Johnson v. Chicago, M. & St. P.R. Co.

• Decision Date: 02 February 1904
• Parties: N. P. JOHNSON v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

98 N.W. 312

122 Iowa 556

N. P. JOHNSON v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

February 2, 1904

Appeal from Woodbury District Court.--HON. F. R. GAYNOR, Judge.

SUIT to recover the value of two horses killed by one of the defendant's trains. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.

Affirmed.

Shull & Farnsworth for appellant.

F. B Robinson for appellee.

OPINION

SHERWIN, J.

At the time of the accident the plaintiff lived at Tripp, S. D., and it occurred near that place. His team, hitched to a buggy, escaped from his control about ten o'clock in the night, ran away, left the wagon road, and went upon the defendant's right of way, and upon its track, where it became entangled in the harness, and was struck by one of the defendant's trains. It is conceded that the defendant was not bound to be on the lookout for the team at the point where it was struck, and that its only duty was to exercise reasonable diligence and care to stop the train after the team was in fact seen by the trainmen. The sole question, then, for the jury to determine, was whether the engineer did in fact see the team in time to have avoided the accident by the exercise of the required care.

There was a full moon on the night in question. The plaintiff testified that "the night was a moonlight night," and that "the sky was clear," and that he could see over a half mile and distinguish buildings and telephone posts. The defendant's witnesses testified that it was not as light as claimed by the plaintiff, but their testimony tended also to show that it was a clear night. The engineer of the train testified that his eyesight was good, that he could see as far as the ordinary man on the night in question, and that he was constantly looking ahead of his engine, and did not see the horses until the engine was within four or six rods of them, and that he then stopped his train as soon as possible. If the jury had found the statement of this witness as to the time when he discovered the horses true, it is doubtful whether the verdict could be sustained, because it fairly appears that the train could not then have been stopped in time to prevent the accident, but the jury did not so find. On the contrary, it found that the engineer first discovered the horses when the engine was six hundred feet from them, and, if such was the fact, there...