Omaha & Republican Valley Railway Co. v. Wright
| Decision Date | 07 April 1896 |
| Docket Number | 6480 |
| Citation | 66 N.W. 842,47 Neb. 886 |
| Parties | OMAHA & REPUBLICAN VALLEY RAILWAY COMPANY v. GEORGE M. WRIGHT ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Saunders county. Tried below before WHEELER, J.
REVERSED AND REMANDED.
J. M Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error:
Railroad companies are under no obligations to stop their trains, or to slacken the speed, in order to deliver trespassing animals from peril. It was not the duty of the engineer to keep a lookout for cattle. (Smith v. Chicago, R. I. & P. R Co., 34 Iowa 509; Meyer v. Midland P. R. Co., 2 Neb. 319; Kilpatrick v. Richardson, 37 Neb. 731; Union P. R. Co. v. Mertes, 35 Neb. 204; Illinois C. R. Co. v. Noble, 32 N.E. 684 [Ill.]; Philadelphia & R. R. Co. v. Hummell, 44 Pa. 375; Toledo, W. & W R. Co. v. Barlow, 71 Ill. 640; Illinois C. R. Co. v. Godfrey, 71 Ill. 500; Kansas City, L. & S. K. R. Co. v. Bolson, 14 P. 5 [Kan.].)
R. S. Norval, contra:
It is the duty of an engineer to keep a proper lookout for cattle on the track, and the company is liable for damages where stock is killed through a failure to perform that duty. (Toledo, P. & W. R. Co. v. Bray, 57 Ill. 514; Chicago & A. R. Co. v. Kellam, 92 Ill. 245; Baker v. Chicago, B. & Q. R. Co., 73 Iowa 389; Missouri P. R. Co. v. Vandeventer, 28 Neb. 117; Chicago, B. & Q. R. Co. v. Grablin, 38 Neb. 101; Virginia M. R. Co. v. White, 34 Am. & Eng. R. Cases [Va.] 22; Guenther v. St. Louis, I. M. & S. R. Co., 34 Am. & Eng. R. Cases [Mo.] 47; Reilly v. Hannibal & S. J. R. Co., 34 Am. & Eng. R. Cases [Mo.] 81.)
The facts are stated by the commissioner.
The defendants in error brought this action against the railway company to recover damages on account of cattle belonging to them, killed and injured by a train of the railway company. The petition, while it is in one count, really alleges, or attempts to allege, three grounds of recovery: First, that a gate on one of the fences along the right of way was insufficient and negligently permitted to be out of repair and that by reason of those facts the cattle got upon the right of way; second, that after they got upon the right of way, their injury resulted from the careless operation of the train; third, that the railway company, after the stock was injured, took possession of the dead bodies and the injured cattle and refused to permit the owner to retake them,--that is, a charge of conversion. The answer of the railway company was a series of denials, some of them negatives pregnant, but the whole effect practically that of a general denial, coupled with some affirmative allegations in regard to the security of the gate and negligence on the part of the plaintiff. From a verdict and judgment in favor of the plaintiff for $ 569 the defendant prosecutes error.
Many assignments of error relate to rulings on the admission of evidence and to the refusal of instructions with regard to the character of the gate and the duty and liability of the railway company concerning the gate and flowing from its condition. The railway company is not, however, in any position to complain of these rulings. The statutes on the subject are found in Compiled Statutes, chapter 72, article 1, sections 1 and 2. The court, after stating the issues, stated to the jury the substance of the statute, and then charged the jury that the duty was imposed by statute of erecting and maintaining gates, opens, or bars at private crossings, only with regard to adjoining proprietors, and that if the cattle were upon the premises of an adjoining proprietor, without his consent, and escaped therefrom upon the right of way without negligence of the defendant, and were killed without its negligence, there could be no recovery. The evidence was uncontradicted that the cattle of the plaintiffs, about 340 in number, were in a corral north of the railway and west of the land of one Wallen; that they escaped from the corral upon the land of Wallen, and thence came through the gate in question upon the right of way. There was no evidence of any act of the railway company leading to their escape. Therefore the effect of this instruction was to absolutely prevent a recovery on the ground of a violation of the fencing law. Whether or not the court correctly interpreted the statute, we need not and cannot here consider, because the construction given it was so favorable to the railway company that under the evidence all question of liability thereunder was eliminated from the case; nor need we extensively consider any questions raised by the pleadings and proof as to the defendant's taking possession of the dead and injured cattle and converting them to its own use. On the trial of the case this issue was evidently a minor consideration. We think there was error on another feature of the case, and the evidence not being of such a character that on this issue it was the only one which could properly be rendered, if not in direction, at least in amount, we pass over such assignments as relate exclusively to it.
It is quite clear under the instructions of the court that the verdict turned upon the negligence of the railway company in operating its train, whereby the cattle were killed and injured after they came upon the right of way. On this branch of the case the allegations of the petition are that the defendant, "by its agents and employes, while running at a high rate of speed,...
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