Rio Grande Western Ry. Co. v. Boyd

• Decision Date: 06 July 1908
• Citation: 96 P. 781,44 Colo. 119
• Parties: RIO GRANDE WESTERN RY. CO. v. BOYD.
• Court: Colorado Supreme Court

96 P. 781

44 Colo. 119

RIO GRANDE WESTERN RY. CO. v. BOYD.

Supreme Court of Colorado

July 6, 1908

Appeal from Mesa County Court; Walter S. Sullivan, Judge.

Action by William Boyd against the Rio Grande Western Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Sutherland and Van Cott & Allison (Wm. N. Vaile, of counsel), for appellant.

Henry H. Rhone, for appellee.

GABBERT J.

This is an appeal by the Rio Grande Western Railway Company from a judgment in favor of appellee for the value of a cow belonging to him which was killed by the railroad company. The basis of the claim of appellee is that the cow was killed by the negligence of the employés of the company.

Section 5 of the stock act (Sess. Laws 1902, p. 25, c. 1) provides 'The killing or injury of any animal or animals by a railway company or corporation shall be prima facie evidence of the negligence of said railway company. * * *' The railroad track at the point where the cow was struck runs nearly east and west. The plaintiff lives about 200 yards north of the track. In front of his house, running north and south, is a wagon road, which crosses the railroad track approximately at right angles. It was on this crossing where the cow was struck by a train approaching from the west. There is no question but that the cow was killed by being struck by a locomotive operated by the defendant company, but counsel for the railroad company contend that the evidence is insufficient to support the verdict and judgment rendered thereon, in that the prima facie case made by plaintiff by showing that the cow was struck by the engine was overcome by evidence which established that the defendant company was not guilty of negligence. It is true that the testimony of the engineer and fireman operating the train is to the effect that they did not see the cow until the stepped upon the crossing; that at this time the engine was not more than fifty feet from her that the train was running at the rate of about fifty miles an hour on a slightly downgrade, and that it was impossible to have stopped the train under about a quarter of a mile; and that, on account of obstructions along the highway over which the cow traveled to reach the crossing, it was not possible for them to see her until she stepped upon the track. But this testimony was contradicted by testimony on behalf of the plaintiff, which was to the effect that an animal the size of a cow could have been seen by the engineer and fireman within half or three-quarters of a mile of the crossing at any point on the wagon road between four hundred feet north of the crossing, and the crossing. In this state of the evidence it was for the jury to determine whether or not the fireman and engineer had exercised the necessary degree of care to ascertain if an animal were approaching the crossing over which the locomotive would shortly pass. Had there been no testimony offered on behalf of the plaintiff except that which established that the cow had been struck by the engine, then the testimony on behalf of the defendant company would have been sufficient to have overcome the prima facie case made by the plaintiff by virtue of the provisions of the statute quoted; but, as we have pointed out, the testimony introduced by the defendant to show that the killing of the cow was not caused by the negligence of the company was contradicted by direct and positive evidence that its employés were negligent; and, as this conflict was resolved by the jury in favor of the plaintiff, it cannot be disturbed on review.

Counsel have presented an interesting argument on the subject 'Burden of Proof,' which, however, we do not think it is necessary to consider further than to say that the burden of establishing negligence of the defendant was upon the plaintiff, and there being a conflict in the testimony tending, on the part of the plaintiff, to directly prove acts which would constitute negligence of the defendant at common law, and on behalf of the defendant that its employés were not negligent, it was for the jury to determine which witnesses testifying on the subject were telling the truth and render a verdict accordingly. It appears that plaintiff did not rely upon the statute alone in making his case in chief, but, in addition to proving that the cow was killed by being struck by the engine, introduced evidence to affirmatively...