Bostwick v. Minneapolis & P. Ry. Co.

• Decision Date: 29 February 1892
• Citation: 2 N.D. 440,51 N.W. 781
• Court: North Dakota Supreme Court
• Parties: Bostwick v. Minneapolis & P. Ry. Co.

2 N.D. 440

51 N.W. 781

Bostwick

v.Minneapolis & P. Ry. Co.

Supreme Court of North Dakota.

Feb. 29, 1892.

Syllabus by the Court.

1. In this state the common-law rule relative to domestic animals is in force, and every man is bound, at his peril, to keep his stock upon his own premises, and is liable for all damages that his stock may do on the premises of another, whether fenced or unfenced.

2. But the fact that plaintiff's horse was a trespasser upon the railroad track of defendant, without any actual fault of plaintiff, did not relieve defendant, after the presence and peril of the horse were known to it, from the obligation to exercise ordinary care in the management of its trains to prevent an injury to the horse.

3. Where one party has been negligent, and a second party, knowing of such antecedent negligence, fails to use ordinary care to prevent an injury which the antecedent negligence rendered possible, and the injury follows by reason of such failure, the negligence of the second party is the sole proximate cause of such injury.

Appeal from district court, Richland county; W. S. Lauder, Judge.

Action by James H. Bostwick against the Minneapolis & Pacific Railway Company to recover damages for an injury to a horse. Verdict and judgment for plaintiff. From an order refusing a new trial defendant appeals. Affirmed.Newman & Resser, for appellant. McCumber & Bogart, for respondent.

Bartholomew, J.

We quote from the statement of facts in appellant's brief: “The action was brought in justice court to recover damages alleged to have been done to plaintiff's horse by a passenger train of the defendant. Plaintiff recovered, and on appeal the cause was tried de novo in the district court, and a verdict rendered for plaintiff. A motion for new trial was made and overruled, and defendant appealed from the order refusing a new trial. The material allegations of plaintiff's complaint are the fourth and fifth paragraphs, and are as follows: ‘That on said last-mentioned day plaintiff's said horse casually, and without the fault of the said plaintiff, at the station of Fairmount, in said county and territory, strayed in and upon the right of way of said railroad company; that said company, by its agents, servants, and employes, so negligently and carelessly handled and run its said cars that the same was, at said time and place, run into and over the said horse.’ The facts, as shown by the testimony, are as follows: That at the time in question the defendant was running its regular passenger train on schedule time from Fairmount west. The train was in charge of an experienced engineer, who had been running on the road nearly three years. The engine was equipped with all the modern appliances for safety that were at that time in use upon passenger engines, and they were all in good order. The train consisted of the engine and two cars, and was not at any time run at more than the ordinary speed of twenty miles an hour. At and before the time of the accident the engineer was at his position on the right-hand side of the engine, and the fireman on the left-hand side, keeping a lookout. It was necessary for the engineer to remain on the right-hand side of the engine, and the duty of the fireman to keep a lookout on the left. The country is level prairie, and there was no obstruction to the view from the train along the highway. Plaintiff's house and barn were upon the south side of the track, (left-hand side of the train,) about half a mile east of the place of the accident, and about ten rods from defendant's track, and the same distance west from the track of C., M. & St. P. R. R., which crosses defendant's track at right angles. About half a mile west of this crossing and of plaintiff's barn is the sleigh crossing at which the accident occurred. Plaintiffs' horse was in this barn. Plaintiff's servant went to the barn to water the horse, and opened the door and went in. The horse slipped his halter, and ran out, and finally ran onto the public highway, which runs for half a mile parallel to defendant's track, about four rods distant therefrom, and then turns at right angles and crosses the track. The horse ran along this highway west towards the crossing, and plaintiff's servant followed him up as fast as he could. The snow was deep, and there was no other track through it than that of the public highway mentioned. When defendant's train started up, after stopping at the C., M. & St. P. R. R. crossing, the horse was on the highway about one-fourth the way from the Milwaukee crossing, going west ‘at a pretty good jog.’ Defendant's train increased its speed until, at the whistling-post, it was running about twenty miles per hour. At this whistling-post, eighty rods east of the sleigh crossing where the accident occurred the engine gave the whistling signal required by the rules of the company. The horse was then fifteen or twenty rods ahead of the train. About fifty or sixty rods east of the sleigh crossing the engineer first saw the horse.” We quote now from the engineer's testimony on his direct examination, when first put upon the stand: “When I saw the horse I put the air on to stop the engine. I set the air-brakes. The engine slowed down materially at that time; came almost to a stand-still. I directed the fireman to keep a lookout for the horse, to notify me of its movements. When we got nearly to the track the fireman said, ‘George, he is moving towards us.’ I put the air on again.” It should perhaps be stated that respondent's evidence tended to show that no effort whatever was made to stop the train until about the moment of the accident. The snow was deep, and the traveled track had become raised somewhat by snow repeatedly blowing upon it, and for this cause the snow was unusually deep on either side of the track. This general condition was known to the engineer, and also the fact that no track led from the traveled way before it crossed the railroad track. The horse had one of its forefeet cut off. The foot was found between the rails. The horse, thus maimed, was on the south side of the track as the train passed it. From this statement of facts the jury were warranted in reaching the conclusion that defendant's servants did not use ordinary care in their efforts to stop the train after the horse was seen by them, and before reaching the highway crossing. If respondent's testimony was true, they used no efforts. If the engineer's testimony was true, it shows that he mght easily have stopped the train some distance before reaching the crossing. He says when he first saw the horse he set the air-brakes, and brought the train almost to a stand-still; that he then directed the fireman to watch the horse and report his movements; that, when they had almost reached the crossing, at a warning from the fireman he “put on the air again.” It is clear that, from the time he directed the fireman to watch the horse until he received the warning, he did nothing to stop the train, but, on the contrary, was pulling it ahead. True, he subsequently testified that he did all that could be done to stop the train, but the jury had a right to take his first statement.

At the time the horse was first seen by defendant's servants, did they understand, or ought they to have understood, that the horse was in peril? The engineer says he did not consider the horse in danger. But that was not the test. Were the circumstances, as known to him, such as would have induced the belief in the mind of a man of ordinary prudence that the horse was in danger? Shear. & R. Neg. § 99; Washington v. Railroad Co., 17 W. Va. 190. When the train was at the whistling-post, 80 rods east of the highway crossing, and running 20 miles an hour, the horse was in the parallel highway 15 or 20 rods ahead of the train. When the train had passed the whistling-post 20 or 30 rods the engineer saw the horse. Certainly the horse could not have gained any upon the train, and, at most, could not have been more than 20 rods ahead of the train at that time. He was on the traveled track, deep snow on either side, running in fright from the train. If he left the traveled track it would be to go into deep snow, where he could not run, and if he continued upon the traveled track he must inevitably cross the railroad track a very short distance ahead. If train and horse reached the crossing at the same instant, injury to the horse must result. These conditions were known to the engineer. We think the jury warranted in believing that the engineer understood, or ought to have understood, the peril of the horse when he first saw it.

There are errors assigned upon the admission and rejection of certain testimony. None of these assignments raise any question of general interest. We have examined them, but find no prejudicial error.

It is also claimed that the evidence does not support the verdict in certain particulars. We have read the testimony with care, and think that, under the instructions, it has ample support. We will notice one point. It is claimed to be undisputed that the horse ran against the side of the engine, and that the engine did not run against the horse. Perhaps the point is not very material. The engineer swears to it positively. No witness supports him. Two of plaintiff's witnesses, while admitting that from their respective positions they could not be positive, yet they both thought that the horse reached the track ahead of the engine. If the engine moved suddenly and rapidly in front of the horse when he was so near the railroad track that he could neither stop nor turn, we are not able to see why appellant's liability should be different from what it would be if the horse reached the point of intersection an imperceptible instant ahead of the engine. But the engineer testified that the train stopped in the distance of about a car's length after the collision, and then pulled one or two hundred feet beyond the crossing; hence appellant...