| Kan. | Jan 15, 1875
The opinion of the court was delivered by
This was an action to recover damages for the killing of a span of horses. The errors assigned are in refusing certain instructions asked by the plaintiff in error, and in overruling a motion for a new trial. So far as the first of these errors is concerned, it would be sufficient to say, that the record fails to give the charge of the court, or the instructions (if any) given at the instance of the defendant in error, or to show that the instructions preserved were the only ones given. It may be that the instructions refused were so re
We think the rulings of the court in this matter would however have to be'upheld upon other grounds. It seems to us that the instructions refused were incorrect, or inapplicable, or in substance already sufficiently given. Thus, the sixth instruction, viz., “That it is carelessness on the part of the owner of horses and cattle to allow them to roam at large in the vicinity of an unfenced railroad,” was clearly inapplicable. The only testimony in the case showed that Brown was not in the habit of letting his horses run at large, and that on the night preceding the injury he had shut them up in his barn from whence they had gotten out into his barn-yard, and thence through .the gate into the street, and wandered away. So that whatever of blame might attach to the plaintiff. it did not lie in the direction of this instruction. The seventh instruction asked for was as follows: “It is no part of the duty of those in charge of moving railroad trains to keep watch for cattle or horses that may accidentally have strayed upon the track of the railroad.” Now whatever of truth there may be in this, as an abstract proposition, it would under the circumstances of this case have been apt to convey a wrong impression. The place of the accident was visible for half a mile in either direction along the track. There was testimony to show that the speed of the train was not slacked, that no warning was given by whistle, or bell, or letting off of steam. There was no testimony offered for the defense, and none for the plaintiff from which the jury could infer that any of the train-men knew of the presence of these horses oh the track before the moment Sf injury. Would not a jury gather the impression from such an instruction, then, that there was no breach of duty, no negligence, on the part of the train-men even if they remained thus wholly unaware of the presence of the horses on the track until the very moment of striking them, and therefore took no measures to prevent the injury? We think therefore that the
The motion for a new trial was also properly overruled. The testimony of the plaintiff tended to show negligence on the part of the defendant, and the defendant introduced no testimony. Defendant claims that the answer of the jury to a certain question showed contributory negligence on the part of the plaintiff. That answer stated that plaintiff had a horse which was in the habit of opening the gate of his barn-lot, and did on the night in question open the gate and let the team that was killed out into the road.- There was no testimony tending to show where the plaintiff resided, or how near to the railroad track. We cannot think that this is such contributory negligence as to defeat the plaintiff’s recovery. If negligence at all, it was both slight and remote.
Upon the whole record we see no error, and the judgment must be affirmed.