Snyder v. N. Pac. Ry. Co.

• Decision Date: 01 May 1939
• Docket Number: No. 6565.,6565.
• Citation: 69 N.D. 266,285 N.W. 450
• Parties: SNYDER v. NORTHERN PAC. RY. CO.
• Court: North Dakota Supreme Court

69 N.D. 266

285 N.W. 450

SNYDER

v.NORTHERN PAC. RY. CO.

No. 6565.

Supreme Court of North Dakota.

April 19, 1939.

Rehearing Denied May 1, 1939.

Syllabus by the Court.

1. Section 4644 of the Compiled Laws “makes the killing of animals by a railway company presumptive evidence of negligence; but when, as in this case, the facts in regard to the killing are all put in evidence, the presumption of the statute does not apply. The proved facts clear away and supersede all presumptions.” Stoeber v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Co., 40 N.D. 121, 168 N.W. 562, followed.

2. There being no proof whatever of negligence on the part of the defendant in the killing of livestock on its right of way, a verdict against the defendant for damages because of the loss of such livestock can not be sustained.

3. The defendant having made a proper motion for judgment notwithstanding the verdict, such motion should have been granted because of the total lack of evidence showing negligence on the part of the defendant.

Appeal from District Court, Burleigh County; R. G. McFarland, Judge.

Action by George Snyder against the Northern Pacific Railway Company to recover for the destruction of a mare which was struck by a locomotive of the defendant. From a judgment in favor of the plaintiff, the defendant appeals.

Judgment reversed and case remanded, with directions to enter judgment for the defendant.

Conmy & Conmy, of Fargo, and Zuger & Zuger, of Bismarck, for appellant.

Charles L. Crum, of Bismarck, for respondent.

BURR, Judge.

The plaintiff sues to recover for the destruction of livestock, claiming that on August 21, 1936, one of his mares “undertook to cross the defendant's railroad on the section line between sections seven and eight, in township One Hundred thirty-eight, North of Range Seventy-nine, * *. That while said section line is a public highway the defendant maintained a gate along and across said highway immediately north of its tracks and said defendant was careless and negligent in permitting the gate across said highway to be open, so as to permit livestock to travel on said highway across the defendant's railroad”; that the defendant so carelessly and negligently “managed one of its locomotives and cars that the same ran across and over * * *” the mare, killing her to plaintiff's damage in the sum of five hundred dollars.

The defendant denies negligence on its part and alleges “that the destruction of said stock was occasioned and caused by plaintiff's own negligence, and plaintiff's own negligence contributed thereto.”

The defendant demanded a bill of particulars with reference to the alleged negligence of the defendant, and in the bill furnished plaintiff specified:

“1. The defendant was negligent in running and operating its locomotive and cars at an excessive rate of speed.

2. Negligence of the defendant in failing to stop its locomotive and cars in time to prevent the destruction of said mare and foal.

3. Negligence of the defendant in permitting the gate in the defendant's highway fence immediately north of the place where said mare and foal were killed by the defendant's engine, to be open.”

At the close of plaintiff's case defendant moved to dismiss the action on the ground that the plaintiff had failed to make out a prima facie case and also asked the court to direct the jury to return a verdict in favor of the defendant on the ground that the plaintiff has failed to prove any negligence on the part of the defendant. This motion was overruled and at the close of the entire case was renewed and again overruled.

The jury returned a verdict in favor of the plaintiff and defendant moved for judgment notwithstanding the verdict, which was denied. Judgment was entered in accordance with the verdict and the defendant appeals, assigning as error that the court erred in overruling defendant's objection to certain questions, erred in denying defendant's motion for dismissal and motion for directed verdict, erred in denying defendant's motion for judgment notwithstanding the verdict, and erred in its instructions to the jury in a matter set forth in the specifications. However, the case is determined on the sufficiency of the evidence and the statute hereinafter cited.

The specification of insufficiency of the evidence urges that there is a total failure of proof “to show any negligence on the part of the defendant proximately causing the loss and injury in question,” and “that the undisputed testimony shows plaintiff to have been guilty of contributory negligence as a matter of law.”

At the time and place involved defendant's railroad ran approximately east and west, was double-tracked, with a space of seven or eight feet between the tracks, on an embankment twenty-five to thirty feet wide. As pasture land for his band of horses-about twenty-five in all-the plaintiff had leased one hundred sixty acres directly north of defendant's right of way and beginning on the west side of section seven, running east across the entire section and eighty rods east into section eight. On both sides of its tracks defendant maintained a right-of-way fence of woven wire with barbed wire on top, running away beyond the pasture east and west, and at the time involved the north fence was in good repair. On the west side of the pasture there was a fence running north and south to and connecting with defendant's fence along the north side of the right of way. Plaintiff had no fence on the east side of his pasture field in section eight, depending upon Apple Creek as a barrier to his horses leaving the pasture. The section line running north and south between sections seven and eight was a regular highway, open to traffic. Plaintiff testified it was a public thoroughfare with public crossing, had been declared open for public travel, and he knew “the amount of traffic that goes over it”; that people pass back and forth on it, but it is not graded; that “it is just a road. The federal men go through there every day.” However, there was a gate across this section line in the right-of-way fence of the defendant on the north side of the railroad track and another gate on the same section line on the south side of the railroad track. The gate on the north side of the right of way across the public road on the section line was placed there by the railroad company and anyone driving on this road from the north or south across the railroad track must needs open the gate. The section line road was graded on the right of way up to and across the railroad track on both sides, with a plank crossing over the tracks. The plaintiff maintained no barrier whatever on either side of the section line and road between sections seven and eight to prevent his horses from straying on to the right of way through these gates. About 4 P. M. of the day of the accident the section foreman found the gates open and some horses on the right of way. He drove the horses into plaintiff's pasture and closed and fastened the gates.

The undisputed testimony shows that about 7:55 P. M. on the evening of that day the through passenger train of the Northern Pacific running westward-known as the “fast train”-was traveling at the rate of sixty miles an hour. The engineer, who was keeping a lookout on the north side of the train, blew the whistle as he came near the crossing, and when about one hundred fifty feet east of the crossing the fireman, who was keeping a lookout on the south side of the train, noticed some horses in a depression on the south side of the right of way. This place was about twenty feet deep, and owing to its condition the horses could not have been seen earlier. He saw the mare and a colt come up out of the south ditch on to the railroad track and immediately notified the engineer. The mare crossed the road, ran along the track until struck by the train about fifty feet west of the section line and was hurled into the north ditch about one hundred...