Johnson v. Rio Grande Western Railway Co.

| Utah | Jun 15, 1891

MINER, J.:

. This action was brought to recover damages on account of the killing of a mare belonging to the plaintiff, July 6, 1889, by a train of cars on the railroad of the defendant, the' mare being at the time on the railroad track of the defendant, which adjoined the pasture of the plaintiff, there being no fence between the pasture and the defendants right of way. At the time of the killing of the mare, she, with other horses, had crossed from the pasture to the opposite side of the track, and was there feeding between the track and a wire fence, a little to the west, and a cattle-guard being a short distance to the south of them, when the south-bound train of defendant came along. The track was straight for a mile each way from the place, and the train, being late, was being run at from thirty to thirty-five miles an hour, — a higher rate of speed than usual. Mo attempt was made to stop the train - or to slacken speed. As the train neared the place where the horses stood near the track, the horses started across the track when the train was 100 yards away, and the mare in question, being the hindmost one, was caught by the train and killed; the case of the plaintiff being that she was killed by the negligence of the defendant’s servants engaged in running the train. It is alleged as error that the evidence fails to show that the defendant was guilty of negligence. The evidence on this subject was conflicting. It was shown on the part of plaintiff that the mare was knocked thirty-two steps when hit by the cars, and that no.whistle was blown, nor bell rung, and that the horses were close to the track, and that the engineer could have seen them for a mile or- two miles before reaching them, and that the unusual speed of the train was not slackened until after the mare was struck, and that the horses were surrounded by a fence on the west, a cattle-guard on the south, and the track on the east. The engineer himself testified that he did not slacken speed nor blow his whistle until he got within 250 feet of them, although he saw them 1,500 or 2,000 feet, — something more than a quarter of a mile, — before reaching them. We think there was sufficient evidence to go to the jury on the question of defendant’s negligence.

There was some proof in the case on both sides concerning the plaintiff’s negligence, but the jury have by their verdict found this issue against the defendant, and we cannot say that their finding of facts in this respect was not sustained by the evidence, and the motion for a non-suit was properly denied.

We think the evidence of the plaintiff and of the witness Oling'er that the mare was worth $150 sufficient to warrant the verdict of the jury in that respect. -The-value was not disputed, and Olinger was shown to be the owner of horses. Even if plaintiff’s evidence on that subject was stricken out, there remained enough to enable the jury to ascertain the value. That the plaintiff gave a fallacious reason for his opinion aB to the value does not render his judgment as to value wholly worthless. It may still stand for what it is worth; and, no evidence of value being produced by the defendant, there was no injury done to defendant by allowing his answer that he got at the value because he had' been offered that for the mare, and refused it, to stand. It is not necessary to be an expert horse dealer to have some judgment as to the value of a horse.

The questions put to the witnesses Ryan and Stapleton as to whether the engineer could have done anything else to avoid the disaster were correctly excluded. That question was for the jury to determine on consideration of all the facts. Besides, the record shows that the witness was allowed to state that he did all he could to slow the train after he saw the horses crossing the track. We think the case was fairly submitted to the jury on the questions of law involved. Some omissions from and expressions in the charge excepted to, if taken separately from the balance of the charge, might perhaps be open to some criticism, but we are satisfied that the entire charge, taken together, fairly submitted the case to the jury, and that such of the defendant’s requests as it was entitled to were fairly covered by the instructions given. We ’ find no error in the record sufficiently prejudicial to the defendant to justify the granting of a new trial, and the judgment is affirmed, with costs.

Zane, O. J., concurred.