Anderson v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 17 November 1909
• Citation: 18 N.D. 462,123 N.W. 281
• Court: North Dakota Supreme Court
• Parties: ANDERSON v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

18 N.D. 462

123 N.W. 281

ANDERSON

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

Sept. 30, 1909.

Rehearing Denied Nov. 17, 1909.

Syllabus by the Court.

In an action to recover damages for injuries claimed to have been inflicted to plaintiff's horse by defendant's locomotive or cars, direct evidence is not the only class of evidence which may be used to prove the liability of defendant. The circumstances surrounding the location and finding of the horse, its tracks in the snow, the nature of its injuries, may as unmistakably point to and prove that the defendant's locomotives or cars inflicted the injury as the direct testimony of witnesses might, and, if in conflict with the evidence given by witnesses, may be sufficient to sustain a verdict for plaintiff.

Plaintiff's horse had been missing two days. On the evening of the second day it was found lying in the ditch near the ends of the ties of defendant's track under circumstances which the jury may have found were unexplainable on any theory except that one of defendant's trains inflicted the injuries, which necessitated killing it, and the verdict may be sustained on either of two theories: (a) That, if the jury considered the evidence given by the trainmen as overcoming the statutory presumption of negligence on the part of defendant as to trains on the second day, no evidence was submitted to overcome such presumption relating to trains which may have passed over the defendant's road on the first day that the horse was missing. (b) That the jury may have found, from the circumstances, that the train passing on the evening of the second day, respecting which evidence was submitted, did inflict the injuries, notwithstanding the positive statements of the trainmen to the contrary, and that therefore their testimony that the horse was not seen in time to stop the train before reaching it should be disregarded, in which case the statutory presumption was not overcome.

This court cannot determine which theory the jury adopted.

Certain rulings on the evidence and instructions to the jury examined, and held nonprejudicial to defendant.

Appeal from District Court, McLean County; Winchester, Judge.

Action by Andrew Anderson against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From an order overruling a motion for judgment notwithstanding the verdict and from a judgment for plaintiff, defendant appeals. Affirmed.

J. T. McCulloch, Newton & Dullam, and Alfred H. Bright, for appellant. M. C. Spicer and T. R. Mockler, for respondent.

SPALDING, J.

Plaintiff recovered judgment in justice court, and, on appeal, in the district court for the value of a horse which he alleges in his complaint was negligently injured by the defendant on or about the 21st day of December, 1905, by being run against or over by one of defendant's locomotives and cars. The answer to the complaint is a general denial. The record shows that, at the point where the horse was found after the injury, three or four miles northwest of Washburn, defendant's railroad track runs northwest and southeast through a cut 10 or 15 feet deep and 600 or more feet long, and that there is a slight curve in this cut. Plaintiff turned three horses, including the one injured, out to graze and for exercise two days before the accident is alleged to have occurred. He found two of them, but was unable to find the third one. On the 21st day of December defendant ran a mixed train from Bismarck north to Garrison in the morning and back in the evening. Neither the plaintiff nor any of his witnesses saw the accident. It is shown that the two trains mentioned were the only ones which passed over the road on the 21st of December. The engineer and fireman testified that about the time they entered this cut going southeast on the evening of the 21st they saw an object ahead, but were unable to distinguish what it was; that it was not on the track, but at the side of the track. The engineer ran past it and then backed up to learn what it was. He and the conductor and brakeman found it to be a horse lying in the ditch on the side of the grade with one of its front feet cut off. The engineer and fireman testified that it was not on the track when they discovered it, and that they did not hit it either on the morning or evening trip. When they reached Washburn the engineer notified the station agent to send some one back to look after it. The trackman and another party were sent out and found it. It was clear of the track when they found it. Its left front and right hind feet were severed, and it had a large gash in one of its hips. It is clearly shown that the horse went upon the track at some point north of the cut, and the snow, of which there was from 6 to 10 inches, showed that it had walked upon the east side of the grade near the ends of the ties for some distance, but, when a short distance north of the place where found, had commenced to jump, and at about the point where...