Borneman v. Chicago
| Decision Date | 06 July 1905 |
| Citation | 104 N.W. 208,19 S.D. 459 |
| Parties | E. A. BORNEMAN, Plaintiff and respondent, v. THE CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY, Defendant and appellant. |
| Court | South Dakota Supreme Court |
THE CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. Joseph W. Jones, Judge Affirmed Hosmer H. Keith Attorneys for appellant. Opinion filed July 6, 1905
This is an action to recover damages for the loss of a horse belonging to the plaintiff through the alleged negligent operation of one of defendant’s trains. The issues involved are thus stated by the learned circuit court in its charge, to which no exceptions were taken:
“The evidence in this case shows that the horse was not struck at a crossing, but was struck upon the right of way, upon the track where there was no crossing, on private grounds, and on the railroad right of way. The horse was therefore a trespasser, and it was not the duty of the locomotive engineer, or of the brakeman, or any of its servants, to keep a lookout for the horse; and they are not guilty on account of any failure to see the horse; but if the engineer did see the horse, and saw that it was in close proximity to the track, and liable to be hurt, then it was the duty of the engineer to use reasonable care and precaution to avoid, if possible, the injury. He was not bound to keep any lookout in order to see if any stock was there, but he was bound to stop the train and prevent injury if he did see the stock in time to enable him by exercising reasonable care to do so. In addition to other evidence in this case, there has been introduced an ordinance of the city limiting the speed of railroad trains within the city limits to six mile, an hour. This is simply introduced along with the other evidence that you may weigh and consider it. The railroad company was not per se necessarily negligent because it may have run the train at a greater rate of speed than six miles an hour; but the question of whether that rate of speed was dangerous to stock that might be along the right of way—whether they were negligent in regard to the speed of the train—is a question of fact for you to determine, taking into consideration all the facts and circumstances, including the evidence of the ordinance introduced on that subject. But the fact that the city has an ordinance limiting the speed of trains to six miles an hour does not of itself wake it negligent to run a train at a higher rate of speed. A matter for you to determine will be whether or not the engineer saw this horse in time to, by reasonable care, and the use of reasonable diligence, have prevented the accident. You have heard all the testimony in this case upon that as upon all other subjects. You are the judges of the credibility of witnesses and the weight of their testimony, and it is for you to determine, under all the facts and circumstances, whether or not he did see the animal in time to have saved it by the exercise of reasonable care and diligence in that regard. If he could have, by the use of ordinary care—reasonable care—stopped the train, or otherwise prevented the injury, and he neglected and failed to exercise that care, then the railroad company is liable. But if he could not, after he saw the horse, have prevented the accident by the use of ordinary care, then the railroad company is not liable in this case, unless you believe it was negligent in other respects; that is, by running the train too fast, or by the failure to give the usual signals or ringing the bell or blowing the whistle. Upon this subject of the bell and whistle, I will read you the language of the Code, section 3016 of the Compiled Laws of 1887:
‘A bell at least thirty pounds weight, or a steam whistle shall be placed on each locomotive engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said railroad shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of fifty dollars for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer and the other half to go to this territory, and also be liable for all damages which shall be sustained by any person by reason of such neglect.’
This to be taken into consideration in this case purely upon the subject whether or not any failure to ring the bell, if any did exist, caused the injury to the animal to occur. If it was not the cause of the injury to the animal, and it did not grow out of that, then what I. have read and said regard to the whistling would have no effect. The thing for you to determine is this: Were the servants of the railroad company, in operating the train, negligent or not? Did they exercise reasonable care? If they were negligent, did that negligence cause this injury?”
Defendant’s engineer testified as follows:
“We left Sioux Falls to go to Salem about two o’clock. That was the regular time of leaving. I think the train started on time. I remember the occasion of this accident, and where it occurred. It was about 60 feet to the west of the Twelfth Street Viaduct in this city. I was going west that day on this trip. As we passed under the Twelfth Street Viaduct I saw the horse break out of the ditch and weeds directly towards the west side of the track, not to exceed 50 feet from the engine, ahead of the engine, and make an effort to jump across the track. I shut off steam immediately, but before I had time to do anything further—I was so close to the horse at the time—we had collided with him, and the horse was thrown up on the pilot of the engine, and carried along a short distance, and rolled off right side of the track in the ditch on my side. …
Q. You may state whether it was possible, from the time you saw that horse until he was struck, to have stopped that engine and that train of cars.
A. No, sir. It was impossible.
Q. You may state whether or not you did all in your power to stop it.
A. I did in the length of time I had. …
Q. Where was the horse when you first saw it?
A. On the south side of the track, on the left-hand side. I was on the north side.
Q. You may state to the jury whether you were on the look-out.
A. I was, most...
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