Saccamonno v. Great Northern Ry. Co.

• Citation: 30 Idaho 513,166 P. 267
• Parties: JOSEPH SACCAMONNO, Respondent, v. GREAT NORTHERN RAILWAY COMPANY, a Corporation, Appellant
• Decision Date: 27 June 1917
• Court: Idaho Supreme Court

166 P. 267

30 Idaho 513

JOSEPH SACCAMONNO, Respondent, v. GREAT NORTHERN RAILWAY COMPANY, a Corporation, Appellant

Supreme Court of Idaho

June 27, 1917

DUTY OF RAILROADS TO MAINTAIN GATES AND FENCES-STATUTORY CONSTRUCTION-WISDOM OF LEGISLATIVE ACT NOT MATTER FOR JUDICIAL DETERMINATION - INSTRUCTIONS - GIVING OF INSTRUCTIONS TOO FAVORABLE TO APPELLANT NOT REVERSIBLE ERROR-JURY PRESUMED To FOLLOW INSTRUCTIONS-CONFLICT IN EVIDENCE.

1. The gates at private railroad crossings provided for in section 2815, Rev. Codes, as amended (Sess. Laws 1911, p. 706), are a part of the fence which it is made the duty of the railroad company to maintain, and it is equally its duty under said statute to keep such gates securely closed, so as to afford the same protection from stock getting on its right of way at such places as at other points.

2. The fact that the legislature in amending section 2815, Rev Codes, omitted the latter portion of said section, as follows: "No recovery can be had on account of stock injured or killed which come upon said highway [right of way] by reason of failure to keep such gates closed," indicates the legislative intent to require railroad companies to maintain gates at private crossings and keep them closed, in order to relieve themselves from liability under said section as amended, in so far as third parties and the public are concerned.

3. The wisdom or policy of a legislative act which imposes upon railroad companies a duty to keep gates closed for private crossings of their tracks and makes them liable for failure without knowl- edge to keep such gates closed is not a matter for judicial consideration, nor will the court interfere with the legislative policy of imposing liability upon railroad companies for failure to keep their rights of way fully protected, where under the statute it is their duty to fence their tracks and keep their gates closed.

4. Where a jury might have arrived at their verdict upon different theories of the case, one of which would involve disregard of the instructions of the court, and the other a due regard for such instructions, it must be presumed that the jury followed the court's instructions in arriving at their verdict.

5. Where there is a substantial conflict in the evidence the verdict of the jury will not be disturbed.

6. Where certain instructions of the trial court are erroneous but are in fact more favorable to appellant than a correct statement of the law would justify, appellant cannot be said to have been prejudiced by the giving of such instructions and is not in a position to complain of the verdict arrived at, on the ground that such instructions were given.

[As to the failure of railroad company to comply with statute in fencing as negligence, see note in Ann.Cas. 1912D, 1106]

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. John M. Flynn, Judge.

Action against the Great Northern Railway Company to recover damages for the killing of plaintiff's horse. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Charles S. Albert, Thos. Balmer and H. H. Taylor, for Appellant.

There was no evidence to show that the plaintiff's horse got upon the right of way of the defendant at a point where it was required to fence, and the evidence does show that it got in through a gate, which it was not required to keep closed.

Under these facts judgment should be ordered for the defendant. (Reid v. San Pedro L. A. & S. L. R. Co., 39 Utah 617, 118 P. 1009; Missouri K. & T. Ry. Co. v. Johnson (Tex. Civ.), 39 S.W. 323; Rhines v. Chicago & N.W. Ry. Co., 75 Iowa 597, 39 N.W. 912; Louisville N. A. & C. Ry. Co. v. Goodbar, 102 Ind. 596, 2 N.E. 337, 3 N.E. 162; Louisville E. & St. Louis Ry. Co. v. Thomas, 106 Ind. 10, 5 N.E. 198; Bremmer v. Green Bay S. P. & N. Ry. Co., 61 Wis. 114, 20 N.W. 687; Johnson v. Chicago, R. I. & P. Ry. Co., 55 Iowa 707, 8 N.W. 664; Great Western Ry. Co. v. Hanks, 36 Ill. 281; Sowders v. St. Louis & S. F. R. Co., 127 Mo.App. 119, 104 S.W. 1122; Creson v. Missouri K. & T. Ry. Co., 152 Mo.App. 197, 133 S.W. 57; Lynn v. St. Louis, I. M. & S. Ry. Co., 164 Mo.App. 445, 146 S.W. 451; Kimball v. St. Louis & S. F. Ry. Co., 99 Mo.App. 335, 73 S.W. 224.)

Under the circumstances in this case, there is no liability on the part of the defendant, where it appears that when the defendant's employees left the gate at night it was closed so it could not be opened by an animal. (Swanson v. Chicago M. & St. P. Ry. Co., 79 Minn. 398, 82 N.W. 670, 49 L. R. A. 625; Mooers v. Northern P. Ry. Co., 80 Minn. 24, 82 N.W. 1085; Atchison etc. Ry. Co. v. Kavanaugh, 163 Mo. 54, 63 S.W. 374.)

Where a private crossing communicating with gates in the right of way fence, through an inclosure, was constructed by the railway company, it was not the duty of such company to see that such gates were kept closed. (San Antonio etc. Ry. Co. v. Robinson, 17 Tex. Civ. 400, 43 S.W. 76; Whaley v. Erie Ry. Co., 181 N.Y. 448, 74 N.E. 417.)

O. J. Bandelin and C. L. Heitman, for Respondent.

The statutory provision in case proper fences have been properly maintained and erected, that proof of the killing of the horse shall be prima facie evidence of negligence or wilfulness, means that all that is incumbent upon the part of the plaintiff in such a case to establish, is the killing of a horse upon the railroad company's right of way by one of its trains at a place where there is a duty to fence. It will not apply where the animal was killed upon a public crossing. (Yates v. Camas Prairie Railroad Co., 22 Idaho 802, 128 P. 545.)

Even had this statute not been enacted, the circumstances of the killing of this horse threw upon the defendant the burden of showing that it had not been negligent. (Kelly v. Oregon Short Line etc. R. Co., 4 Idaho 190, 38 P. 404.)

Defendant is liable even though the horse may have come through the gate. (Missouri etc. Ry. Co. v. Bellows (Tex. Civ.), 39 S.W. 1000; Duncan v. St. Louis I. M. & S. Ry. Co., 91 Mo. 67, 3 S.W. 835; Atkinson v. Chicago & N.W. Ry. Co., 119 Wis. 176, 96 N.W. 529.)

The presumption is that the horse came on track where killed. (Patrie v. Oregon Short Line R. Co., 6 Idaho 448, 56 P. 82.)

BUDGE, C. J. Morgan and Rice, JJ., concur.

OPINION

BUDGE, C. J.

Respondent brought suit against appellant, a railroad corporation, alleging in substance that it had failed to construct and maintain a lawful fence along its right of way, by reason of which negligence and failure respondent's horse entered upon appellant's right of way, about two miles east of Priest River, Idaho, on the 22d day of November, 1914, and was struck and killed by one of appellant's trains.

Appellant answered, denying its failure to construct and maintain such lawful fence, denying any negligence on its part in the respect complained of, and denying that appellant's train or locomotive engine killed the horse.

The evidence on behalf of respondent showed that he turned his horse out in his pasture or field on Saturday; that along that part of the right of way in question a portion of the fence was up and portions of the fence were down, having been destroyed by fire a few months prior thereto; that on Sunday morning following the horse was found dead on the right of way, and blood and horsehair were found along the track where the animal had probably been struck. The evidence does not disclose whether the fence, along the right of way immediately at the place where the horse was killed, was up or down.

The evidence on the part of appellant was to the effect that the section foreman found the horse dead upon the right of way on Monday morning; that the horse was shod in front and not shod behind; that in an endeavor to ascertain where the horse entered upon the right of way the section foreman, in company with others, tracked the horse back along the right of way to a gate in the fence, at the private crossing of a third party, where the tracks showed that the horse had entered and gone on down the right of way to the place where it was killed; that the section foreman had passed along by the gate Saturday night, at which time the gate was closed and in good condition, and was such a gate that it could not be opened without human agency.

The court instructed the jury that if they found that the horse entered the right of way through the gate the verdict must be for the appellant. The jury returned a verdict for respondent for $ 150 and $ 50 attorneys' fees, and judgment was entered thereon for respondent. This appeal is from the judgment.

Appellant relies upon seven assignments of error. It will be necessary in this opinion to discuss only those points raised by the 5th and 7th assignments of error, which are in substance that the court erred in denying appellant's motion to direct a verdict in its favor, and in entering judgment for respondent.

It is apparent from the verdict which the jury returned, either that they disregarded the instructions of the court or that they found that the horse entered upon the right of way at a point where the fence was down and where it was the duty of appellant to maintain a lawful fence. The presumption is that the jury followed the court's instructions.

An examination of the record discloses the fact that there is some evidence tending to support the finding of the jury that the horse went upon the right of way at some point where the appellant was required to...