Reinke v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.
| Decision Date | 06 April 1912 |
| Docket Number | 81912 |
| Citation | 135 N.W. 779,23 N.D. 182 |
| Court | North Dakota Supreme Court |
Appeal by defendant from a judgment of the District Court for Richland County, Allen, J., in plaintiff's favor in an action brought to recover for injuries to plaintiff's horses, alleged to have been caused by defendant's negligence.
Reversed.
Judgment reversed and a new trial granted.
J. A Dwyer and Wolfe & Schneller (John L. Erdall of counsel), for appellant.
Railway owes no duty to the animal or its owner to keep a lookout. Bostwick v. Minneapolis & P. R. Co. 2 N.D. 440, 51 N.W. 781; Hodgins v. Minneapolis, St. P. & S. Ste. M. R Co. 3 N.D. 382, 56 N.W. 139; Corbett v. Great Northern R. Co. 19 N.D. 450, 125 N.W. 1054.
Dan R Jones and Purcell & Divet, for respondent.
Instructions as to care only being requisite after discovery of the stock, unnecessary. Anderson v. Minneapolis, St. P. & S. Ste. M. R. Co. 18 N.D. 462, 123 N.W. 281.
Records similar to the self-serving record made by the defendant are to be taken by the jury for what they appear to be worth. Kitman v. Chicago, B. & Q. R. Co. 113 Minn. 350, 129 N.W. 844.
This action was brought to recover for two horses alleged to have been killed, and for harnesses injured, by the negligent management and running of a locomotive and cars belonging to the appellant, on or about the 12th day of January, 1907, while on section 34, in township 13 North, of range 50 West, in Richland county, 3 or 4 miles northwest of the village of Hankinson. There is no dispute about the killing. The record shows that the horses must have been killed between 10 or 11 o'clock in the evening of January 11th, and about 2 o'clock in the afternoon of January 12th. They were not killed on a public crossing. The plaintiff recovered a verdict and judgment for the value of the horses and injury to their harnesses. Numerous errors are assigned on the admission and rejection of evidence, and on instructions to the jury.
For a proper understanding of the legal questions involved, we may say that the record discloses that the weather on the night of January 11, 1907, was cold; a strong wind was blowing, and it was snowing some or all of that night; and that trains running on defendant's line were constantly striking snowdrifts; that frost gathered on the windows of the engine cab, so the engineer could not see the track through the window any of the time; and that if he caught sight of the track at all it was by opening and leaning out of the cab window, and that at such times snow from the snowplow and steam from the locomotive filled the air and the engineer's eyes, and interfered seriously, if it did not wholly prevent his obtaining a view of the track ahead.
The engineers of two trains passing over the road, between midnight and 5 A. M. January 12th, testified. One of them, Welliver, testified as to the conditions, and that he did not know whether he struck any horses in that vicinity or not, but did not think he did so, and that he saw none on the track; and that he could not distinguish between striking horses and snowdrifts when he could not see. The second engineer, Freeborn by name, did not testify positively that he saw no horses, as he seems not to have been inquired of on that subject, but he likewise testifies as to the conditions and that it was impossible to get, during much of the time, a view of the track ahead, and that he did not know of striking any horses, but did remember striking snowbanks, and that he kept as good a lookout as could be kept under the conditions, which he fully described.
In addition to what we have said, he testified that the windows got icy and snowed up, and it was too stormy to hold his head out of the cab window; that snow would blow in his eyes and that the snow was mixed with steam from the engine, and altogether they prevented him keeping a watch ahead.
Some testimony was received tending to show the passage of two or three other trains over the track where the horses were killed, during the time in question, but none was offered concerning their operation. It is strenuously contended by appellant that there was no evidence warranting submitting the case to a jury. As to the trains on which Welliver and Freeborn were the engineers, we agree with the appellant for reasons hereafter stated. The evidence was very slight and unsatisfactory and entitled to but slight weight regarding other trains. We think there was sufficient, as it stood at the close of the trial, to justify the submission of the case as to such other train, if any, to the jury, under proper instructions. We cannot say how this might have been, had evidence, to which we shall refer later, not been excluded.
A train register, which was kept at Hankinson, a junction point, and testimony explaining it and the custom regarding the registry of trains arriving at, starting from, or going through Hankinson, were received in evidence. It appears to indicate that a train, known as No. 20, arrived from the west at 7 o'clock A. M., on the 12th. Another train appears, from such register, to have arrived from the west at 11:45 A. M., on the 12th.
The plaintiff relied solely on the statutory presumption of negligence, no proof being offered of actual negligence in the running of the train which killed plaintiff's horses, nor was it proved which of the trains mentioned did so. Section 4297, Rev. Code 1905, makes the killing or damaging of any horses or other stock by cars or locomotive along the railway prima facie evidence of carelessness and negligence on the part of the corporation. The purpose of this provision is explained in Corbett v. Great Northern R. Co. 19 N.D. 450, 125 N.W. 1054; and it is there held that when the plaintiff relies solely upon the prima facie case, made under the statute, less is required to rebut the prima facie case than would be necessary to rebut his evidence if the plaintiff relied upon actual proof of negligence.
We will now consider the proof regarding each of the trains shown to have passed over the track between the hours named, and those which may have passed over it. As to train No. 20, from the condition of the record relating thereto, as it stands, we think the jury might have inferred that such a train arrived in Hankinson at 7 o'clock on the morning of the 12th. The witness who testified in explanation of the entries on the register explained that the record "evidently meant that train No. 20 was made up at Hankinson, and did not go further west." On motion his answer was stricken out on the ground that "it is not responsive to the question, and a conclusion of the witness from the entries before him; not the best evidence." The witness was used to explain the entries on the train register, and this was his interpretation of such entry after a foundation had been laid. His whole testimony was composed of opinions as to the meaning of the entries on the register. The explanation of No. 20 may have been entitled to little weight in the minds of the jury, but we think they were entitled to consider it for what it was worth, and the court erred in striking out such explanation, and but for this error further explanation might have followed.
As to the train registered as arriving from the west at 11:45 A. M., on the 12th, the testimony of the witness, Loomis, who explained the register, amounted to proof that the conductor and engineer of that train ran on another line of defendant's road, out of Hankinson, regularly during January, 1907, and that if they were running on the line northwest from Hankinson on the day in question, they were outside their regular employment. He knew this because he was employed on the other line during that month and met them on it. We think, under the circumstances, that this evidence, had it been received, was sufficient to cast the burden upon the plaintiff, if he contended that the 11:45 train occasioned his loss, to submit further proof of that fact; and that the striking out of the testimony of Loomis on this question was error.
One Fisher testified that at the time of the accident he was in the employ of the defendant company, and on a certain day--he could not give the day of the week or month--he went from Hankinson to Enderlin to dig out a train, and that he returned in the nighttime, on the passenger train, and, as near as he could remember, arrived at Hankinson about 11:30 that night; and that he saw the dead horses by the side of the track the next day. His testimony in chief was in answer to a question as to what time he got into Hankinson. In answer to another question as to when...
To continue reading
Request your trial