McKissick v. Oregon Short Line Ry. Co.

• Decision Date: 26 March 1907
• Parties: M. McKISSICK, Respondent, v. OREGON SHORT LINE RAILWAY COMPANY, Appellant
• Court: Idaho Supreme Court

89 P. 629

13 Idaho 195

M. McKISSICK, Respondent, v. OREGON SHORT LINE RAILWAY COMPANY, Appellant

Supreme Court of Idaho

March 26, 1907

NEGLIGENCE OF RAILWAY COMPANY-INJURIES TO LIVESTOCK-PROOF OF DAMAGES-SUFFICIENCY OF EVIDENCE-COMMENT ON FACTS BY COURT.

1. Where there is a substantial conflict in the evidence as to whether the engineer on a railway train could have seen livestock on the track ahead of his train, and could have with the exercise of reasonable diligence and care, stopped his train prior to striking the stock, and injuring and killing them, the verdict of the jury and judgment entered thereon will be sustained on appeal.

2. Where the evidence is such that reasonable men might honestly differ as to the conclusion to be reached therefrom, the verdict of the jury thereon will not be disturbed.

3. Where a witness, called to testify as to the amount of damages caused on account of injury to livestock, testifies that an animal has been damaged to the extent of a specific sum, and it is further shown what an animal of that age, kind and character was reasonably worth at the time of injury, and the nature of the injury inflicted on the animal is also shown; held, that notwithstanding the fact that the proof as to the amount of damage inflicted was not made in the usual manner, when considered in connection with the other facts that were before the jury, they had sufficient evidence to enable them to arrive at a proper estimate of the damage sustained.

4. It is highly improper for a trial judge to comment on the evidence and make statements of fact in the presence of the jury, or to discuss in their presence the inference and conclusion to be arrived at from certain facts that have been proven; the jurors are the sole judges of the evidence and of the conclusions to be reached therefrom.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial. District for Blaine County. Hon. Lyttleton Price, Judge.

Action to recover damages for the killing and injuring of livestock by a railway train. Judgment for plaintiff. Defendant appealed. Affirmed.

Judgment affirmed with costs in favor of the respondent.

P. L Williams, F. S. Dietrich and D. Worth Clark, for Appellant.

Where the only proof to establish negligence of the defendant in killing stock is the fact that the place where stock was run over and killed by a moving freight train was at a point on the track where persons in charge and operating said train could have seen the cow in time to have stopped the train, in the absence of all showing as to when the cow went upon the track, there is not sufficient evidence to establish negligence upon the part of the defendant to entitle the plaintiff to recover. (Kansas City L. & S. K. Ry. Co. v Bolson, 36 Kan. 534, 14 P. 5; Jensen v. Northern P. Ry Co., 8 Idaho 599, 70 P. 790; Jones v. Oregon etc. R. R. Co., 6 Idaho 441, 56 P. 76.)

The mere fact that the cattle were on the track would not impose upon an engineer the absolute duty of stopping his train. (Yazoo & M. V. R. R. Co. v. Wright, 78 Miss. 125, 28 So. 806; Western Ry. Co. v. Lazarus, 88 Ala. 453. 6 So. 877; Peoria etc. Ry. Co. v. Champ, 75 Ill. 577; St. Louis etc. Ry. Co. v. Russell, 39 Ill.App. 443; Louisville etc. Ry. Co. v. Bowen (Ky.), 39 S.W. 31; Yazoo Ry. Co. v. Whittington, 74 Miss. 410, 21 So. 249.)

Testimony merely as to the value of the animals killed and injured is too indefinite on which to base judgment. (Carman v. Mont. Cent. R. Co., 32 Mont. 137, 79 P. 690.)

Testimony merely as to value, from a witness not shown to be competent to testify on that point, does not give the jury any facts upon which they may test the credibility of the witness, and such testimony is incompetent. (Lee v. Callahan, 84 N.Y.S. 167.)

The witness is to testify only to facts. He is to speak as to the facts which he has heard or seen. His opinion is not to be given, for it is the opinion of the jury on the testimony which forms the verdict and decides the case. (Sedgwick on Damages, 8th ed., sec. 290.)

In an action for injuries to plaintiff's cattle he was not entitled to testify that his damage to the cattle amounted to the gross sum of $ 400. The determination of the gross damage, apart from the elements thereof, being for the jury. (Pacific Livestock Co. v. Murray, 45 Or. 103, 76 P. 1079; Burton v. Severance, 22 Or. 91, 29 P. 200; Berg v. Imp. Co., 38 Wash. 342, 80 P. 528; De Wald v. Ingle, 31 Wash. 616, 96 Am. St. Rep. 927, 72 P. 469; Hoskins v. Huling, 2 Will. Civ. Cas. (Tex.) 162.)

The remarks volunteered by the court constitute such error as warrants a reversal of this case, if no other error appeared in the record.

A party has a right to have his requests for instructions submitted to the jury if relevant and correct, unless they are fully covered by the general charge. (Braucht v. Graves-May Co. (Neb.), 89 N.W. 417.) It is error to refuse an instruction warranted by the law and the evidence, not covered by other instructions in the case. (Marsh v. Cramer, 16 Colo. 331, 27 P. 169.)

McFadden & Broadhead, for Respondent.

In view of the contradictory statements of the engineer the jury were amply justified in disbelieving his testimony.

"When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury." (Grand Trunk Ry. Co. v. Ives, 144 U.S. 408. 36 L.Ed. 485, 12 S.Ct. 679; Gulf C. & S. F. Ry. Co. v. Ellis, 54 F. 481, 4 C. C. A. 454.)

When a train runs down stock which the engineer saw and should have avoided, the railroad company is liable. (Buster v. Hannibal & St. J. Ry. Co., 18 Mo.App. 578; St. Louis & S. F. Ry. v. Carlyle, 75 Ark. 560, 88 S.W. 584; Wilson v. Norfolk & S. R. Co., 90 N.C. 69; Chicago etc. Ry. Co. v. Barrie, 55 Ill. 226; Shuman v. Indianapolis etc. Ry. Co., 11 Ill.App. 472; Missouri P. Ry. Co. v. Reynolds, 31 Kan. 132, 1 P. 150; Woodland v. Union P. Ry. Co. (Utah), 26 P. 298; Johnson v. Rio Grande W. Ry. Co., 7 Utah 346, 26 P. 926; Union P. D. & R. G. Ry. v. Patterson, 4 Colo. App. 575, 36 P. 913; Denver & R. G. R. Co. v. Nye, 9 Colo. App. 94, 47 P. 654.)

An examination of the record will show that counsel saved no exception to objectionable remarks of the court, and furthermore his principal witness testified to the same thing.

AILSHIE, C. J. Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

This action was commenced to recover damages for killing three head of cattle and maiming one cow. The animals were injured and killed near the station at Tikura, on the Hailey branch of the Oregon Short Line Railway, on the thirteenth day of July, 1905, and damages were claimed in the sum of $ 140. The injury and loss was caused by one of the defendant's freight trains striking the animals while crossing the track. Verdict was returned in favor of the plaintiff for the sum of $ 110, and judgment was entered accordingly; defendant moved for a new trial and the motion was denied, and this appeal is from the judgment and order.

The assignments of error may be properly considered under four groups, and we will treat them in their order: 1. Insufficiency of the evidence to support the verdict and judgment; 2. Rulings of the court in the admission and rejection of evidence; 3. Remarks by the judge in the presence of the jury; 4. Refusal of the court to give certain instructions requested by defendant.

As to the sufficiency of the evidence, an examination thereof leaves no doubt. Although there is a conflict, there is abundant evidence to justify a reasonable man in concluding that the engineer was guilty of negligence in operating his train, and by reason thereof inflicted injuries and caused the damages complained of. The railway company contends, and indeed furnished proofs to that effect, that while the engineer...