Hutchinson v. Chi., M. & St. P. Ry. Co.

• Decision Date: 24 June 1896
• Citation: 67 N.W. 853,9 S.D. 5
• Court: South Dakota Supreme Court
• Parties: HUTCHINSON v. CHICAGO, M. & ST. P. RY. CO.

9 S.D. 5

67 N.W. 853

HUTCHINSON

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of South Dakota.

June 24, 1896.

Appeal from circuit court, Grant county; J. O. Andrews, Judge.

Action by Silas N. Hutchinson against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.John W. Bell (H. H. Field, of counsel), for appellant. Thomas L. Bouck, for respondent.

CORSON, P. J.

This was an action to recover the value of certain live stock, alleged to have been killed by the negligence of the defendant. Judgment for plaintiff, and the defendant appeals.

Plaintiff made out a prima facie case by proof that his stock was killed by the train of the defendant, one steer being killed in October, and the other animals in November, 1892. The defendant, to rebut the presumption of negligence arising from the killing of the live stock in November, and to disprove negligence on its part, called as witnesses its engineer, conductor, and two brakemen, in charge of the train of the defendant at the time of the accident in November. The evidence of these witnesses tended to prove that the train that ran into plaintiff's stock was a “special,” comprising engine, two freight cars, and a caboose car, and was running at a speed of from 25 to 30 miles per hour, on an upgrade of about 70 feet to the mile. The evidence further tended to prove that engine, track, and train, generally, were in first-class condition, and that the engineer and train hands did all possible to stop the train after the cattle were discovered upon the track. It may be said, generally, that the evidence, uncontradicted, was sufficient to rebut the presumption of negligence arising from the proof of the killing, and to disprove negligence on the part of the defendant. But evidence was introduced on the part of the plaintiff, in rebuttal of defendant's evidence, that tended to disprove the fact that efforts were made to stop the train after the cattle were discovered on the track, sufficient to raise a substantial conflict in the evidence as to this question. The engineer testified (and he was the only witness on the part of defendant who testified as to the distance) that the train was within 300 or 400 feet of the cattle when he saw them and sounded the alarm whistle. But the witnesses for plaintiff testified that it was 840 feet from the crossing where the cattle were at the time of the accident when the whistle was first sounded. Again, the...