Lighthouse v. Chicago, M. & St. P. Ry. Co.
| Decision Date | 15 February 1893 |
| Citation | 54 N.W. 320,3 S.D. 518 |
| Parties | LIGHTHOUSE v. CHICAGO, M. & ST. P. RY. CO. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. It is the right of the jury to determine the probative force of evidence, whether direct or circumstantial.
2. A positive statement of a witness may be discredited and rejected by the jury, if they believe other evidence in the case establishes the existence of circumstances inconsistent with, and which make improbable, such statements.
3. In an action for killing stock trespassing upon defendant's right of way the jury is not obliged to accept as conclusive the positive evidence of the engineer that, although he was looking forward along the track, he did not see such stock until within 25 or 30 feet of them, if they believe from other evidence that at the time of the accident it was so light as to render such statement improbable.
Appeal from circuit court, Brown county; A. W. Campbell, Judge.
Action by Henry Lighthouse against the Chicago, Milwaukee & St. Paul Railway Company to recover damages for killing plaintiff's horses. From a judgment for plaintiff defendant appeals. Affirmed.
John H Perry, (H. H. Field and Burton Hanson, of counsel,) for appellant. Geo. W. Jenkins and F. A. Luse, for respondent.
This action was brought to recover damages for killing a number of horses belonging to plaintiff. The horses were killed near the east end of a pile bridge in defendant's roadbed by an extra engine running west. The accident occurred in the evening. The horses were running at large, and for some time before the accident the plaintiff and his son had been unsuccessfully trying to capture them. The evidence tends to show that they came upon the track about half a mile east of the place of the accident, and traveled along or upon the track towards the bridge where the accident occurred, and were together just at the east end of the bridge when they were struck. The plaintiff recovered judgment, and the defendant appealed to this court.
No exception was taken by either side to the charge of the court, and it must, for the purposes of this case, be taken as the law. The court charged that the horses were trespassers on defendant's right of way; that the defendant company had a right to presume that its own right of way would not be occupied by others having no rights there; and that under the circumstances of this action the employes of the defendant upon the engine were not bound to keep a lookout ahead for animals that might be upon the road but that it was their duty, whenever any animals were discovered upon the track, to use all reasonable means to avoid the injury of such animals. The question of fact, then for you to determine is, when did the engineer and the other persons having charge of this train first discover these animals upon the track? It is not a question of when he might have discovered them, but when did he in fact discover them? When he did discover them it was his duty to use all the means within his power as a skillful engineer to avoid the injury to those animals, and therefore you are to determine from all the evidence when he first discovered the animals, and then you are to determine from the evidence whether or not he used all the means in his power--all reasonable means--to avoid hitting them after they were discovered by him on the track. Thus the question of fact referred to the jury was very simple, and covered only the inquiry whether the horses were in fact discovered in time to prevent the accident, if the persons in charge of the engine had made proper and reasonable efforts so to do. The engineer testified that he did not discover the horses on the track until he was within 30 or 40...
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