Snook v. Clark

• Decision Date: 25 October 1897
• Citation: 50 P. 718,20 Mont. 230
• Parties: SNOOK v. CLARK et al.
• Court: Montana Supreme Court

50 P. 718

20 Mont. 230

SNOOK v. CLARK et al.

Supreme Court of Montana

October 25, 1897

Appeal from district court, Beaverhead county; Theodore Brantley Judge.

Action by J. W. Snook against S. H. H. Clark and others, as receivers of the Oregon Short-Line & Utah Northern Railway Company, and the Oregon Short-Line & Utah Northern Railway Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Affirmed.

This is an action brought by plaintiff to recover damages on account of the killing of eight head of cattle by a train of cars operated and run on the railroad, of which the defendants are receivers, on the 24th day of January, 1895. The record shows that the train which killed the cattle was a special train and going at the rate of 35 miles an hour; that the cattle were killed in a cãon known as "Ryan's Cãon," in Beaverhead county, at a place particularly known as "The Point of Rocks." At this point the cãon is narrow, and the railroad and county road run in very close proximity to each other. The county road is the only traveled one passing through the cãon, and has been used as a county road for a number of years. At the point where the cattle were killed the railroad had not been fenced by the railroad company, nor was there any cattle guard or any other device used to keep stock off the road; and the plaintiff claims that the railroad company was guilty of negligence in not fencing its road at the point where the cattle were killed. The case was tried to a jury, and a verdict rendered in favor of plaintiff for the sum of $528, for which sum judgment was duly entered. The defendants appeal from the judgment and an order denying a motion for a new trial.

Sharpstein & Burleigh, for appellants.

Edward Norris and Smith & Wood, for respondent.

PEMBERTON C.J. (after stating the facts).

The appellants contend that the evidence is in sufficient to justify the verdict. Under this assignment, counsel for appellants argue that it was impracticable to maintain a fence or cattle guard at the point where the cattle got on the track of the railroad. It is contended that a fence or cattle guard at this point would materially obstruct the county highway. The court instructed the jury, in effect that, if a fence or cattle guard would obstruct the highway the railroad company was not obliged to maintain a fence or cattle guard at the point in question. We are not certain that the court did not go too far in favor of appellants in this respect, but, if so, the appellants cannot complain. But this matter as to the practicability of a fence or cattle guard was a question of fact, and was submitted to the jury under instructions very favorable to appellants. The jury found on this issue in favor of the plaintiff, and we think the evidence amply supports the finding.

Counsel also contend that the cattle were killed as a result of the contributory negligence of the plaintiff in driving them into the cañon without taking proper steps to avoid coming in collision with the train, that after he knew the train was coming he did nothing...