Sprague v. Fremont, E. & M. V. R. Co.

• Decision Date: 31 October 1888
• Citation: Sprague v. Fremont, E. & M. V. R. Co., 50 N.W. 617, 6 Dak. 86 (S.D. 1888)
• Court: South Dakota Supreme Court
• Parties: Sprague v. Fremont, E. & M. V. R. Co.

50 N.W. 617

6 Dak. 86

Sprague

v.Fremont, E. & M. V. R. Co.

Supreme Court of the Territory of Dakota.

Oct. Term, 1888.

Appeal from district court, Custer county; Charles M. Thomas, Judge.

Action by Alfred L. Sprague against the Fremont, Elkhorn & Missouri Valley Railroad Company for the killing or injuring of plaintiff's cattle. Judgment for plaintiff. Defendant appeals. Affirmed.

The evidence showed that plaintiff at the time of the injury owned a farm in Custer county, and that it was crossed by defendant's railroad, that plaintiff's cattlewere kept in a corral during the night, and in the morning turned out on the unfenced prairie, and there allowed to roam at will during the day, without a herder. About 4 o'clock in the day one of defendant's trains ran into the cattle, and killed one. Afterwards, the other cattle having gathered around the dead one, a second train, following closely upon the first, struck and injured two more. The country was level, and plaintiff testified that he was near, and had a plain view of the accident; that he did not notice any slackening of the speed of the trains before they struck the cattle; that the cars were loaded with cattle, and on a slight down grade, and that a person could see along the track, in the direction from which the trains came, for a distance of two miles from the place of the accident. The engineer on the first train testified that his train was going down grade on a curve at the rate of 15 miles an hour when he first saw the cattle on the track; that they were then not more than 60 rods ahead of him; that he signaled at once for brakes, which were applied, but that he was unable to stop the train, or prevent the accident. The engineer on the second train testified to substantially the same circumstances as attending the accident with his train, except that the train was running at the rate of twenty miles an hour, and that he did not discover the cattle on the track until within five rods of them, when it was impossible to avoid the accident, although he made every endeavor to do so. At the close of the evidence defendant asked the court to instruct the jury as follows: “The court instructs the jury that, while the plaintiff had a right to let his cattle run at large, yet, if his cattle were in places extrahazardous, such as in the vicinity of a railroad track, then the plaintiff was required to exercise an extra degree of care in taking care of his cattle, and, if an accident...