Sinkling v. Ill. Cent. R. Co.

• Decision Date: 05 April 1898
• Citation: 10 S.D. 560,74 N.W. 1029
• Parties: SINKLING v. ILLINOIS CENT. R. CO.
• Court: South Dakota Supreme Court

10 S.D. 560

74 N.W. 1029

SINKLING

v.ILLINOIS CENT. R. CO.

Supreme Court of South Dakota.

April 5, 1898.

Appeal from Minnehaha county court.

Action by Carrie Sinkling against the Illinois Central Railroad Company. Judgment was rendered in a justice's court for plaintiff, and defendant appealed to the county court, where judgment was rendered for plaintiff, and defendant appeals. Reversed.

Haney, J., concurring in result.Aikens, Bailey & Voorhees, for appellant. Joe Kirby and F. L. Rowland, for respondent.

FULLER, J.

This action, to recover the value of a horse owned by plaintiff's assignor, and which was killed April 5, 1896, on the defendant's right of way by a passenger train, was instituted and tried in justice court, resulting in a judgment for plaintiff, from which the defendant appealed to the county court, where judgment for plaintiff was again obtained, and the defendant appeals to this court. A preliminary motion is interposed to dismiss the appeal both from the judgment and the order overruling the application for a new trial; but the only point possessing any merit or worthy of consideration is that the order, made after the entry of judgment, denying a new trial, was not entered before the appeal therefrom was attempted. It appearing affirmatively from the record before us that such is the case, we conclude, upon the authority of State v. Lamm (S. D.) 69 N. W. 592, that no appeal from said order has been legally taken, and that no question as to the sufficiency of the evidence to justify the verdict is before us for review. Plow Co. v. Bellon, 4 S. D. 384, 57 N. W. 17;Gade v. Collins, 8 S. D. 322, 66 N. W. 466.

At the trial on appeal to the county court, appellant objected for the first time to the introduction of any evidence, for the reason that the complaint does not state facts sufficient to constitute a cause of action, and the overruling of such objection is urged as reversible error. No claim is made that the summons does not contain, as provided by subdivision 2 of section 6053 of the Compiled Laws, “a sufficient statement of the cause of action, in general terms to apprise the defendant of the nature of the claim against him”; and we find that part of the oral complaint entered in the docket of the justice of the peace, as the substance thereof, sufficient, when construed with the written answer, “to enable a person of common understanding to know what was intended,” thus substantially meeting the requirements of section 6058. Kelsey v. Railway Co., 1 S. D. 80, 45 N. W. 204.

Both respondent's premises and appellant's right of way were uninclosed, and, though not at a crossing, no claim is made that appellant was required to fence at the point where the horse, while trespassing, was struck and killed by a passing engine; thus constituting prima facie evidence of negligence on the part of the railroad company. Comp. Laws, §§ 5501, 5569. Although the statutory imputation of negligence was clearly overcome by the uncontroverted testimony of appellant's employes, showing that the killing of the horse was unavoidable in the skillful exercise of due care in the operation of a properly equipped passenger train, running at a proper rate of speed, and that the motion to direct a verdict for defendant ought to have been sustained, we will proceed to examine the assignment of error based upon the refusal of the court to instruct the jury upon the question of contributory negligence. Hebron v. Railroad Co., 4 S. D. 538, 57 N. W. 494;Harrison v. Railway Co., 6 S. D. 100, 60 N. W. 405.

Hans Sinkling, the owner of the horse, and assignor of the claim for damages, testified on behalf of respondent as follows: “My barn was pretty nearly three hundred feet north from the railroad track. The well where I got water stands between the barn and the house. The house stands about 250 feet from the railroad track. I took the horses out of the barn, and gave them water. It was about half an hour before the horse was killed. I gave them water, and the horses ran up there, I suppose. I didn't see that. I gave them water, and left them out. I let both horses run loose. I went into the house. The house is pretty nearly fifty feet from the barn, and is closer to the railroad. I didn't see anybody around the barn after I went away. There was nobody there watching the horses. I sometimes let the horses run loose there before. They had halters on. I tied their halters up around their necks. I left them loose, gave them water, and went into the house. There is no road crossing the track at that place. The track is higher than my house; about ten feet, I believe. There is no fence around my place, and no fence on the railroad track. I have lived there nine years. The railroad track was just building the winter I came there. Since then there has been a passenger train going down the road every day about the same time in the afternoon. I knew that there were trains going by there pretty nearly every day. The train that killed the horse was going east.” During all these years the witness had continuously resided in unobstructed proximity to appellant's right of way, over which this fast-flying passenger train-a danger signal in itself-had run each afternoon just a few moments later than the time when he turned his horse loose upon the premises, within a few feet of the railroad, and went into his house, leaving a dumb animal to trespass upon the track, and endanger human life, with the safety of which the engineer, measurably, stood charged.

Viewed in the light most favorable to respondent, fair-minded and reasonably intelligent men might draw different conclusions from the evidence as to contributory negligence; and the question ought to have been submitted to the jury, under proper instruction. Hutchinson v. Railway Co., 9 S. D. 5, 67 N. W. 853;Hodgins v. Railroad Co., 3 N. D. 382,...