56 N.W. 139 | N.D. | 1893
This action, is brought to recover damages for the killing of plaintiff’s horse. The horse was killed in the evening, at about 8:45 o’clock, on May 24th, 1890, by being run over by defendant’s locomotive. The accident occurred on a bridge at a crossing of the Maple river, a" short distance east of Boynton station, in Dickey County. When struck by the locomotive, the hind legs of the horse had slipped through the ties of the bridge, so that the animal could not extricate them, and the horse was partly on the railroad track and partly off the track and on the bridge. The animals head was facing the west, and the locomotive and train were going east. The train, besides the locomotive
The testimony of the conductor, so far as it bears on the points made in the assignments of error, corroborates that of the engineer, but the appellant claims that there is a material conflict in the testimony of the fireman and engineer as to where the train was with reference to the position of the horse when the horse was discovered by the engineer and fireman. It will be necessary to consider this feature of the fireman’s testimony, which is as follows: “Q. Where were you, and what were you doing, on the evening of May 24th or 25th, 1890, the time of this accident? A. I was filing with Mr. Furtny [the engineer] on a special.” Speaking of a point about a half a mile from the bridge, the witness was asked: “Q. From this time on until the engine struck the horse, what were you doing? A. Sitting on the seat. Q. Where was that? A. Left hand side of the engine. Q. What were you doing? A. Looking out of the window. Q. Were you constantly looking along the track? A. Yes sir. Q. How far was this from the bridge? A. About a half a mile. Q. During that time, did
A motion was made at the close of the case to direct a verdict for the defendant, which was denied, and in this court the ruling is assigned as error. We think the ruling was error. There was but a single point arising on the evidence. The court charged the jury as follows: “Now, gentlemen, there is just one question to determine in this case: Did those in charge of that train use ordinary care to prevent the injury after they had discovered the horse? They had no right to anticipate, or, rather, there was no obligation upon them to anticipate, that a horse or a person or anything else -was upon the track. But, when they observed that a person or an animal is upon the track, it is their duty to exercise reasonable care to prevent injury to the horse or person, as the case may be.” The charge was entirely correct, and laid down the well established rule and the rule applied by this court in Bostwick v. Railroad Co., 2 N. D. 440, 51 N. W. Rep. 781. But we think the case, as presented by the testimony, is one in which there was a complete failure of proof upon the vital point of negligence, and consequently a case where the responsibility of making a decisive ruling belonged to the court, and should not have been devolved upon the jury. In making out a prima facie case, no testimony tending to show negligence was introduced by the plaintiff. The fact of the killing,- however, made out a case of legal or constructive negligence under the statute, which declares: “The killing or damaging of any horse, cattle or other stock by the cars or locomotive along said railroad or branches, shall be prima facie evidence of carelessness and negligence of said corporation.” Comp. Laws, § 5501. But this court held in the case of Smith v. Railroad Co., 53 N. W. Rep. 173, that negligence which is constructive and legal, as contradistinguished from actual negligence, may be overcome by proof of the exercise of due care on the part of the railway company, and that whether or not such constructive negligence has been overcome by testimony is always a question of law; for