Bishop v. Chicago, M. & St. Paul Ry. Co.

• Decision Date: 07 February 1895
• Docket Number: 6731
• Court: North Dakota Supreme Court

62 N.W. 605

4 N.D. 536

CHARLES BISHOP v. CHICAGO, MILWAUKEE AND ST. PAUL RY. CO

No. 6731

Supreme Court of North Dakota

February 7, 1895

Appeal from District Court, Dickey County; Lauder, J.

Action by Charles Bishop against the Chicago, Milwaukee & St. Paul Railway Company. Plaintiff had judgment and defendant appeals.

Affirmed.

John H Perry, for appellant.

James M. Austin, for respondent.

OPINION

WALLIN, C. J.

This action was brought to recover damages. The averments of the complaint are, in substance, that the defendant negligently killed the plaintiff's colt, of the value of $ 100, by running one of its trains over said colt. Defendant answered the complaint, denying the negligence charged in the complaint, and admitting the killing, and the value of the colt, as stated in the complaint. Certain concomitant facts are uncontroverted, and may be stated as follows: It is conceded that defendant's railroad passes over and divides the plaintiff's farm. That plaintiff's house and stable are located about eight rods from the crossing hereafter mentioned, and upon the east side of the track. Upon the west side of the track a part of the plaintiff's land is cultivated, and upon the day of the killing certain of the plaintiff's straw stacks were standing about 40 rods from the track and crossing. Long prior to the killing and at plaintiff's request therefor, the defendant had constructed a private crossing over its railroad for plaintiff's use, and to enable the plaintiff to pass and repass and to drive his stock from one part of his land to another; and others besides the plaintiff were in the habit of driving over such crossing. The colt in question was killed upon the crossing, and when killed was in the act of running from the west to the east side of the track. The colt was killed some time near the middle of the day. In the morning of that day the plaintiff's horses, several in number, including the colt, were let out of the plaintiff's stable, and turned loose by the plaintiff. The horses were turned loose to enable them to cross over the railroad and feed near the stacks on the west side of the track, upon wheat which had been left uncut. As has been seen, the answer admitted the killing, and the alleged value of the colt. Such admissions under § 5501, Comp. Laws, operated to make out a case of constructive negligence against the railroad company. Hodgins v. Railroad Co., 3 N.D. 382, 56 N.W. 139. To rebut the prima facie case so made out the defendant put the engineer and fireman who were managing the engine which did the killing upon the stand as witnesses. Their testimony was substantially the same upon vital points and was to the effect that the danger of the colt was first discovered by the engineer at a time when the train was approximately distant from the crossing between 300 and 400 feet, and was moving at the rate of 20 or 25 miles an hour towards the crossing. The distance of the colt from the crossing when its peril was first discovered by the engineer was, according to the testimony of the engineer and fireman, between two and three hundred feet. The train consisted of the engine and three cars, one of which was a passenger car. The train was behind time, and running faster than usual. The engineer testified: "Immediately on discovering the peril of the animal, I reversed the engine, and blew the alarm signal, and done all that might be done to stop the engine on my part, before I struck the animal. I did this immediately on discovering the danger of the animal. * * * As soon as I saw the animal, I reversed the engine; that is, to give it the full pressure on the front end,--that is to stop the engine just as quick as you can. I sounded the alarm, and tried to stop just as quick as you can. The train was running on a forward motion at the time: I reversed the engine, and pulled the throttle wide open. I pulled the throttle clear out, so as to give the full pressure of the boiler on the back motion. That has the effect of stopping the train. * * * I have been in the railroad business quite a number of years. The train could not be stopped between the time I first discovered the animal and the time of striking it. * * * The animal was running quite fast." The fireman testified: "I rang the bell after the engineer gave the alarm to set brakes. He gave several blasts of the whistle. I rang the bell after he gave the alarm. I rang the bell until after we crossed the crossing; until after we struck the horse. The animal when I first discovered it, was from 100 to 300 feet from the track. The animal was opposite the crossing. It was running like, on the gallop, towards the track at the crossing. At the time, we were from 200 to 300 feet from the crossing." The testimony of the engineer and firemen apparently made out a case tending strongly to show due care in operating the train at and just before the colt was struck by the train, but the plaintiff put upon the stand a number of witnesses whose testimony bears directly upon the question of due care. It will serve no good purpose to reproduce the plaintiff's testimony here. It must suffice to say that there was a conflict of evidence as to the time when the engineer discovered the peril of the colt, as evidenced by the ringing of the bell; also a conflict as to when the alarm whistle first sounded to scare the colt away from the track; also as to whether or not the engime was reversed at all, as testified to by the engineer. There being a conflict in the evidence upon these features of the principal question at issue,--the question of negligence,--we are clear that the trial court did not err in denying the motion to direct a verdict for the defendant. Negligence, except in the case of constructive negligence arising upon the statute above cited, is generally, and almost always, a question of pure fact. ...