Miller v. Chicago & N.W. Ry. Co.
| Decision Date | 02 April 1907 |
| Citation | 111 N.W. 553,21 S.D. 242 |
| Parties | MILLER v. CHICAGO & N.W. RY. CO. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Codington County.
Action by Joseph Miller against the Chicago & Northwestern Railway Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Reversed.
R. W Stewart and Seward & McFarland, for appellant.
Case & Shurtleff, for respondent.
This was an action instituted by the plaintiff to recover from the defendant the value of a mule and pony alleged to have been killed by the negligence of the defendant's servants and employés. Verdict and judgment being in favor of the plaintiff, the defendant appeals.
At the close of plaintiff's evidence, and also at the close of all the evidence, the defendant moved the court to direct a verdict in its favor on the grounds, among others, that the evidence was insufficient to sustain a verdict in favor of the plaintiff, and that the plaintiff was guilty of contributory negligence. This motion was denied, and the ruling of the court denying the motion was duly excepted to. It is contended by the appellant that the court erred in this ruling, and we are of the opinion that the appellant is right in its contention. It is disclosed by the record that the following facts were undisputed: That early in the evening of the 13th of February, 1903, one of defendant's locomotives with tender attached was backing in an eastwardly direction from Watertown to Goodwin for the purpose of pulling into Watertown a disabled passenger train, which was at the latter station; that at a short distance east of Watertown plaintiff's pony and mule were trespassing upon defendant's right of way at a distance of about 25 rods from and east of the nearest highway crossing; that they were struck by the locomotive, and died as a result of the injuries so received; and that no whistle was sounded or bell rung at a point 80 rods from or at any other point before reaching the highway crossing. After the preliminary evidence was introduced by the plaintiff as to the killing of the mule and pony, the presumption of negligence arising from such proof was clearly overcome by the evidence on the part of the defendant that its engine and roadbed were in good condition that the conductor, engineer, and fireman were fully competent; and that neither of said persons saw the animals which were struck and injured. The only evidence offered on the part of the plaintiff in rebuttal of defendant's evidence, tending to prove negligence on the part of the employés of the defendant company, was the failure of the defendant's employés to sound the whistle or ring the bell before reaching the highway crossing; that the engine was being run at a high rate of speed, and that it was light enough so that the conductor, engineer, or fireman could have seen the animals several hundred feet away. It is insisted by the respondent that the failure of the defendant's employés to sound the whistle and ring the bell, as provided by the Code, before reaching the highway crossing constituted such negligence as to authorize the jury to find a verdict in favor of the plaintiff, taken in connection with the high rate of speed at which the engine was being run, but this contention is untenable.
This court had occasion to consider this question in the case of Mankey v. Railroad Company, 14 S.D. 468, 85 N.W 1013, in which this court held that evidence of a failure to sound the whistle or ring the bell before reaching a highway crossing did not of itself constitute evidence sufficient to authorize a jury to find a verdict that the killing resulted from such failure, where the animal killed was trespassing upon defendant's...
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