Haner v. Northern Pac. Ry. Co.

• Court: Idaho Supreme Court
• Writing for the Court: SULLIVAN, J.
• Citation: Haner v. Northern Pac. Ry. Co., 62 P. 1028, 7 Idaho 305 (Idaho 1900)
• Decision Date: 20 November 1900
• Parties: HANER v. NORTHERN PACIFIC RAILWAY COMPANY

62 P. 1028

7 Idaho 305

HANER v. NORTHERN PACIFIC RAILWAY COMPANY

Supreme Court of Idaho

November 20, 1900

ALLEGATIONS.-Where the complaint alleges negligence only in the running managing and operating a locomotive and train of cars, the right of recovery is limited to the negligence alleged. As the well-settled rule is, the evidence must be confined to the issues made by the pleadings.

EVIDENCE-PEREMPTORY INSTRUCTION.-Where there is no evidence to establish the material issues of the complaint, the court on motion of the defendant ought to instruct the jury to return a verdict for the defendant.

SAME-FACTS NOT IN ISSUE.-Evidence ought not to be admitted of facts not put in issue by the pleadings.

CONTRIBUTORY NEGLIGENCE-BURDEN OF PROOF.-Under the rule laid down in Minty v. Union P. Ry. Co., 21 P. 660, 2 Idaho 471, Rumple v. Oregon Short Line Co., 4 Idaho 13, 35 P. 702, and Spokane etc. Ry Co. v. Holt, 4 Idaho 443, 40 P. 56, it was error for the court to instruct the jury that the burden of proof was upon the defendant to establish contributory negligence on the part of plaintiff, as the plaintiff must allege and prove that the damage occurred without contributory negligence on his part.

INSTRUCTIONS.-When no interest is demanded in the complaint it is error to instruct the jury to return a verdict for interest.

(Syllabus by the court.)

APPEAL from District Court, Nez Perces County.

Reversed and remanded, with costs of this appeal in favor of appellant.

James E. Babb, Stephens & Bunn, and Ellis T. White, for Appellant.

The complaint having charged negligence only in running, managing and operating locomotive, train and cars, the right of recovery must be limited to such negligence. Under such a complaint recovery cannot be had for a loss occurring by reason of failing to fence (and there is no evidence in this case of failure to fence) a railroad track under the statutory obligation created by section 2679 of the Revised Statutes of Idaho. (Lainiger v. Kansas City etc. R Co., 41 Mo.App. 165; Young v. Kansas City etc. R. Co., 39 Mo.App. 52; Fraysher v. Mississippi River etc. R. Co., 66 Mo.App. 573; Aubuchon v. St. Louis etc. R. Co., 52 Mo.App. 522; Goodwin v. Chicago etc. R. Co., 75 Mo. 73; Dryden v. Smith, 79 Mo. 525; Scheider v. Missouri P. R. Co., 75 Mo. 295; Toledo etc. R. Co. v. Reed, 23 Ind. 101, following Indianapolis etc. R. Co. v. Clark, 21 Ind. 150; Gulf etc. R. Co. v. Washington, 49 F. 347; Pittsburgh etc. R. Co. v. Stuart, 71 Ind. 500; Dickey v. Northern P. R. Co., 19 Wash. 350, 53 P. 347; Kansas P. R. Co. v. Taylor, 17 Kan. 566; Patrie v. Oregon Short Line R. Co., 6 Idaho 448, 56 P. 82.) That complaint must also negative exceptions in the statute. (Louisville etc. R. Co. v. Belchor, 89 Ky. 193, 12 S.W. 195; Ohio etc. R. Co. v. Brown, 23 Ill. 94.) It was error for the court to instruct that the burden of proof was upon the defendant to establish contributory negligence of the plaintiff. (Spokane etc. Ry. Co. v. Holt, 4 Idaho 443, 40 P. 56; Rumpel v. Oregon Short Line etc. Ry. Co., 4 Idaho 13, 35 P. 702; Minty v. Union P. Ry. Co., 2 Idaho 471, 21 P. 663.) The servant seeking recovery for an injury takes the burden upon himself of establishing negligence on the part of the master and due care on his own part. (See, also, Bergert v. Davenport City R. Co., 34 Iowa 571; Waldron v. Portland etc. R. Co., 35 Me. 422; Eames v. Boston etc. R. Co., 14 Allen (Mass.), 151; Greenleaf v. Illinois Cent. R. R. Co., 29 Iowa 14, 4 Am. Rep. 192; Hinchley v. Cape Cod R. Co., 120 Mass. 257; Walsh v. Oregon R. Co., 10 Ore. 250.) The undisputed evidence shows that the plaintiff turned her cow out to run at large on the highways and elsewhere without protection and in the proximity to the railroad and trains of the defendant. This constitutes contributory negligence on the part of the plaintiff. (Robinson v. Flint etc. R. Co,, 79 Mich. 323, 19 Am. St. Rep. 174, 44 N.W. 779; Dickey v. Northern P. Ry. Co., 19 Wash. 350, 53 P. 347; Bunnell v. Railway Co., 13 Utah 314, 44 P. 927; Schneekloth v. Chicago etc. Ry. Co., 108 Mich. 1, 65 N.W. 663.)

Thomas Mullen, for Respondent, files no brief.

SULLIVAN J. Huston, C. J., and Quarles, J., concurring.

OPINION

SULLIVAN, J.

This suit was brought to recover the value of a Jersey cow alleged to have been killed by the appellant because of the negligence and careless running of a locomotive and train of cars. The complaint alleges that said cow casually and without the fault of plaintiff strayed in and upon the track and grounds occupied by the railroad of defendant, about two miles east of the city of Lewiston, upon what is known as the "Delsol Land." The complaint further alleges as the ground of the liability of the defendant that defendant, "not regarding its duty, so negligently and carelessly ran, managed, and operated its said locomotives, trains, and cars that the same ran against and over the said cow and killed the same." The amended answer of defendant puts in issue the allegations of the complaint. The case was tried by the court with a jury, and verdict and judgment was entered in favor of the plaintiff. This appeal is from the judgment, and was taken within sixty days after the entry thereof.

The evidence of the plaintiff shows the ownership and value of the cow; that on the morning of the 30th of September, 1898, the cow left home before she had been milked. Children were sent to find her, and found her lying near the railroad track, in a badly bruised and helpless condition. The only eyewitness to the striking of the cow by appellant's locomotive, who testified in the case, was George A. King, the fireman on said locomotive. None of plaintiff's witnesses saw the accident, and they knew nothing of it, except that the animal was found in a helpless condition near the railroad track. The testimony of said King, which was uncontradicted or unimpeached, is to the effect that the train of cars referred to consisted of twenty-one cars, and that the train was running at a speed of about twenty-five miles an hour when the cow was first seen; that she came upon the track from the south side, from behind a line of trees and brush; that it was impossible to see her before she came out from behind the brush; that she came running out from behind the brush, and very suddenly ran upon the track; that the train was within three hundred feet of her at the time it was first possible to see her. It is shown that the track was substantially straight for some distance in the direction from which the train was coming, before reaching the point where the cow was struck, and that the trees and brush stood so close to the track as to preclude possibility of seeing the cow until she ran out from behind them and rushed upon the track. The rules of the company permitted said train to run thirty miles an hour, and at the time said cow was first seen the train was running about twenty-five miles per hour. It is also shown that as soon as the cow was seen the whistle was blown, and an emergency application of brakes made, to stop the train. It is also shown that it was impossible to stop the train after the cow was seen before the train struck her, and that when the cow was struck the speed of the train had been reduced to about ten or twelve miles an hour. The testimony shows that the cow was allowed to run at large on the public highway and elsewhere, without any attention, from the time she was turned out in the morning until she was gotten up in the evening, and that the plaintiff had full knowledge of the existence of the railroad track and the running of trains over the same in the vicinity where the cow was permitted to run at large.

Seven errors are assigned, six of which refer to the instructions given and refused by the court, and one to the admission of certain evidence, and a refusal to strike such evidence out after it was let in. It is above shown that the plaintiff seeks to recover for the negligent and careless killing of a cow, and the complaint charges negligence only in running managing, and operating a locomotive and train of cars. The right to recover is limited to the negligence alleged. The court admitted, over the objection of appellant, evidence tending to prove that appellant had not fenced its track at the point where the cow was killed, as required by the provisions of section 2670 of the Revised Statutes. Evidence was also admitted, over the objection of defendant, that a highway crossed the railroad track near where the cow was killed--all of which is assigned...