Bostwick v. The Minneapolis & Pacific Railway Co.

• Decision Date: 29 February 1892
• Citation: 51 N.W. 781,2 N.D. 440
• Court: North Dakota Supreme Court

51 N.W. 781

2 N.D. 440

JAMES H. BOSTWICK, Plaintiff and Respondent, v. THE MINNEAPOLIS & PACIFIC RAILWAY COMPANY, Defendant and Appellant

Supreme Court of North Dakota

February 29, 1892

APPEAL from district court, Richland county; Hon. 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.

Affirmed.

Newman & Resser, for appellant. McCumber & Bogart, for respondent.

Newman & Resser, for appellant:

The horse was a trespasser at the time at which, and the place where the accident occurred. Railroad Co. v. Munger, 5 Denio 265; Robinson v. Railroad Co., 44 N.W. 779; Neiemann v. Railroad Co., 44 N.W. 1049; Railroad Co. v. Kerr, 26 N.E. 316; Railroad Co. v. Kerr, 12 S.W. 329; Palmer v. Railroad Co., 33 N.W. 707; Railroad Co. v. Godfrey, 71 Ill. 500. The plaintiff is not entitled to recover except for willful injury to the horse by defendant. Patterson's Railroad Accident Law § 199; Van Horn v. Railroad Co., 18 N.W. 679; Harlan v. Railroad Co., 64 Mo. 480; Darling v Railroad Co., 121 Mass. 118; Railroad Co. v. Waterson, 4 Ohio St. 424; Bush v. Brainard, 1 Cow. 78; Wright v. Railroad Co., 2 Amer. & Eng. R. Cases, 121; Leary v. Railroad Co., 3 Id 498; Railroad Co. v. Brunson, 19 Id 42; Railroad Co. v. Howard's Ad., 19 Id 98; Schittenhelms v. Railroad Co., 19 Id 111; Railroad Co. v. Hetherington, 83 Ill. 510; Maynard v. Railroad Co., 115 Mass. 458; Volkman v. Railroad Co., 37 N.W. 731. The rule stated is the general rule and is the rule in a large majority of the states. Patterson's Railway Accident Law, § 204; Palmer v. Railroad Co., 33 N.W. 731; Scheffler v. Railroad Co., 21 N.W. 711. The fact that plaintiff's horse escaped from his barn and was wrongfully on the highway, of itself as a question of law, establishes his negligence and would be a bar to a recovery even if defendant had been guilty of negligence. Hance v. Railroad Co., 26 N.Y. 428. The defendant was not guilty of negligence, as it was not bound to keep a lookout for animals wrongfully at large. McAllister v. Railroad Co., 19 Amer. & Eng. R. Cases, 108; Railroad Co. v. Graham, 12 Id 77; Railroad Co. v. Richards, 12 Id 70; Locke v. Railroad Co., 15 Minn. 297. It was not bound to ring its bell at the crossing, for there is no statute requiring it, and if there was defendent did not owe such duty to a trespasser. Harty v. Railroad Co. , 42 N.Y. 468; Rosenberg v. Railroad Co., 15 Amer. & Eng. R. Cases 448; Elwood v. Railroad Co., 4 Hun. 808. Defendant was not bound to stop its train. Railroad Co. v. Champ, 75 Ill. 577; Edson v. Railroad Co., 40 Iowa 47; Railroad Co. v. Ganote, 13 Amer. & Eng. R. Cases, 519; Railroad Co. v. Wren, 43 Ill. 77; Railroad Co. v. Bradfield, 63 Ill. 220.

McCumber & Bogart, for respondent:

The question of what facts constitute negligence, or want of ordinary care, is one for the jury. Railroad Co. v. Doggett, 7 So. Rep. 278; Kent v. Railroad Co., 7 So. Rep. 391; Railroad Co. v. Watson, 7 So. Rep. 813; Railroad Co. v. Nash, 24 N.E. 884; Hanna v. Railroad Co. 21 N.E. 903; Railroad Co. v. Gedney, 24 P. 464; Railroad Co. v. Gunn, 8 So. Rep. 648. Even where the facts are undisputed, and different minds might draw different conclusions from the evidence, it is a question for the jury. Lasky v. Railroad Co., 22 A. 367; Williams v. Railroad Co., 14 N.W. 97; Railroad Co. v. Chambliss, 15 S.W. 469.

OPINION

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. Plaintiff's 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 standstill. 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 might 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 standstill; 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, eighty rods east of the...