Stoeber v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.
| Decision Date | 09 February 1918 |
| Docket Number | 1915 |
| Citation | 168 N.W. 562,40 N.D. 121 |
| Court | North Dakota Supreme Court |
Petition for rehearing denied July 9, 1918.
Appeal from the District Court of McHenry County, Honorable A. G. Burr, Judge.
Defendant appeals.
Reversed.
Judgment entered in favor of the defendant.
Albert Weber and John E. Greene (John L. Erdall of counsel), for appellant.
It is not the duty of men in charge of locomotives attached to trains to keep a constant lookout for trespassing animals. Munger v. Railroad Co., 5 N.Y. 349; Locke v Railroad Co., 15 Minn. 350, Gil. 283; Stacey v Railway Co. (Minn.) 43 N.W. 905; R. R. Co. v. Melton, 2 Lea, 262; Mears v. Railway Co. (Iowa) 72 N.W. 509; Rattanbury v. R. Co. (Mich.) 137 N.W. 679; Bostwick v. R. Co., 2 N.D. 449, 450; Hodgins v. R. Co., 3 N.D. 382; Wright v. R. Co., 12 N.D. 159; Corbett v. R. Co., 19 N.D. 450; Reinke v. R. Co., 23 N.D. 182.
The railway company is released from liability where the owner of animals persistently allows the gates in the fence to remain open, and permits such animals to stray through and to trespass upon the right of way. Such acts constitute gross negligence which prevents recovery. Swanson v. R. Co. (Minn.) 82 N.W. 670, 49 L.R.A. 625, notes, 626 and 630; Mannell v. R. Co. (Iowa) 45 N.W. 568; Peterson v. R. Co. (Wis.) 56 N.W. 639.
Bagley & Thorpe, for respondent.
Plaintiff established the prima facie negligence of defendant by proving the killing of the animals. Comp. Laws 1913, § 4644.
Defendant's headlight on the engine was equipped with a light of only 600 candle power. Such a light does not meet the requirements of our statute, and is of itself negligence per se. Comp. Laws 1913, § 4695; Morrison v. Lee, 22 N.D. 251, 133 N.W. 548; Wright v. Mpls. St. P. & S. Ste. M. R. Co. (N.D.) 96 N.E. 324; Campbell v. Walker (Del.) 78 A. 601; King v. Laycock Power House Co. (Ind. App.) 92 N.E. 741; Greyhek v. Stern, 154 Ill.App. 385; Palmer v. St. Louis & S. F. R. Co., 142 Mo.App. 440, 127 S.W. 96; Wabasha R. Co. v. Beedle, 173 Ind. 437, 90 N.E. 760; Cook v. Chicago etc. R. Co., 153 Ill.App. 596; Short v. Philadelphia, B. & W. R. Co. (Del.) 76 A. 363; Neiman v. Channellene Oil & Mfg. Co. (Minn.) 127 N.W. 394; Louisville & N. R. Co. v. Hames (Ga.) 68 S.E. 805.
It is the rule that where the statute requires an act to be done, a failure to do it as required is negligence per se,--will be declared negligence as a matter of law. Houston & T. C. R. Co. v. Wilson, 60 Tex. 142; Ind. B. & W. R. Co. v. Barnhart, 115 Ind. 399, 16 N.E. 121; Kelley v. Anderson (S.D.) 87 N.W. 579; A. & W. P. R. Co. v. Wyly, 65 Ga. 120; Fane v. Philadelphia Rapid Transit Co., 228 Pa. 471, 77 A. 806; Moore v. Maine C. R. Co., 106 Me. 297, 76 A. 891; O'Leary v. Chicago, R. S. & P. R. Co. (Iowa) 103 N.W. 302.
Our legislature having passed the law by which railroad trains are required to have headlights on their engines in main-line service of at least 1,200-candle power light when measured without a reflector, it must be presumed that such power light only is sufficient, and that any light of less power is insufficient and its use negligence per se. Hanger v. Chesapeake & O. R. Co. (W. Va.) 73 S.E. 713; Alabama G. S. R. Co. v. Jones, 71 Ala. 487; Western R. Co. v. Mitchel, 148 Ala. 35, 41 So. 427, 39 L.R.A. (N.S.) 271.
The question of whether or not defendant was required to keep a lookout is not in this case. Defendant did keep a lookout, and because of this the question here is, if defendant's engine had been provided with the light required by our statute, could the enginemen not have seen the stock in time to have prevented the killing. Jonesboro S. C. & E. R. Co. v. Guest, 81 Atk. 267, 97 S.W. 71; W. R. Co. v. Moore, 169 Ala. 284, 53 So. 744; Ford v. St. Louis R. Co., 60 Ark. 363, 50 S.W. 864; Oweutt v. P. R. Co., 85 Cal. 291, 24 P. 661; Chicago R. Co. v. Reid, 24 Ill. 144; Cincinnati R. Co. v. Hiltzhauer, 99 Ind. 486; Grayville v. Chicago R. Co., 112 Iowa 738, 84 N.W. 846; Palmer v. St. P. R. Co., 38 Minn. 415, 38 N.W. 100.
The burden being upon defendant company to overcome the presumption of negligence, and it having failed to show a compliance with the provisions of our statute, that presumption was not overcome. Campbell v. Mobile & O. R. Co., 154 Ky. 582, 157 S.W. 931.
This is an action to recover from defendant for the negligent killing of several horses while trespassing on its right of way. The verdict was for $ 980. Defendant appeals from the judgment and from an order denying a motion for a new trial or a judgment notwithstanding the verdict.
One horse was run into and killed February 4, 1916, and for this the defendant has offered to pay $ 150, the full value and a little more than the value of the same. Six horses were run into and killed by a passenger train on March 31, 1916, at 6:40 A. M. The question is one of negligence. The railway runs through the plaintiff's farm. His buildings are about a quarter of a mile north of the track. The railway has been fenced with gateways opposite a private crossing of the defendant. The gateways he failed to keep closed. He failed to keep his horses in the stable, where they should have been at 6:40 A. M., and by negligence he permitted them to break away, run through the gates which were left open, trespass on the right of way, and get killed. This contributory negligence of the plaintiff is clear and certain.
In regard to the neglect of the defendant it is fairly conceded that at the time of the accident the headlight on defendant's locomotive was of only 600 candle power, when the statute required a headlight of 1,200 candle power, and it is contended that with a legal headlight the engineer would have seen the horses in time to stop the train.
However, it does appear that in crossing the plaintiff's farm the road runs through a depression or valley, and that at the time of the accident a fog in the valley was so dense that it was opaque,--much the same as a dense fog arising from the steam of a locomotive. The testimony clearly shows that the lack of powerful headlights was not the proximate or real cause of the accident, and that no headlight would have been sufficient to penetrate the fog and discover the horses in time to stop the train. It is shown that at the time of the accident the engineer was making a vain attempt to look through the fog, yet that fact is wholly immaterial.
In this state the law is well settled by repeated adjudications that railway companies are not required to keep a lookout from their locomotives for stock trespassing on their right of way outside of public crossings, depot grounds, and similar places. That in such a case as this the killing of stock trespassing on a railway track is negligence of the company only after the discovery of the stock in a place of danger. Reinke v. Minneapolis, St. P. & S. Ste. M. R. Co., 23 N.D. 182, 135 N.W. 779; Corbett v. Great Northern R. Co., 19 N.D. 450, 125 N.W. 1054. Clearly at the time of the accident when the horses should have been in their stable the defendant was under no obligation to keep a lookout for the horses, and a lookout would have been of no avail even with the most powerful headlight. The statute 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 put in evidence the presumptions of the statute do not apply. The proved facts clear away and suspend all presumptions.
The whole defense and the expenses of the litigation have been on the claim for the killing of the six horses on March 31, 1916, and not on the killing of the one horse for which the defendant offered to pay $ 150, which was more than its value.
Hence, it is ordered and adjudged that on payment of said $ 150 to the clerk of the court for the use of the plaintiff, the District Court shall enter judgment in favor of the defendant notwithstanding the verdict.
In the petition for rehearing filed herein, the respondent directs attention to that portion of the majority opinion wherein it is stated that the plaintiff was negligent in allowing his horses to get upon the right of way of the defendant company, and that he should consequently be barred from recovery on account of such contributory negligence. We are of the opinion that the question of the defendant's liability does not properly depend upon the question of contributory negligence, but that it does depend wholly upon the defendant's negligence. That portion of the opinion referring to the question of contributory negligence is therefore to be regarded as dictum.
The petitioner also contends with much force that the decision in this case negatives the effect of § 4644 of the Compiled Laws of 1913. The section reads: "The killing or damaging of any horses, cattle or other stock by the cars or locomotives along a railroad shall be prima facie evidence of carelessness and negligence on the part of the corporation." While the effect of this statute was carefully considered at the time the conclusions stated in the majority opinion were announced, it might be well to state briefly the reasons which led to the conclusions as to the meaning of the statute. The statute does not announce a rule of liability. Nor does it evidence any attempt on the part of the legislature to require railroad corporations to compensate for the killing of all live stock that may be killed by their cars or locomotives. The statute only creates a presumption of negligence taking the place of evidence which would otherwise be required to establish it. See Hodgins v....
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