Atchison, T. & S.F.R. Co. v. Betts

• Citation: 15 P. 821,10 Colo. 431
• Parties: ATCHISON, T. & S. F. R. CO. v. BETTS.
• Decision Date: 18 November 1887
• Court: Colorado Supreme Court

15 P. 821

10 Colo. 431

ATCHISON, T. & S. F. R. CO. v. BETTS.

Supreme Court of Colorado

November 18, 1887

Commissioners' decision. Appeal from Las Animas county court.

This was an action brought by appellee, F. G. Betts, against the appellant, the Atchison, Topeka & Santa Fe Railroad Company before a justice of the peace of Las Animas county, for the value of a mule which had been killed upon the railroad of appellant. From the judgment of the justice an appeal was taken to the county court, and trial was there had de novo and to a jury.

All the evidence given at the trial was the testimony of appellee which was as follows: 'I am plaintiff in this cause. In the month of December, A. D. 1882, I owned a mule which was killed by defendant. I lived at said time in the city of Albuquerque, territory of New Mexico. I was using at said time the mule which was killed, with other teams. There was no hay in town. I turned the mule which was killed loose with the other animals which I was using in the town of Albuquerque, and about one-half mile from the depot of defendant, in said town. It was in the evening when the mule was turned loose, and I found it the next day about 11 o'clock, lying upon the track of defendant, dead. It was lying in the depot yards near the depot of defendant, with its head lying across the rail of one track. I examined the mule, and found that one side of its head was mashed, and its skull broken. I skinned that part of the head which was injured, and found the skull was mashed and broken. The mule was worth two hundred dollars. The tracks made by the mule indicated that it was struck 18 or 20 feet away from where it lay, on another track, by the cars of defendant. Had notice describing the mule, cause of its death, and value made out sworn by me, and served on the station or depot agent. Had an appraisement made by two persons, who valued the mule at two hundred dollars. The notice and appraisement were sent to Topeka to the claim agent of defendant, and I was not able to get the papers returned to me.'

The witness was here asked the following questions by plaintiff's attorney: 'How did defendant operate the road at that place with regard to running its trains and switch-engines?' Question objected to by defendant as immaterial, and not showing any connection with the injury to the animal. Objection overruled, and exception by defendant. ' Answer. The defendant was in the habit of running its switch-engines rapidly in and about the depot yards.' The witness was asked the following question 'What was the custom of the people in and around Albuquerque as to allowing their stock to run at large?' Objected to by defendant as immaterial to the issues of the case. Objections overruled, and the defendant, by its counsel, then and there excepted. ' A. It was the custom of Mexicans and Americans to allow their stock to run at large there, and a large number of stock was running loose in the vicinity. Q. State whether the fact that large numbers of stock were running at large was known to the agents and employes of defendant at said time?' Objected to by defendant as immaterial to the issues. Objection overruled, and defendant, by its counsel, then and there excepted. ' A. The agents and employes of defendant knew that such was true. Q. State whether the defendant by any of its agents admitted the killing of the mule.' Objected to by defendant for the reason that such admissions would not bind defendant, and that no agency was shown. Objection overruled, and defendant, by its counsel, then and there excepted. ' A. The agent at that point said if defendant killed the mule it would pay for it.' The witness further testified that defendant did not have its yards or tracks in Albuquerque fenced; that defendant used, for a switch-engine, an ordinary engine, and not a double-header. There was a good deal of business done at that point by defendant, and defendant run its switch-engines very rapidly, night and day, both forward and backward. Albuquerque is situated in a stock country, where stock-raising is the principal business.

On cross-examination, witness testified that he lived in the city of Albuquerque, New Mexico, at the time the mule was killed, and about one-half mile from the depot and yards of defendant, and that he turned the mule loose at his place of residence in the evening, and found it dead upon the track of defendant, and in the yards of defendant in said town of Albuquerque. Did not know how the mule was killed, but from the circumstances as stated on direct examination. This was all the evidence offered by either of said parties to said cause.

The second instruction asked by the plaintiff below, and given by the court to the jury, was as follows: 'If the defendant railroad company, by gross negligence, killed plaintiff's mule, then the defendant is liable for the damages, and is so liable under common-law principles, without regard to the statutes of New Mexico.'

The third and sixth instructions asked by defendant, and refused by the court, were as follows: '(3) If the jury believe from the evidence, that the plaintiff turned his mule loose in the city of Albuquerque, New Mexico, and allowed it to stray upon the track of the defendant, where it was killed by defendant, then the plaintiff was guilty of negligence, and cannot recover the value of the mule.' '(6) If the jury believe, from the evidence, that the plaintiff allowed the mule, for the value of which this suit is brought, to stray upon the track of defendant, and was there killed by the cars or engines of defendant, then the plaintiff was guilty of negligence, and cannot recover in this action.'

The jury returned a verdict for the appellee, plaintiff below, in the sum of $200, and the appellant, defendant below, moved for a vacation thereof, and for a new trial, for the following reasons: (1) That the verdict in said cause is contrary to the evidence; (2) that said verdict is contrary to the law in said cause; (3) that the court erred in admitting the testimony of plaintiff concerning the manner of running the engines in yards of defendant, over objections of defendant; (4) that the court erred in admitting the testimony of plaintiff with regard to the general custom of allowing stock to run at large in Albuquerque, and that defendant, by its agents, had knowledge of this fact; (5) the court erred in refusing the third and sixth instructions asked by defendant; (6) the court erred in giving the second instruction asked by plaintiff.

The court overruled the motion for a new trial, and gave judgment for appellee, plaintiff below, upon the verdict. The appellant duly excepted, and brings the case here by appeal and assigns errors as follows: ' First. The court erred in admitting improper testimony for and on behalf of the plaintiff in this: that it erred in permitting the plaintiff to testify as to the manner of operating defendant's road with regard to running its trains and switch-engines in the depot yard at Albuquerque; also in permitting the plaintiff to testify as to the custom of the people in and around Albuquerque in allowing their stock to run at large, and that this custom was known to the agents of the company; all of which testimony, as shown in folios 17 to 20, was admitted over the objection of the defendant. Second. The court erred in instructing the jury, at the instance of the plaintiff, that the defendant company was liable in the premises if the animal in controversy was killed by gross negligence; there being no evidence whatever in the cause to establish gross negligence, or any negligence whatever, on the part of defendant...