LeWis v. Fremont, E. & M. V. R. Co.

• Citation: 7 S.D. 183,63 N.W. 781
• Court: Supreme Court of South Dakota
• Decision Date: 15 June 1895
• Parties: LEWIS v. FREMONT, E. & M. V. R. CO.

7 S.D. 183

63 N.W. 781

LEWIS

v.FREMONT, E. & M. V. R. CO.

Supreme Court of South Dakota.

June 15, 1895.

Syllabus by the Court.

1. The exercise of reasonable care to prevent injury to trespassing animals discovered upon a railway track relieves the company from liability in case such animals are struck by a passing train.

2. A motion for the direction of a verdict in favor of the defendant at the close of all the testimony should be sustained, although the killing is admitted, when the statutory presumption of negligence arising therefrom has been clearly overcome by the undisputed evidence.

Appeal from circuit court, Pennington county; William Gardner, Judge.

Action by John W. Lewis against the Fremont, Elkhorn & Missouri Valley Railroad Company. Plaintiff had judgment, and defendant appeals. Reversed.James W. Fowler, for appellant. C. J. Patton and A. E. Wallace, for respondent.

FULLER, J.

Respondent brought this action and obtained a judgment for the value of a horse killed upon appellant's railway track by a passing engine. There is no material conflict in the evidence, and it is contended that defendant's motion to direct a verdict at the close of the testimony should have been granted. Plaintiff, who was in the employof the defendant as a section laborer at the time the horse was killed, testified as follows: “I didn't see the horse killed. I saw the horse Saturday night. It was in a cut on the prairie. They come out of a field,-a small field,-and go into this cut. Between the field and the cut there is a place where the cattle would cross the railroad. It was a regular crossing. The embankment ran down nearly to the ties. The embankment was five or six feet high.” “A. I seen his tracks where he came down the track, where he entered the cut. He jumped right onto the track where the section men had been at work. There were ties along the edge of the track. He could not run on the side of the track. He started to run through the cut. There was only one horse's tracks. The horse was going north. *** I didn't see this accident. I heard the train going up about nine o'clock at night. After I found the horse, I supposed it was the one that did it. T. Miles, the section man, was with me when I made the examination of these tracks. The horse ran along the track 250 feet. It was the length of eight rails. I do not know where the engine was when the horse went onto the track. The ties were along there-the old ties-for about seven or eight hundred feet. The horse went onto the track at the south end of the cut.” Another witness sworn in plaintiff's behalf testified that, in his opinion, the horse tracks upon the railroad extended only about 100 feet from where the animal appeared to come into the cut to the place where he lay when found. It appears that the engine that struck the horse was practically new, in first-class condition, and equipped with all modern appliances in general use; and, by the aid of another engine, likewise equipped, was drawing, at the rate of 15 miles an hour, a freight train consisting of 19 loaded cars, each of which was provided with an air brake properly connected and in good order. The operators of the engines and the train were all experienced and competent railroad men. The accident occurred on a dark, rainy night,...