Sioux Falls Traction Sys. v. Great N. Ry. Co.
| Decision Date | 16 May 1917 |
| Docket Number | No. 4078.,4078. |
| Citation | 39 S.D. 17,162 N.W. 740 |
| Parties | SIOUX FALLS TRACTION SYSTEM v. GREAT NORTHERN RY. CO. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Minnehaha County; Joseph W. Jones, Judge.
Action by the Sioux Falls Traction System against the Great Northern Railway Company. From a judgment for plaintiff and an order denying new trial, defendant appeals. Affirmed.Aikens & Judge, of Sioux Falls, for appellant.
Boyce, Warren & Fairbank, of Sioux Falls, for respondent.
A train belonging to defendant collided with and destroyed a car belonging to plaintiff while such car was standing at the junction of the lines of track belonging to these parties. Plaintiff recovered a judgment for the value of the car so destroyed. From such judgment and from an order denying a new trial this appeal was taken. In a general way the facts of this case are quite analogous to those in the case of Allison v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 158, N. W. 452, and much that was said in that case is applicable to the facts presented herein. We therefore deem it unnecessary to consider any assignments except those that present questions other than were presented by the record in that case.
[1] The accident out of which this action grew occurred about 10 o'clock at night. Respondent introduced the evidence of a witness to show that since the accident such witness was at appellant's track at a point some 600 feet from the point of the accident; that he was at said point in the nighttime and when a train belonging to appellant passed, going in the direction of the place of accident. This witness testified that, when the engine arrived at such point, the headlight shone in the direction of the point where this accident occurred. Appellant objected to the receipt of this evidence, alleging that no proper foundation was laid therefor in that it was not shown that the conditions were the same as those existing the night of the accident. But this evidence was admissible for and was received for the purpose of showing that the direction of appellant's track at this point, 600 feet from the point of accident, was such that when a train reached such point the light from the headlight would be thrown in the direction of the point of accident. It appeared that appellant's track curved at a distance of some 1,000 feet from the point of accident, and it became material to show at what distance from the point of accident the curve ended and the track commenced to bear straight towards the point of accident. This evidence was clearly admissible.
[2][3] Respondent offered the testimony of an old locomotive engineer to show the distance within which appellant's train could have been stopped: First, when going at the rate of 6 miles an hour; second, when going at the rate of 25 miles an hour. Appellant assigns as error the receipt of the evidence in relation to the distance that would be required to stop the train if going at the rate of 6 miles an hour, contending that there was no claim or pretense that this train was going at that rate of speed, and therefore nothing upon which to base the admission of this evidence. It is true that the evidence showed the train moving at a much higher rate of speed but it was proven that a local ordinance forbade the running of the train at a greater speed than 6 miles per hour. The jury was bound to presume, until the contrary was shown, that the running of...
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