6 S.D. 606 | S.D. | 1895
Lead Opinion
The complaint was in the usual form, alleging gross negligence on the part of the defendant in killing plaintiff’s live stock. The answer was a general denial, except as to the due incorporation of the defendant, which was admitted. Upon the trial the plaintiffs proved the killing of certain live stock belonging to them by the defendant’s locomotive engine, and rested. Thereupon the defendant introduced a number of witnesses, who testified to facts tending to prove that the defendant had used all reasonable care to prevent the injury to plaintiffs’ stock, overcoming the presumption of negligence on the part of the defendant for the killing. The plaintiffs thereupon introduced three witnesses, whose evidence contradicted the evidence for the defendant.
The principal error assigned and discussed in appellant’s brief is that the trial court erred in denying defendant’s motion, made at the close of the evidence, that the court direct a verdict for the defendant. The motion was made upon the following grounds: “First, because the undisputed evidence, as a matter of law, disproves any negligence on the part of the defendant; and, second, because there is no evidence of negligence sufficient to support a verdict against the defendant.” It appears from the evidence that the plaintiffs’ live stock, the valup of which this action is brought to recover, was killed in the daytime, by an engine drawing a freight train consisting of
It is further contended that the court erred in admitting evidence as to the distance the animals could have been seen in the daytime on the track in the vicinity of the accident. But we are of the opinion that this evidence was properly admitted. Had the engineer stated how far the animals were ahead of the train when he first saw them, it would not have been conclusive upon the jury. They had a right to consider all the facts and circumstances tending to show that the engineer saw the animals sooner than his testimony would seem to indicate; and important, among these facts, would be the character of the track, the distance that objects could be seen thereon, the time of day, etc. While the engineer and trainmen are not required to be on the lookout for trespassing animals on the track, it is, nevertheless, the duty of the engineer, as soon as’he discovers animals on the track, to use all reasonable efforts to prevent injury -to them. Lighthouse v. Railroad Co., supra; Harrison, v. Railroad Co. (S. D.) 60 N. W. 405. Hence, evidence of the distance that objects could be seen along the track in the vicinity of the- accident might be very material in determining the question of whether or not the engineer saw the stock ip
Concurrence Opinion
I concur in the affirmance of this judgment reluctantly, for I am satisfied that the verdict of the jury was plainly against the weight of the evidence; and, upon the record before us, ought to have been the other way. The question of the whistle call for brakes and the activity of the brakemen does not rest upon the evidence of the company’s employes alone. Two other witnesses, apparently entirely disinterested, and with unquestioned facilities for observation, testified to the call for brakes and the prompt response of the brakemen. Against this was the testimony of two witnesses (one a boy 11 years old at the time) that, though looking at the train, and hearing the whistle, “no brakemen came out.” I cannot say with sufficient-confidence to vote for a reversal that the court erred in not giving the defendant a verdict, though I think the jury ought.