906
Verdict in favor of respondent for $50 damages for the killing of an English setter by appellant company. Two witnesses on behalf of respondent testified that they were driving in a southerly direction on the west side of the street car tracks on Snelling avenue, in the city of St. Paul, and noticed the two dogs fighting between the rails of the east track, and that they remained there for several minutes in fierce combat and until the north-bound car struck them; that the car was running about twelve or fifteen miles an hour, and that the motoneer made no attempt to check the speed of the car and did not blow any whistle or ring any bell. The country was level for a distance of nearly three hundred feet, and, if the testimony of these witnesses be accepted as true, then, if in the exercise of his usual duties, the motorman must have seen the dogs on the track. This evidence was strongly denied by the motorman and other witnesses of appellant, but was credited as true by the trial court' and jury, and we are bound by their decision.
In Smith v. St. Paul City Ry. Co., 79 Minn. 254, 82 N. W. 577, it was stated that a street car company was not required to stop its cars, when running at a legal or reasonable rate of speed, to avoid collisions with dogs; that ordinarily dogs may be presumed to take care of themselves, and the motorman may act on such presumption.. This was a correct statement of law with reference to the facts of that case, and we adhere to that opinion, believing it to be the true doctrine that railways should not be held to the same degree of care with respect to dogs as to other animals running at large, such as cattle and horses.
As to such animals the rule is stated in Mooers v. Northern Pacific R. Co., 69 Minn. 90, 71 N. W. 905, where it was held that locomotive engineers are not bound to keep a lookout for animals trespassing on the track, nor to presume they will be there, but, having notice of their presence and that they are liable to injury, are bound to use reasonable care, at least, to avoid injury. In that case some horses escaped from a pasture and were running on the railroad track ahead of an approaching train, and the engineer ran them down without making any effort to avoid the collision. We apprehend that the same rule should not be applied in the case of dogs, owing to their superior intelligence, agility, and instinctive ability to get out of dan
Order affirmed.