Huber v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 10 October 1889
• Citation: 43 N.W. 819,6 Dakota 392
• Parties: Huber v. Chicago, M. & St. P. Ry. Co.
• Court: North Dakota Supreme Court

43 N.W. 819

6 Dakota 392

Huber v. Chicago, M. & St. P. Ry. Co.

Supreme Court of Territory of Dakota

October 10, 1889

Appeal from district court, Turner county; C. S. PALMER, Judge.

Action by George Huber against the Chicago, Milwaukee & St. Paul Railway Company for the negligent killing of plaintiff's horse. The judgment was for the plaintiff, and the defendant appeals.

Barton Hanson and R. B. Tripp, for appellant. Gray & Warner, for respondent.

SPENCER J.

This action was brought to recover the value of a certain horse alleged to have been killed by and through the gross negligence of the defendant, its agents and servants. Upon the trial, the plaintiff proved ownership of the horse; that he was killed in Hutchinson county, this territory, by being run over by defendant's engine and cars; and his value and rested his case. The defendant then proved, as a matter of defense, by the engineer, fireman, and brakeman who were in charge of the engine and train at the time the accident occurred, under averments in the answer proper for that purpose, that the accident occurred at a place where there was a down grade; that the train was moving at the rate of from 18 to 20 miles an hour; that the horse came upon the track on the left side, about 5 to 10 rods in advance of the moving train; that immediately upon seeing the horse the engine was reversed, the brakes applied, whistle blown, and everything done that was possible to prevent the accident that the engine and cars were provided with the usual and necessary appliances for running trains of cars, and stopping the same; and that the train hands in charge of such engine and train were experienced men in the business, and competent for the service in which they were engaged. It was also in proof that the horse was hobbled. Some witnesses were sworn on behalf of the plaintiff in rebuttal, but nothing of consequence was elicited. The facts as testified to by the engineer, fireman, and brakeman were in no way contradicted or attempted to be; nor was there any evidence tending to show that the engine and train were not properly equipped and managed, or that the accident could have been averted, or that the train could have been stopped, after the horse was first seen on the track, more expeditiously than it was. This was the condition of the case at the close of the testimony and thereupon the defendant's counsel moved the court to direct a verdict in favor of the defendant on the ground that the undisputed evidence, as matter of law, disproved any negligence on the part of the defendant, and that there was not any evidence of negligence sufficient to support a verdict against the defendant. The court denied the motion, and the defendant duly excepted. The plaintiff had a verdict, upon which judgment was rendered, and the defendant appealed.

Proof of the killing of the horse by the defendant was sufficient had the case closed at that point, to have allowed the plaintiff to recover under section 679 of the Code of Civil Procedure. By said section it is provided, in substance, that the...