Carman v. Montana Cent. Ry. Co.
| Decision Date | 01 March 1905 |
| Citation | 79 P. 690,32 Mont. 137 |
| Parties | CARMAN v. MONTANA CENT. RY. CO. |
| Court | Montana Supreme Court |
Commissioners' Opinion. Appeal from District Court, Cascade County; J. B Leslie, Judge.
Action by S. H. Carman against the Montana Central Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.
E. L Bishop, for appellant.
Greene & Cockrill, for respondent.
Appeal from a judgment. The action was to recover for the alleged negligent killing of some of plaintiff's cattle, and the negligent injury to others. The complaint alleges two separate causes of action: First, on account of negligence in failing to erect and maintain proper fences along its right of way; and, second, on account of negligence in the operation of its trains. An answer and reply were duly filed. The case was then tried before a jury. At the close of the testimony, upon motion of defendant's counsel the court withdrew the first cause of action from the consideration of the jury. A verdict for $175 was rendered in favor of plaintiff on the second cause of action, and judgment followed. At the close of the evidence, counsel for defendant moved the court to direct a verdict for defendant on the grounds of failure of the evidence to show the negligence alleged and the damages claimed. The negligence alleged in the second cause of action was that "the said cattle could be seen by the servants of said defendant in charge of said train for a distance of more than 300 yards--a sufficient distance to have stopped said train, and prevent the same from colliding with or running against or over or upon any of the stock"--but that said defendant's servants in charge of the train neglected to stop it, and allowed it to "run into, against, over, and upon" said cattle. Killing three and injuring three of them, to plaintiff's damage in the sum of $240. The sufficiency of the complaint is not questioned.
This appeal being from the judgment alone, counsel for respondent insists that, under the practice in this state, this court cannot consider the sufficiency of the evidence; that there was testimony introduced by plaintiff tending to sustain the verdict; and that the testimony introduced by defendant tended to contradict this, and therefore there was a conflict of evidence. Counsel for appellant insist that there is no conflict in the evidence, and that the record contains no substantial evidence to support the verdict. This court has decided, in the case of Ball v. Gussenhoven, 29 Mont. 322, 74 P. 871, that "whether the verdict or decision is unsupported by any substantial evidence, being a question of law, may be reviewed by this court on appeal from the judgment." See, also, Emerson v. Eldorado Ditch Co., 18 Mont. 247, 44 P. 969; Withers v Kemper, 25 Mont. 432, 65 P. 422. We may therefore investigate and determine whether the verdict is supported by any substantial evidence.
The train which struck the cattle was going from Cascade to Hardy. About 140 feet north of the place where the cattle were struck by the train, a point of rocks juts out to within six feet of the track, and the track curves around it. The engineer testified that when he first saw the cattle they were coming up from behind this point of rocks, on the track, about 200 feet away from the engine; that the train was running between 41 and 42 miles per hour, and was equipped with automatic air brakes, which were in first-class condition; that immediately upon seeing the cattle he made "an emergency application of the brakes" and gave the stock alarm: that he struck the cattle before the train stopped; that he could have done no more to prevent the striking; that he stopped the train within 600 feet; and that stopping the train inside of a thousand feet was a good stop. This testimony is uncontradicted, and this witness was the only one called who clearly saw the accident. There is no evidence even tending to show that the engineer of the train was not on the lookout. His testimony is uncontradicted that he saw the cattle, about 200 feet away from the engine, coming up on the track. His testimony is also uncontradicted that he did everything in his power to stop the train before striking the cattle. No negligence of the defendant under any circumstances can be predicated upon this uncontradicted testimony, and the court below should have directed a verdict in its favor.
But again, there is no competent testimony in the record as to the amount of damages sustained by plaintiff. Three animals were killed, and three injured, one of which afterward died. Plaintiff was the only witness upon the question of damages and he failed to testify directly or clearly as to the amount of his damages. He was not asked as to the amount of his damages, but simply as to the value of the animals killed and injured. He does not give the damages he sustained to the cattle which were injured and not killed, and his testimony as to the value of the cattle killed is also very indefinite, as shown by the following questions and answers: ...
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