McKissick v. Oregon Short Line Railway Co.

89 P. 629 | Idaho | 1907

AILSHIE, C. J.

This action was commenced to recover damages for killing three head of cattle and maiming one cow. The animals were injured and killed near the station at Tikura, on the Hailey branch of the Oregon Short Line Railway, on the thirteenth day of July, 1905, and damages were claimed in the sum of $140. The injury and loss was caused by one of the defendant’s freight trains striking the animals while crossing the track. Verdict was returned in favor of the plaintiff for the sum of $110, and judgment was entered accordingly; defendant moved for a new trial and the motion was denied, and this appeal is from the judgment and order.

The assignments of error may be properly considered under four groups, and we will treat them in their order: 1. Insufficiency of the evidence to support the verdict and judgment; 2. Rulings of the court in the admission and rejection of evidence; 3. Remarks by the judge in the presence of the jury; 4. Refusal of the court to give certain instructions requested by defendant.

As to the sufficiency of the evidence, an examination thereof leaves no doubt. Although there is a conflict, there is abundant evidence to justify a reasonable man in concluding that the engineer was guilty of negligence in operating his . train, and by reason thereof inflicted injuries and caused the damages complained of. The railway company contends, and indeed furnished proofs to that effect, that while the engineer was running a train of thirty-four cars of sheep, he saw an animal come out of a fill and onto the track about • twenty-four rods ahead of him, and that about the same time the fireman notified him that other animals were in the fill, that the engineer immediately applied the brakes and stopped the train as soon as possible, but not until the stock had been killed and injured. It was also shown that the train was on a heavy downgrade, and it is contended by the company that such train could not have been stopped with safety within the distance to the stock from where he first saw them. Other facts were shown along that line of evidence and in corroboration of the testimony of the engineer and fireman. On the other hand, the plaintiff produced several witnesses who lived near by and in sight of the track and roadbed where this injury occurred, and they testified that they saw the train coming in on that day, and that it began whistling and tooting at stock over a quarter of a mile above where these animals were killed, and that it kept up whistling until it reached them, but that the train did not appear to slow up any until it reached the place where the animals were killed; they also testified that the animals were in plain view of the engineer all this time, and that they afterward went to the place and tested by experiment to ascertain whether he could have seen them or not, and that they found that he could have done so. Many details are narrated on both sides in corroboration of the respective views taken and positions assumed, but it is needless to recite them here. Reasonable men might differ as to whom they would believe in this case and as to whether negligence has been shown, and in all such cases the verdict must stand. (Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 36 L. ed. 485, 72 Sup. Ct. Rep. 679.)

Appellant has also urged that the evidence is not sufficient to establish the value of the animals killed and injured. Complaint is made that the witnesses who testified as to the value of the animals did not show themselves competent to testify as to that fact. It is true that they did not show themselves to be experts as to the value of cattle, but we do not think it takes much of an expert to testify to the value of a cow. Although witnesses may differ widely as to the value, it is the privilege of each side to produce the most favorable ones they can, and, after all, the jury generally know as much about those' things as the witnesses do, and notwithstanding the legal proposition that they must follow the evidence, every lawyer and judge knows that jurors who want to deal justly between litigants will call to their aid in reconciling conflicts their common knowledge of every-day facts with which they are familiar, and will apply them in a large measure in arriving at their verdict.

The most objectionable thing appearing in this connection in the case at bar is the method employed to prove the amount of damage done to the animal that was maimed but not killed. The witness was asked: “To what extent was the animal damaged?” and answered: “Fifteen dollars.” It must be conceded that this is not the proper way to prove damages, but it should be borne in mind that the witness had already stated the nature of the injury to the animal. He said: “She had a leg broken and hip knocked down. She is a red cow, four years old. ’ ’ The jury also had before them the value of such an animal. Notwithstanding the evidence was not elicited in a proper manner, it is clear that the witness considered the animal with a leg broken and a hip knocked down worth $15 less than it was when its bones were whole and in the right place, and the jury evidently agreed with him and we are in accord with both the witness and jury. The error in the method of proof of damage has not prejudiced or injured the appellant, and a new trial should not be granted on that account.

The other errors complained of in the admission and rejection of evidence are of still less consequence than the one just considered, and have in no respect injured or. prejudiced the appellant.

When one of the plaintiff’s witnesses was testifying, the court interrupted him with the following statement: “I think cattle on the track that way or near it, when a train comes along, they want to cross the track, ’ ’ and when counsel for defendant took an exception to this statement, the court replied: “I have often heard it said and observed it.” The court then further manifested some feeling over the action of counsel in taking exception to his remarks. There was neither occasion nor excuse for this interruption on the part of' the court. This court has repeatedly expressed its disapproval of such action on the part of trial judges; the jury were the judges of the facts, and it is entirely improper for a trial judge to comment on the evidence or to make statements of fact in their presence unless it be when he is called as a witness. While we strongly disapprove of the action of the court in this respect, it was not of such a prejudicial nature in this case as to demand a reversal of the judgment.

Defendant’s first requested instruction was properly denied, for the reason that it was a peremptory instruction to return a verdict for defendant. The other instructions requested by defendant and not given were properly refused. In the first place, they were argumentative, and in •some respects each was misleading, and did not clearly and properly state the law on the subject treated. In the second place, the court properly instructed the jury on his own motion as to the law of the case necessary for them to intelligently render a verdict.

No sufficient reason has been brought to our attention for a reversal of the judgment. Judgment is affirmed with costs in favor of the respondent.

Sullivan, J., concurs.