261 F. 313 | 8th Cir. | 1919
The plaintiff in error, hereafter plaintiff, commenced this action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. At the close of plaintiff’s evidence the trial court directed a verdict against him. This ruling is assigned as error.
Plaintiff in his complaint in substance charged: That on February 5, 1917, while he was driving a team of horses attached to a wagon in the direction of a public highway crossing over the railroad track of defendant in the county of Sandoval, New Mexico, the horses became uncontrollable through fright and ran to said crossing, stopping upon the railroad track. That plaintiff used his best effort to get said team to move off said track, and was unable so to do before a passenger train of defendant struck the wagon in which plaintiff was seated, thereby throwing him from the wagon and causing his injuries. That while plaintiff was stopped upon the railroad track by reason of the action of his horses, the servants of defendant in control of said passenger train discovered the peril in which the plaintiff was placed, but negligently failed to exercise ordinary care to check and stop said train and thus avoid injuring the plaintiff.
The facts as shown by the record are as follows: On the date mentioned in the complaint the plaintiff, about 6:45 or 6:50 o’clock p. m., started from his house, which was about 1,400 feet in a southeasterly direction from what is known as the Angustura public highway crossing over defendant’s track, to drive a team of horses attached to a wagon over said crossing to his father’s house, which was located south and west of the crossing. The horses were partly broken, hard on the mouth, and subject to becoming frightened at railroad trains. When plaintiff had proceeded about halfway to the crossing, or 700 feet, the horses became frightened at a passenger train of defendant coming from the north, and started to run along the road toward the crossing. Plaintiff put on the wagon brakes and attempted to hold the team, but was unable to stop them until they reached the crossing, when the team suddenly balked of their own accord; the front wheels of the wagon being in the center of the track. As the plaintiff reached the crossing the passenger train was distant from the crossing about one-half mile. The headlight of the engine was lighted and the whistle was blown from the distance of one-half mile until the train passed the crossing. For this distance of one-half mile the track was perfectly straight, with no obstructions, and a person on the crossing could be plainly seen for the full distance. On the evening in question the weáther was clear
We are clearly of the opinion that the case presented is not an impossible or an improbable one, to the extent of permitting the court to direct a verdict on that ground. It has never yet, so far as we have been able to learn, been permitted to man to know just what a frightened horse will do, or to judge its acts by the standard of reason. The facts in evidence, unexplained or uncontradicted, would warrant a jury in finding that the engineer or other employe in charge of the engine of the passenger train knew, or might have known in the exercise of ordinary care, of the peril of the plaintiff within a distance from the crossing winch would have allowed the stopping or slackening of the speed of the train before coming mto collision with the plaintiff. This being so, we think the court erred in directing a verdict on the ground that there was no negligence shown on the part of defendant, in that there was no evidence that the employes in charge of the passenger train knew of the peril of the plaintiff.
We do not discuss the rule of the last clear chance, as that would .involve an assumption that the employes of defendant knew, or in the exercise of ordinary care might have known, of plaintiff’s peril,, and also an assumption'that plaintiff was guilty of contributory negligence, both of which questions we hold ought to have been submitted to the jury.
For error in directing a verdict for defendant, the judgment below is reversed, and a new trial ordered.