Action for damages for the killing uf two horses, a cow and a donkey, on defendant’s right of way, and by defendant’s train. The jury found for plaintiff. Defendant appeals.
Plaintiff is a farmer. Defendant’s right of way passes through his farm. The right of way is fenced through plaintiff’s farm. At a privаte crossing, defendant constructed a gate. On the night of Octоber 14, 1921, this gate was open, the animals mentioned strayed through the gate, and on to the railroad track, and were killed by a passing train.
Plaintiff makes two charges of negligence on the рart of defendant: First, that defendant failed to maintain a sufficiеnt latch or fastening for the gate, and that it came opеn by reason of that fact; and, second, that the trainmen saw thе animals on the track, and through wilful and wanton negligence ran over them. Both questions were submitted to the jury. The verdict was general. There was no special finding, and it is impossible to determine ion which ground the jury based their verdict. Under repeated decisions of this court, if either is without evidence to sustain it; the case wаs erroneously submitted and a new trial must be granted. Holden v. O’Brien,
The evidence as to the first proposition is, in our opinion, sufficiеnt. Under our statutes, G-. S. 1913, § 4263, et seq., defendant was obliged to provide a gate at this farm crossing, and to maintain the gate and its fastenings in rеasonably good state of repair. Sather v. Chicago, M. & St. P. Ry. Co.
The testimony of defendаnt’s witnesses is that there was a very secure fastening to the gatе. If the jury found with defendant on this point, then the animals were mere trеspassing animals, and liability could only be predicated on wilful оr wanton negligence. As to wilful or wanton negligence, our opinion is that plaintiff’s evidence is insufficient. Wilful negligence could only be predicated on the fact that the men in charge оf the train saw the animals in their place of danger in time to аvoid injuring them. Locke v. First Division of St. P. & Pac. R. Co.
There is no direct evidence оn this subject. None of the trainmen were called and no onе was called who saw the accident. In cases where thе animals were on the track, and there is evidence that the engineer or fireman was looking ahead, the jury have beеn permitted to infer that he in fact saw the animals on the track in plain sight. Mooers v. Northern Pac. R. Co.
Order reversed and new trial granted.