14 S.D. 468 | S.D. | 1901
This was an action brought by the plaintiff to recover of the defendant the value of a horse alleged to have been injured through the negligence of the defendant. The facts may be briefly summarized as follows: On November 23, 1898, the plaintiff, who lived about 100 rods easterly from the defendant’s railroad, on the line extending from the city of Madison to Bristol, was the owner of a span of horses, which upon the morning of that day were turned out upon the prairie. On the following morning the plaintiff discovered one of them about 75 feet east of the railroad track, with one leg cut off and hanging only by the skin. Blood and hair were found along the ends of the ties for some distance, and it is contended that there was evidence from which the jury might properly find, as it did, that the injury was caused by a passenger train of the defendant running from Madison northerly to Bristol, and passing plaintiff’s place between 8 and 9 in the evening. The injury to the horse was such as to necessitate its being killed. The presumption of negligence arising from the injury to the horse was overcome by the defendant by proof that the train was in good order, and properly equipped, and that neither the engineer, fireman, nor any other person connected with the service saw the horse prior to its injury, and they had no knowledge that it had been injured until the train returned on the following morning. To rebut this evidence, the plaintiff proved that the place where the horse was found so injured was about 750 feet south of the second highway crossing
The following questions were submitted to the jury and answers returned, (i) “Was the plaintiff’s horse killed through the negligence of the defendant? Ans. Yes. (2) If your answer be ‘Yes/ in what did the negligence consist? Ans. The negligence of the defendant consisted in not using proper care and diligence in the blowing of the whistle at the second crossing north of Garden City on the night of the 23d day of November, 1898.”
It is contended on the part of the defendant that there was_ no evidence to support either of these findings. The engineer testified that there was nothing in or about the engine or pilot to indicate that it had struck any animal, and that the horse could not have been struck by the engine without his being made aware of the fact by the jar of the engine. The only evidence tending to prove that the horse was directly struck by the train was the breaking of a guard piece on the steps of the mail car, at which point were found hair and other marks of striking an animal, and the blood and hair on the ends of the ties. No one, so far as the evidence discloses, saw the accident, and it was not shown how the injury in fact occurred. It will thus be seen that, independently of the presumption of negligence, there was no proof of any negligence on the part of the defendant that directly caused the injury, or from which the jury could have reasonably inferred negligence.
The decisions of the courts under similar statutes are not in entire harmony, and no useful purpose would be served by an attempt to review them; but the general rule laid down seems to be that, unless the failure to comply with the statute in some manner contributes to the injury complained of, the railroad company is not liable. In other words, there must be some connection between the
Assuming, therefore, that the failure to ring the bell or sound the whistle was proven by the preponderance of the evidence, yet,