Mooers v. N. Pac. R. Co.

• Decision Date: 23 June 1897
• Citation: 69 Minn. 90,71 N.W. 905
• Parties: MOOERS v NORTHERN PAC. R. CO.
• Court: Minnesota Supreme Court

69 Minn. 90

71 N.W. 905

MOOERSvNORTHERN PAC. R. CO.

Supreme Court of Minnesota.

June 23, 1897.

(Syllabus by the Court.)

1. Persons in charge of a locomotive in motion are not bound to keep a lookout for animals trespassing upon the track, nor to presume that they will be there, but having notice of their presence, and that they are liable to injury, are bound to use reasonable care, at least, to avert such injury.

2. The circumstances in this case, as shown on the trial, would have warranted the jury in finding that the defendant's employés, running one of its locomotives, saw certain horses, which were run over and killed while on the track, in time to have avoided the killing, although there was no positive evidence that the horses were discovered until they were struck, and no evidence as to the time or distance within which the locomotive could have been stopped.

3. Held, on the evidence, that the question whether the persons in charge of the locomotive neglected to use reasonable care after discovering the horses on the track was for the jury.

Appeal from district court, Morrison county; D. B. Searle, Judge.

Action by D. S. Mooers against the Northern Pacific Railroad Company. From an order directing a verdict for defendant, plaintiff appeals. Reversed.

Lindbergh, Blanchard & Lindbergh, for appellant.

Chauncey L. Baxter, J. H. Mitchell, Jr., and L. T. Chamberlain, for respondent.

COLLINS, J.

Action to recover the value of four horses killed by one of defendant's passenger trains, in which the court below directed a verdict for defendant when the parties closed the evidence. At the argument in this court, counsel for plaintiff practically waived the question of defendant's negligence in failing to keep closed a gate in the fence along its right of way, through which open gateway it appeared that the horses went upon the track, and rested his claim for a reversal upon the ground that there was evidence which would have supported a finding that the trainmen failed to use reasonable care to avoid killing the horses after they were discovered upon the track ahead of the train. We think there was, and that a new trial must be had. The defendant offered no testimony, but that of the plaintiff tended to show that he was a farmer residing a short distance from defendant's line of road; that, without any fault on his part, his horses escaped from his own premises about 9 o'clock p. m., passed across the farm of a neighbor, and thence through the gateway before mentioned, onto the right of way. It was a bright moonlight night, and the horses could easily have been seen for more than half a mile either way. The track was upon an embankment, and practically straight in the direction from which the train came. The four horses killed, and others, wandered along the track in that direction for about one mile, and, on the approach of the train, turned...