Graves v. Northern P. R. Co.

• Decision Date: 07 January 1885
• Citation: Graves v. Northern P. R. Co., 5 Mont. 556, 6 P. 16 (Mont. 1885)
• Parties: GRAVES v. NORTHERN PAC. R. CO.
• Court: Montana Supreme Court

6 P. 16

5 Mont. 556

GRAVES v. NORTHERN PAC. R. CO.

Supreme Court of Montana

January 7, 1885

Appeal from Third district, Meagher county.

Sanders & Cullen, for appellant.

George F. Cowan, for respondent.

GALBRAITH J.

This action was originally brought in the justice court of Meagher county. The pleadings were as follows, viz.:

The complaint, after alleging, in substance, that the appellant is now, and was at the time of the injury complained of, a corporation organized under the laws of the United States and the owner of a certain railroad running through the territory of Montana and a portion of Meagher county, in said territory; and that the respondent was the owner of a certain mare of the value of $160, running in an inclosure adjoining the track and ground occupied by the railroad of the appellant in the county of Meagher; and that on or about the seventh day of October, 1883, without the fault or neglect of the respondent, the said mare strayed upon the ground occupied by the railroad of the appellant; and that the appellant, at the time and place above stated, so carelessly and negligently run its locomotives and cars that the same ran over the mare and killed her, to the damage of the respondent in the sum of $160,--contains the following averment:

"That heretofore, to-wit, on the twelfth day of October, 1883, at the said county of Meagher, and before the bringing of this action, under and by virtue of an act passed by the legislature of the territory of Montana, approved February 23, 1881, entitled 'An act to provide for the payment of stock killed or injured by railroads,' and an act amendatory thereto, approved March 2, 1883, this plaintiff having made and filed the necessary affidavits, and having duly served notice upon said defendant, and the necessary appraisers having been appointed to appraise the value of said mare, which valuation was duly assessed and returned by said appraisers to said defendant, fixing the value of said mare at the said sum of one hundred and sixty dollars has complied with the provisions of the aforesaid act and the amendment thereto; that since the due return of the aforesaid appraisers more than thirty days have elapsed before the bringing of this action, and the said defendant has not paid the said sum of one hundred and sixty dollars or any part or portion thereof."

The answer was, in substance, as follows:

It "denies that the respondent was the owner of the mare, or that she was of any greater value than eighty dollars; or that it was through the negligence of the appellant that she was killed, or that she strayed upon the railroad without the fault of the respondent. It affirmatively alleges that the animal was killed through the fault and negligence of the respondent, in permitting it to depasture in a field through which the appellant's road runs, which was not fenced so as to prevent it from straying upon the track, and that it was while the appellant was carefully operating its road, and running locomotives and cars thereon, as it might lawfully do, that the animal strayed upon the track of the appellant, and in consequence thereof, and without the fault or negligence of appellant, was accidentally run over and killed."

The replication denied that the animal was killed through any negligence of the respondent. It admits that the inclosure was not fenced at the railroad, and that the animal strayed from such inclosure upon the track. It avers that said mare was rightfully pastured there, and strayed upon the track without any fault, omission, or neglect of the respondent, and was killed and destroyed through the want of care and negligence of said defendant *** in the operating and management of its said locomotive and cars, and that she was of the full value of $160, as alleged in the complaint.

Judgment was rendered in the justice court against the appellant and in favor of the respondent for the...