Mankey v. Chicago, M. & St. P.R. Co.
| Decision Date | 04 May 1901 |
| Citation | 85 N.W. 1013,14 S.D. 468 |
| Parties | MANKEY v. CHICAGO, M. & ST. P. RY. CO. |
| Court | South Dakota Supreme Court |
Appeal from circuit court, Clark county; Julian Bennett, Judge.
Action by Thomas Mankey against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment in favor of plaintiff defendant appeals. Reversed.
George R. Farmer and S. H. Elrod, for appellant. S. A. Keenan, for respondent.
This was an action brought by the plaintiff to recover of the defendant the value of a horse alleged to have been injured through the negligence of the defendant. The facts may be briefly summarized as follows: On November 23, 1898, the plaintiff, who lived about 100 rods easterly from the defendant's railroad, on the line extending from the city of Madison to Bristol, was the owner of a span of horses which upon the morning of that day were turned out upon the prairie. On the following morning the plaintiff discovered one of them about 75 feet east of the railroad track, with one leg cut off and hanging only by the skin. Blood and hair were found along the ends of the ties for some distance, and it is contended that there was evidence from which the jury might properly find, as it did, that the injury was caused by a passenger train of the defendant running from Madison northerly to Bristol, and passing plaintiff's place between 8 and 9 in the evening. The injury to the horse was such as to necessitate its being killed. The presumption of negligence arising from the injury to the horse was overcome by the defendant by proof that the train was in good order, and properly equipped, and that neither the engineer fireman, nor any other person connected with the service saw the horse prior to its injury, and they had no knowledge that it had been injured until the train returned, on the following morning. To rebut this evidence, the plaintiff proved that the place where the horse was found so injured was about 750 feet south of the second highway crossing north of Garden City, and gave evidence tending to prove that no whistle was sounded at the whistling post for that crossing or between the same and the crossing. At the close of all the evidence the defendant moved the court to direct a verdict in its favor on the ground that there was no evidence tending to show negligence on the part of the defendant causing the injury, and no question of fact to be determined by the jury. This motion was denied, verdict and judgment rendered in favor of the plaintiff, and the defendant appeals.
The following questions were submitted to the jury and answers returned: (1)
It is contended on the part of the defendant that there was no evidence to support either of these findings. The engineer testified that there was nothing in or about the engine or pilot to indicate that it had struck any animal, and that the horse could not have been struck by the engine without his being made aware of the fact by the jar of the engine. The only evidence tending to prove that the horse was directly struck by the train was the breaking of a guard piece on the steps of the mail car, at which point were found hair and other marks of striking an animal, and the blood and hair on the ends of the ties. No one, so far as the evidence discloses, saw the accident, and it was not shown how the injury in fact occurred. It will thus be seen that, independently of the presumption of negligence, there was no proof of any negligence on the part of the defendant that directly caused the injury, or from which the jury could have reasonably inferred negligence.
It is contended on the part of the plaintiff that, there being evidence tending to prove that defendant failed to blow its whistle or ring its bell, as provided by section 3016, Comp Laws, that omission constitutes negligence per se, and fully justified the special verdict of the jury, and also its general verdict. The section referred to reads as follows: "A bell at least thirty pounds weight, or a steam whistle, shall be placed on each locomotive engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said railroad shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of fifty dollars for every neglect, to be paid by the corporation owning the railroad, *** and also be liable for all damages which shall be sustained by any person by reason of such neglect." It will be noticed that, in addition to the penalty prescribed by the section, the defendant shall "be liable for all damages which shall be sustained by any person by reason of such neglect." It is not sufficient,...
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