123 P. 933 | Utah | 1912
Lead Opinion
Respondent recovered judgment against appellant for damages which he alleged he sustained by the death of two horses which he claimed were killed by appellant through the negligent operation of its locomotive and train of cars. In the complaint, the acts constituting negligence are alleged as follows: That on the 3d day of January, 1910, two certain horses belonging to the plaintiff (respondent) “strayed' in and upon the track and ground occupied by the railroad of the said defendant at or near Arimo, in the county of Bannock, state of Idaho; that said defendant, by its agents and servants, not regarding its duty in that regard, so carelessly and negligently ran and managed its locomotive and cars that the same ran against and over the said horses of the said plaintiff and killed and destroyed the same.”
From the bill of exceptions it appears that the substance of the evidence adduced at the trial on behalf of respondent tended to show that Arimo is a flag station on appellant’s line of railroad in Bannock County, Idaho; at which there are no station buildings, but, at the time of the accident, there was a store known as Henderson’s store and a toolhouse, both of which were upon the station grounds. The railroad track runs nearly due north and south through the station grounds, but curves a little to the west about 1200 feet south from the east end of said grounds; that on the night of January 2, 1910, and for some time prior thereto; respondent kept the
After a motion for nonsuit had been interposed by appellant and denied by the court, the appellant, in substance, produced the following evidence: The engineer testified that he was in charge of a freight train, which was an extra, and which, in approaching the station grounds at Arimo, was running at about twenty miles an hour; that the train was not scheduled to stop nor did he intend to stop' at that station; that he approached the station shortly after eleven 'o’clock on the night of the 2d of January, 1910, and when he had arrived at or near the toolhouse spoken of his train struck some horses; that the night was “foggy and dark and I could not see anything of them' (the horses) until I was about seventy feet, or two carlengths, from the horses.” lie further said that, when he first saw the horses, they were to the
The brakeman on the train was also called as a witness on behalf of appellant. He testified that in approaching Arimo
At the conclusion of the evidence, the appellant requested the court to direct the jury to return a verdict in its favor upon the ground that the evidence failed to establish negligence in operating the train as alleged in the complaint. The court refused to so charge, but, upon respondent’s request, charged the jury, among other things:
“That it was the duty of the defendant company,' upon approaching the crossing in question, to heep a reasonable lookout to discover any stock or animals that might he thereon or in close proximity thereto, and to avoid any injury or the striking of any animals that might, hy the exercise of reasonable care, have been discovered thereon or in such proximity thereto as that it might reasonably have been cmtici-pated might come thereon. That is, you are instructed in this case that it was the duty of the engineer, or employees of the defendant company to keep a proper lookout for the horses of the plaintiff, whether they were upon the track or*106 in such close proximity thereto that they might likely run upon or across the track, andin case of the discovery of the horses thereon or in such proximity to the track, it was the duty of such engineer to use the usual and proper means to frighten them away, and, failing in this, to check the speed of his train and bring it under control in order to avoid injury to them. If he failed to* do these things, and the injuries complained of resulted by reason thereof, the defendant company would be guilty of negligence; Or, even though you may believe from the evidence that the engineer or employees of the defendant company did not discover the horses of the plaintiff upon or in close proximity to these tracks, hut that by reasonable and proper lookout they could have done so and thereby have avoided the injury, then the defendant company is liable the same as if they had in fact discovered them in time to have frightened them awcvy.”
Appellant excepted to those portions of the instruction that are italicized and now insists that the court erred in not directing a verdict in its favor, and also erred in charging the jury as indicated above. Appellant’s counsel strenuously insist that the horses in question were trespassing upon its station grounds and tracks, and that therefore the law did not impose the duty upon it to maintain a lookout for the purpose df discovering them, but the only duty the law imposed upon it was the exercise of reasonable care not to injure them after they were discovered' at or near the track or in a place of danger. Assuming, without deciding, for the purposes of this decision, that, as an abstract proposition, the law is correctly stated in the foregoing instruction, and that appellant was required to maintain a reasonable vigilance or lookout for animals that may have come on or near its track or grounds, yet the question that first must be met under the facts and circumstances of this case is, Did the undisputed evidence, when considered most favorably in favor of respondent, justify the submission of the case to the jury ?
The undisputed evidence shows that the horses were kept in a field which was adjoining appellant’s station grounds; that there was a private way across the track which led into
“Inferential evidence of negligence is overcome by defendant’s undisputed testimony showing that there was no negligence; and, where plaintiff’s case rests entirely on such inferential evidence, the case must be taken from the jury.”
In Goss v. N. P. Ry. Co., 48 Or. 439, 81 Pac. 149, the rule is stated in the following language:
“Where the evidence of negligence is entirely inferential, and the testimony for the defendant is clear and undisputed to the effect that there was no negligence, the plaintiff’s case is overcome as a matter of law, and it becomes the duty of the judge to take the case from the jury.” ' .
If we therefore assume all of respondent’s evidence to be true with respect to the condition of the headlight, and that by its rays the engineer could have seen the horses for a distance of 1100 or 1200 feet, that the night was clear and the stars were shining, but was cold and frosty, we still must infer that the horses were in a place where they could have been seen by the engineer for a sufficient length of time for him to have avoided the collision. If they were not in such a position, the engineer cannot be charged with negligence for not having seen them. The inference that the horses were in a position where they could have been seen by the engineer is squarely met by the positive testimony of both the engineer and the brakeman that the engineer looked and did not see the horses.' The brakeman testified that the glass in the front window of the cab in front of the engineer could not be seen through on account of its frosty condition; that the engineer opened the sliding window on the right side of the cab and kept a lookout through it. The engineer, on cross-examination, also said that he maintained a lookout on the night of the accident on approaching the place where the horses were struck, and that he did not see them until he was within seventy feet of them. The fact that he also' said he could not have seen them for other reasons is of course not controlling, since we must judge him by respondent’s evidence, but, even though he be judged- by that evidence, still his and the brakeman’s positive testimony that he maintained a lookout but did not see the horses stands uncontradicted either by direct evidence or facts. If there had been no cars and no buildings of any kind which might have screened the horses from the view of the engineer, there would at least be something upon which to base an inference that the engineer did not look, since, if he had, and there being no obstacles in the way to have prevented him from seeing the horses, he should
In addition to the cases already referred to, we also refer to the following which will be found to be directly in point: Georgia, etc., Ry. v. Sanders, 111 Ga. 128, 36 S. E. 458; Georgia, etc., Ry. v. Thompson, 111 Ga. 731, 36 S. E. 945; Central El. Ry. Co. v. Wood, 105 Ga. 499, 30 S. E. 933; Alabama, etc., Ry. v. Stacey (Miss.), 35 South. 137; Felton v. Anderson (Ky.), 66 S. W. 182; Chicago, etc., Ry. v. Huggins, 4 Ind. T. 194, 69 S. W. 845.
We are clearly of the opinion, therefore, that, under the uncontradieted evidence, the appellant was entitled to a directed verdict in its favor, and that the refusal of the court to direct such a. verdict upon appellant’s request requires a reversal of the judgment.
The judgment- is therefore reversed, and the cause remanded to the district court, with directions to grant a new trial and to proceed with the case in accordance with the ' views herein expressed. Appellant to recover costs.
Concurrence Opinion
concurs.
I concur. I, too, think the evidence is insufficient to support the verdict, not on the theory that the plaintiff had proved facts from which just and reasonable inferences may be deduced showing negligence and that such inferences were overcome or destroyed by positive and direct evidence of no negligence, but that the plaintiff failed to show negligence either by direct or indirect evidence. I do not concur in the principle so broadly stated that just and reasonable inferences showing negligence deduced from proven, facts are, in all cases, overcome or destroyed by positive and direct evi-