Carr v. Minneapolis, St. P. & S.S.M. Ry. Co.
| Decision Date | 08 July 1907 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Foster county; Burke, J.
Action by P. J. Carr and another against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. Verdict for plaintiffs. From an order denying its motion for a new trial, defendant appeals.
Affirmed.
Order affirmed, with costs to plaintiffs.
Lee Combs and Alfred H. Bright, for appellant.
There can be no recovery unless defendant's trainmen failed to exercise ordinary care to prevent injury to stock after they are discovered in a place of danger. Wright v Minneapolis, St. P. & S. Ste. M. Ry. Co. 12 N.D. 159, 96 N.W. 324; Peterson v. Wisconsin Cent. Ry. Co. 56 N.W. 639; Carey v. Chicago, M. & St. P. Ry. Co. 20 N.W. 648; Richardson v. Chicago & N.-W. Ry. Co. 14 N.W. 176; McMullen v. Dickinson Elevator Co. 65 N.W 663; Bostwick v. Minneapolis & P. Ry. 2 N.D. 440, 51 N.W. 781; Hodgings v. Minneapolis, St. P. & S. Ste. M Ry. Co. 3 N.D. 382; 56 N.W. 139; O'Leary v. Brooks El. Co. 7 N.D. 554, 75 N.W. 919.
Contributory negligence was an issue in the case, and the instruction asked was proper. Habenicht v. Chicago, St. P. & O Ry. 105 N.W. 910; Richardson v. Chicago, M. & St. P. Ry. Co. supra.
T. F. McCue, for respondent.
Permitting cattle to run at large is not of itself negligence. Cameron v. Great Northern Ry. Co. 8 N.D. 124, 77 N.W. 1016; Kearns v. Southern Ry. Co 52 S.E. 131; Johnson v. Chicago, M. & St. P. Ry. Co. 13 N.W. 673; Heath v. Coltenback, 5 Ia. 490.
It is the duty of the carrier to keep a lookout. Railroad Co. v. Watkins, 29 S.W. 232; Railroad v. Hewitt, 67 Tex. 479; Wright v. Railway, 2 Am. & Eng. R. Cases, 121.
The question of negligence was properly submitted. Bennett v. Chicago, M. & St. P. Ry. Co. 66 N.W. 934; Killbach v. Chicago, M. & St. P. Ry. Co. 84 N.W. 192.
Contributory negligence is an affirmative defense, and must be alleged and proved by him who relies on it. Ouverson v. City of Grafton, 5 N.D. 281, 65 N.W. 676; Gram v. Northern P. Ry. Co. 1 N.D. 252, 46 N.W. 972; Clark v. Canadian P. Ry. Co. 69 F. 543.
This is an action for the killing of certain cattle and the injury of others, the property of the plaintiffs, by a railway train of the defendant, on the defendant's right of way in section 1, township 145, range 66. The verdict was for plaintiffs in the sum of $ 90. Defendant's motion for a new trial was denied, and from this order defendant appeals.
In their complaint the plaintiffs allege damages in the sum of $ 100, and charge the defendant, through its agents and employes, with carelessness and negligence in running and operating its train, which resulted in the killing and injury. The defendant answered, admitting the killing of certain cattle on the 7th day of November, 1903, and that they were, in their belief, the property of the plaintiff Carr, and charges them with trespassing on the right of way and railway tracks of the defendant at the time of such accident, and denies that the damages exceeded $ 60, and, as to other allegations of the complaint, makes general denial. The case was tried to a jury, and the plaintiff Carr testified as to the date, location, killing, and injury, and that the damage was $ 90. On cross-examination it was shown that he lived one mile south of the railway track, and had a section of land there, and the plaintiff Erickson had a half interest in the stock, and that at the time of the accident they were pasturing their cattle by letting them run at large on the prairie, and inclosing them in a corral at the house at night. The morning before the accident occurred the cattle had been turned out from the corral with no one in charge. There were 50 head, and they had been driven onto 320 acres of grass land south of the buildings on the side of the track where they were turned out. We infer from the evidence that the track ran northwest and southeast. The other side was stubble land, and they had never been known before to go toward the railway track, and there was no fence between the corral and the premises and the railway track. The owners had kept watch of them, and none had been killed before. They had generally stayed south of the buildings until evening. One Murphy testified on behalf of plaintiffs that he was fixing a fence about 50 rods from where the accident occurred, and saw it. The train was a freight, and he thought it was making pretty good time, but was unable to estimate the speed at which it was running. When he first observed the train, the cattle were on the right of way, and the train was quite a little distance from the cattle, probably 60 or 80 rods. When he first noticed them on the right of way, he quit working and ran towards the train. The cattle and the train were running east. The train seemed to run faster after it got among the cattle. He also testified that the accident occurred between 2 and 3 o'clock, that the train sounded a signal, but as there was a crossing there, he did not know whether it was for the crossing or for the cattle. He also testified that the train stopped about a quarter of a mile from where it struck the first animal, and a man appeared to pull an animal from under the engine box, but the train got away before he reached it. On cross-examination he testified that it was a clear, bright day, of which he was sure. He thought the train was about a quarter of a mile from the cattle when the alarm was sounded, and testified that the track was straight with nothing to obstruct the view of the engineer, and that they appeared to put on more steam in an effort to catch the cattle. The plaintiffs rested, and the defendant moved the court to instruct the jury to return a verdict for the defendant, because the evidence showed the plaintiffs guilty of contributory negligence, which was the approximate cause of the injury complained of, and because there was no evidence to establish the fact that the defendant wrongfully or negligently caused the injury complained of. The court denied this motion, to which the defendant excepted, and assigned the ruling of the court as error.
By section 4297, Rev. Codes 1905, the killing or damaging of stock by cars or locomotives along the railroad is made prima facie evidence of carelessness and negligence on the part of the corporation. It therefore became necessary for the defendant to overcome the prima facie case made by the plaintiffs, when they showed the killing and injury. Did it do so on the cross-examination of the plaintiff Carr and the witness Murphy? It is, in substance, contended by the appellant that it did. This contention is based largely upon the authority of Wright v. Railway Co. 12 N.D. 159, 96 N.W. 324, wherein the court held the plaintiff guilty of contributory negligence as a matter of law. We are unable to agree with the appellant's counsel in his opinion that the case above cited is authority in this case, for the reason that the facts are materially different. In that case, the buildings of the plaintiff were only 30 rods from the railway track, and the stock was known to be in the habit of going upon the right of way and had done so all winter, and the plaintiff "had seen them do so a good many times up to the day of the killing," and knew that his horse was in danger, and usually drove it out when he saw it on the right of way. Some of his cows had been killed by the defendant a short time before, yet he turned his horse out on the 14th day of April, the day of the accident, without watch or attendant, to follow his habit of going on the right of way. On that day both the plaintiff and his hired man saw his horse on the right of way, but made no endeavor to drive it out of its exposure to danger. The court held that by reason of the plaintiff having turned his horse out, in defiance of the law prohibiting it being at large at that season of the year, in a place of known danger, and with knowledge of its habit of going onto the right of way, to become a menace to the safety of the traveling public and to the rights of the common carrier, the plaintiff was guilty of contributory negligence which would defeat his recovery.
The case at bar, as relates to the acts of both plaintiffs and defendant, stands upon a different state of facts. The buildings of the plaintiffs from which the cattle were driven were one mile from the railway tracks, and the cattle had not before been known to go upon the right of way. There was no inducement for them to go, because it was stubble on that side, while it was grazing land upon the side where they were turned out. The evidence, as it stood at the time this motion was made, it seems to us, leaves the question of contributory negligence, if in the case at all, a proper one for submission to the jury. Contributory negligence, as well as negligence of the defendant, are questions for the jury in a case at law, unless the conceded facts from which the inference must be drawn admit of only one conclusion. If the facts are such that different, impartial minds might fairly draw different conclusions from them, they should be submitted to the jury, and are only for the court when such that fair-minded men might draw only one conclusion from them. Mares v. N. P. Ry. Co. 3 Dak. 336, 21 N.W. 5; Northern P. R. Co. v. Mares, 123 U.S. 710, 8 S.Ct. 321, 31 L.Ed. 296; Heckman v. Evenson, 7 N.D. 173, 73 N.W. 427; Cameron v. Ry. Co. 8 N.D. 124, 77 N.W. 1016; Owen v. Cook, 9 N.D. 134, 81 N.W. 285, 47 L. R. A. 646; McKeever v. Homestake Mining Co. 10 S.D. 599, 74 N.W. 1053; Bohl v. Dell Rapids, 15 S.D. 619, 91 N.W. 315; Pyke v....
To continue reading
Request your trial