Corbett v. Great Northern Railway Co.

• Decision Date: 04 June 1914
• Docket Number: 1905
• Court: North Dakota Supreme Court

148 N.W. 4

28 N.D. 136

W. W. CORBETT v. GREAT NORTHERN RAILWAY COMPANY

No. 1905

Supreme Court of North Dakota

June 4, 1914

Appeal from the District Court of Williams County, Fisk, J.

Action to recover damages for the loss of horses killed upon a railroad track. Judgment for plaintiff. Defendant appeals.

Modified.

Judgment modified by reducing the amount awarded to the plaintiff in part and judgment affirmed in part.

Murphy & Duggan, for appellant.

The plaintiff has not sustained his burden of proving negligence in the operation of the train by defendant. Corbett v Great Northern R. Co. 19 N.D. 450, 125 N.W. 1054.

It was only the duty of the engineer to use ordinary care when he discovered the animals on the track; his higher duty was to protect himself, the crew, and passengers on the train. Wright v. Minneapolis, St. P. & S. Ste. M. R. Co. 12 N.D. 159, 96 N.W. 324; McDonell v. Minneapolis, St. P. & S. Ste. M. R. Co. 17 N.D. 606, 118 N.W. 819.

The evidence shows that the engineer could not have stopped the train or prevented the accident after he discovered the animals on the track; every act in an endeavor to do so would have been attended with great danger to himself, crew, and train. It was not his duty to take such risk. Corbett v Great Northern R. Co. supra; Rattenbury v. Pere Marquette R. Co. 172 Mich. 106, 137 N.W. 679; Hebron v Chicago, M. & St. P. R. Co. 4 S.D. 538, 57 N.W. 494; Keilbach v. Chicago, M. & St. P. R. Co. 11 S.D. 468, 78 N.W. 951; Harrison v. Chicago, M. & St. P. R. Co. 6 S.D. 100, 60 N.W. 405; Wright v. Minneapolis, St. P. & S. Ste. M. R. Co. 12 N.D. 159, 96 N.W. 324; Miller v. Chicago & N.W. R. Co. 21 S.D. 242, 111 N.W. 553; Hodgins v. Minneapolis, St. P. & S. Ste. M. R. Co. 3 N.D. 382, 56 N.W. 139; Cumming v. Great Northern R. Co. 15 N.D. 611, 108 N.W. 798.

The undisputed evidence of the engineer cannot be arbitrarily rejected and a verdict rendered against it. A verdict rendered in conflict with such evidence is flagrantly against the weight of the evidence. Miller v. Chicago & N.W. R. Co. 21 S.D. 242, 111 N.W. 553; Anderson v. Chicago, R. I. & P. R. Co. 111 Minn. 531, 127 N.W. 455; Atchison, T. & S. F. R. Co. v. Henderson, 27 Okla. 560, 112 P. 986.

It is not enough to show that the horses might have been killed through the negligence of the defendant. Gibson v. Iowa C. R. Co. 136 Iowa 415, 113 N.W. 927; Blid v. Chicago & N.W. R. Co. 89 Neb. 689, 131 N.W. 1027.

The evidence of the engineer overcame any presumption of negligence, and left the plaintiff with the burden of proving actual negligence. Huber v. Chicago, M. & St. P. R. Co. 6 Dak. 392, 43 N.W. 819; Smith v. Northern P. R. Co. 3 N.D. 17, 53 N.W. 173.

Where on the former trial the record showed defendant was entitled to judgment for costs, the mere fact of a new trial and judgment for plaintiff does not entitle him to the costs of the former trial and appeal. Swingle v. Indiana State Bank, 41 Ind. 423; Carbon v. Stout, 7 Bush, 609; 14 Enc. Pl. & Pr. 941; Becker v. Holm, 100 Wis. 281, 75 N.W. 999; Robinson v. Ransom, 12 Ind. 474.

The costs of a first trial must be taxed in favor of the successful party on appeal, notwithstanding a later trial resulted in favor of the other party. Doyle v. Kiser, 8 Ind. 396; Excelsior Draining Co. v. Brown, 47 Ind. 19; Eigenmann v. Kerstein, 72 Ind. 81.

Persons who are not subpoenaed as witnesses, who do not testify, and are not necessary witnesses, are not entitled to fees. They were not called by plaintiff, and the presumption, therefore, is that they were not necessary. Parsons Band Cutter & Self Feeder Co. v. Sciscoe, 129 Iowa 631, 106 N.W. 164, 6 Ann. Cas. 1015; Fisher v. Burlington, C. R. & N. R. Co. 104 Iowa 588, 73 N.W. 1070; Terry v. Montgomery, 166 Ala. 130, 52 So. 314; Goodwin v. Smith, 68 Ind. 301.

Knauf & Knauf, for respondent.

There is only one deduction to be made from the evidence in this case, and that is, that the death of the four horses was due to defendant's negligence, and that same was of such a degree as to be wilful. Sheldon v. Chicago, M. & St. P. R. Co. 6 S.D. 606, 62 N.W. 955; Lighthouse v. Chicago, M. & St. P. R. Co. 3 S.D. 518, 54 N.W. 320.

By the verdict the jury necessarily found that defendant did not use ordinary care to avoid the collision, after the horses were discovered in a dangerous place. McDonell v. Minneapolis, St. P. & S. Ste. M. R. Co. 17 N.D. 606, 118 N.W. 819.

The trial court refused a new trial, and the supreme court will not disturb the verdict and the ruling of the trial court, and hold that the evidence is insufficient to support the verdict. This will not be done. 9 Current Law, 215, and cases cited; Hardt v. Chicago, M. & St. P. R. Co. 130 Wis. 512, 110 N.W. 427; Graham v. Bryant, 7 Cal. Unrep. 288, 87 P. 232; Missouri Real Estate Syndicate v. Sims, 121 Mo.App. 158, 98 S.W. 783; Shively v. De Snell, 35 Mont. 508, 90 P. 749; 3 Century Dig. 3928, 3948-3950, and cases cited.

The proof shows such a high degree of negligence that it amounts almost to a wilful act on the part of defendant. Carr v. Minneapolis, St. P. & S. Ste. M. R. Co. 16 N.D. 217, 112 N.W. 972; Clair v. Northern P. R. Co. 22 N.D. 120, 132 N.W. 776; Bishop v. Chicago, M. & St. P. R. Co. 4 N.D. 536, 62 N.W. 605; Granby v. Michigan C. R. Co. 104 Mich. 403, 62 N.W. 579; Harris v. Missouri, K. & T. R. Co. 24 Okla. 341, 24 L.R.A.(N.S.) 858, 103 P. 758.

Where a judgment for plaintiff is reversed by the appellate court, and a new trial is awarded, if plaintiff recovers on the second trial he is entitled to his costs below, on the former trial. Stoddard v. Treadwell, 29 Cal. 281; Gray v. Gray, 11 Cal. 341; Ex parte Burrill, 24 Cal. 350; 3 Kerr, Cyc. Code Civ. Proc. § 1027; Walker v. Barron, 6 Minn. 508, Gil. 353; Bank of Commerce v. Elliott, 109 Wis. 648, 85 N.W. 417; Jeffery v. Hursh, 58 Mich. 246, 25 N.W. 176, 27 N.W. 7; Garrison v. Singleton, 5 Dana, 160; Senior v. Anderson, 130 Cal. 290, 62 P. 563; Visher v. Webster, 13 Cal. 58; Fox v. Hale & N. Silver Min. Co. 122 Cal. 219, 54 P. 731; Franey v. Smith, 126 N.Y. 658, 27 N.E. 559; Jennings v. St. Louis, I. M. & S. R. Co. 59 Mo.App. 530; National Masonic Acci. Asso. v. Burr, 57 Neb. 437, 77 N.W. 1098.

Costs on appeal are the only costs to be recovered by the successful appellant; the costs of the former trial abide the event of the suit. Gray v. Gray, 11 Cal. 341; Duffy v. Hickey, 68 Wis. 380, 32 N.W. 54; Corbett v. Great Northern R. Co. 19 N.D. 450, 125 N.W. 1054, 23 N.D. 1, 135 N.W. 665.

BRUCE, J. GOSS, J., did not participate.

OPINION

BRUCE, J.

This case has been before this court on two former occasions (19 N.D. 450, 125 N.W. 1054, 23 N.D. 1, 135 N.W. 665). It is an action to recover damages for the loss of certain horses killed by the defendant railway company upon its right of way. The appeal is based on certain errors of law alleged to have been committed in the introduction of evidence, in alleged erroneous instructions, and upon the claim that the case should have been taken from the jury on account of the fact that the evidence showed contributory negligence on the part of the plaintiff in failing to properly fence in his horses, and that there was at any rate no proof of any negligence or breach of duty on the part of the railway company. The allegation of contributory negligence, however, may be entirely eliminated, as the whole case of the plaintiff is based upon the theory of what is known as the rule of the last clear chance. This theory, in fact, can in any event be the only theory advanced, as the horses in any view of the case were trespassers upon the track of the railway company. Corbett v. Great Northern R. Co. 19 N.D. 450, 125 N.W. 1054. The sole and only questions in the case, indeed, are whether, after seeing the stock upon the right of way, the engineer could have stopped or slowed down his train without endangering the lives of himself, or his fellow employees, or the property of the patrons of the road, and have thus averted the accident, and whether a reasonably prudent and duty-regarding man would and should have attempted to do so. The rule of the case is well and properly laid down by the trial court in its instruction to the jury, that "the duty of the engineer, after discovering the presence of animals on the tracks, is to use reasonable care to avoid an accident, if possible, with the means within his power, and if he does use such reasonable care, and you are satisfied from the evidence that he did in this case, then you must find your verdict for the defendant that is, if you are satisfied that the engineer, considering his train and the speed with which it was moving, the grade, the danger to himself, and the other members of the train crew that might result from a collision, the light, and all other circumstances of the case, used reasonable care in the running and management of his train, then he was not guilty of negligence, and your verdict will be for the defendant. In considering the conduct of the engineer to determine whether or not he was negligent, I would instruct you that he is not required to keep a lookout for cattle on the right of way, and is not bound to presume that they may be there. He owed no duty to the plaintiff to assume that his cattle might be on the railroad company's right of way or property, and was under no obligation to keep a lookout for or take steps to prevent striking them until after he discovered them on the tracks in a place of danger. If after he discovered them on the tracks then he could not avoid the accident, you must find that the defendant is not liable in damages. The only negligence that is charged against the defendant is negligence in running and managing the locomotive and cars making the train, and the only matters that you need to...