Tisthammer v. Union Pacific Railroad Co., 1580
Decision Date | 07 April 1930 |
Docket Number | 1580 |
Parties | TISTHAMMER v. UNION PACIFIC RAILROAD CO. [*] |
Court | Wyoming Supreme Court |
APPEAL from the District Court, Goshen County; CYRUS O. BROWN Judge.
Action by J. B. Tisthammer against the Union Pacific Railroad Company. From an adverse judgment, the defendant appeals.
Reversed.
For the appellant there was a brief by John W. Lacey and Herbert V Lacey, of Cheyenne, and Erle H. Reid and Walter T. More, of Torrington, and oral argument by Herbert V. Lacey and Mr More.
The action was brought under Sections 3086 and 3087 C. S. Defendant's motion for a directed verdict should have been sustained, the evidence being undisputed that the fence complied with 3086 C. S., and plaintiff having failed to prove that the fences and cattle guards were insufficient. Bank v. Ford, 216 P. 691; Griffith v. Cas. Co., 253 S.W. 1043. The evidence showed that the cattle were struck on the public highway. Plaintiff's expert testimony was without probative value; established facts cannot be contradicted by an opinion. American Car Co. v. Kinderman, 216 F. 499; Succession of Ford, (La.) 92 So. 61; Illinois C. R. Co. v. Emerson, (Miss.) 44 So. 928; In re Gedney's Will, 142 N.Y.S. 157; McIntyre v. Pittsburgh, (Pa.) 86 A. 300; Baxter v. Rwy. Co., (Wis.) 80 N.W. 644. Opinion evidence fails in the face of undisputed facts. People v. Hall, 48 Mich. 482; Veits v. Rwy. Co., (Mich.) 20 N.W. 818; U. S. v. Sixty Barrels of Wine, 225 F. 846; Rwy. Co. v. Britton, 190 F. 316; Louisville Rwy. Co. v. Admrx., 90 S.W. 977. A jury is not permitted to conjecture in reaching its verdict. Davis v. Ellis, (Va.) 126 S.E. 661; Copeland v. R. R. Co., 293 F. 12; Illinois Central v. Coughlin, 132 F. 801; Rwy. Co. v. Hawk, 160 F. 348; Rwy. Co. v. Fulgham, 181 F. 91; Smith v. Rwy. Co., 200 F. 553; Searles v. Rwy. Co., 101 N.Y. 661, 662; Warner v. Rwy. Co., 77 S.W. 67; Menzies v. Paving Co., 94 N.Y.S. 492; Hyer v. Janesville, (Wis.) 77 N.W. 729; Wiedekamp's Adm'x v. R. R. Co., (Ky.) 167 S.W. 882; Groth v. Thomann, (Wis.) 86 N.W. 178; Wright v. Conway, 34 Wyo. 1; Patton v. Rwy. Co., 179 U.S. 658; Boland v. R. R. Co., (Wis.) 150 N.W. 967; Caudle v. Kirkbridge, (Mo.) 93 S.W. 868; Davis v. Allen, (Ky.) 251 S.W. 194; Musbach v. Co., (Wis.) 84 N.W. 36; R. R. Co. v. Stayton's Admr., 174 S.W. 1104. If there was a mere scintilla of evidence, it would not be sufficient to carry the case to the jury. Boswell v. Bank, 16 Wyo. 161; Escallier v. Rwy. Co., (Mont.) 127 P. 458; Meyer v. Ins. Co., (Ind.) 43 N.E. 448; R. R. Co. v. State, (Md.) 18 A. 969; Ketterman v. R. R. Co., (W. Va.) 37 S.E. 683. The opinion and conclusion of the witness Meek were not admissible. Coe, et al. v. Van Why, (Colo.) 80 P. 894; People v. Worden, (Cal.) 45 P. 844; People v. Hall, 48 Mich. 482; Ry. Co. v. Barry, (Ark.) 290 S.W. 942; Boney v. Rwy. Co., (N. C.) 71 S.E. 87; Hellyer v. People, (Ill.) 58 N.E. 245; Nichles v. Rwy. Co., (N. C.) 54 S.E. 255; Meehan v. Rwy. Co., (N. D.) 101 N.W. 183. The judgments of unskilled jurors are generally safer than the opinions of hired and generally biased experts. Sappenfield v. R. Co., (Cal.) 27 P. 590; Chicago Rwy. Co. v. Cummings, (Ind.) 53 N.E. 1026; Lane v. R. R. Co., 86 N.Y.S. 947; Meyers v. Min. Co., (Utah) 77 P. 347; Goodrich v. May, (Ore.) 255 P. 464; National Biscuit Co. v. Nolan, 138 F. 6; Hicks v. Davis, (Okl.) 120 P. 260; Hoffman v. Brewing Co., (Ill.) 100 N.E. 531; Pearson v. S. S. Co., (Wash.) 99 P. 753; Bishop v. Wight, 221 F. 392; Lee v. Salt Lake City, (Utah) 83 P. 562; Virginia Co. v. Knight, (Va.) 56 S.E. 725. The question whether the cattle were struck on the highway or on the east of the highway, was a question for the jury based upon evidence, and should not be disposed of on the unsupported opinion of an expert witness. Ramapo Co. v. Mapes, 110 N.E. 772; Romero v. Herrera, (N. M.) 228 P. 604; Martin v. Light Co., (Ia.) 106 N.W. 359; Pace v. McAden, (N. C.) 131 S.E. 629; Crouch v. Co., (Ia.) 217 N.W. 557. The court erred in overruling the defendant's objections to the testimony of the witness Foster.
For the respondent there was a brief by J. L. Sawyer, of Torrington.
The fact that the cattle were struck by a locomotive and killed and proof of the approximate weight of the animals killed was undisputed; there was testimony that livestock had passed over the cattle guards near the Bullard beet dump; that as to the fence, one wire was torn off and two wires were loose, near where the cattle were found; all were found dead on the right of way inside of the fence. It was also proven by an eye witness that some of the cattle had gone thru the fence. Witness Meeks, a locomotive engineer, formerly employed by defendant, and a man of wide experience with reference to the questions involved, testified that it would be impossible for the locomotive to carry the cattle from the road crossing to the place where they were found. There was also testimony as to the condition of the cattle guards on the evening of the accident. It is true that the engineer in charge of the engine that struck the cattle, testified that he had seen the cattle on the road crossing, and that none of them were on the right of way. Another witness for the defendant testified, that he had removed the bodies some of which were strewn as far as fifteen feet from the road crossing. Other circumstances of a conflicting nature were testified to by witnesses at the trial. The verdict is based on conflicting evidence, and it should not be disturbed. The instructions given by the trial court properly stated the law of the case, and the judgment should be affirmed.
This case is before the court by direct appeal from a judgment of the District Court of Goshen County in favor of J. B. Tisthammer, respondent here, plaintiff below, who brought the action to recover damages on account of alleged injury and destruction of live stock, against the Union Pacific Railroad Company, which now seeks a review of the record made in the case.
Plaintiff's petition alleges the corporate character of the defendant company; its duty to erect and maintain a sufficient and suitable fence on each side of its railroad track about two and one-half miles east of the town of Yoder, near the Bullard beet dump and a public road crossing there, and also to have said fence connected with the public road crossings with suitable and sufficient cattle guards so as to prevent live stock from passing over the cattle guards and through the fence and straying upon defendant's tracks; that this duty was not fulfilled at that point; that about October 14, 1926, seven head of live stock of a specified value and owned by plaintiff, by reason of defendant's negligence in not performing the duty incumbent upon it as aforesaid, got upon defendant's tracks and were injured and killed, to plaintiff's damage in a claimed sum. The defendant's answer admitted that one of its trains did, on the date alleged, strike and injure five head of cattle, but denied generally all other allegations of the petition.
A jury being demanded, the case proceeded to trial, and upon the conclusion of plaintiff's evidence the defendant moved for a directed verdict. This motion being denied, evidence in defense of the action was introduced. Upon the conclusion of the trial, defendant again asked for a directed verdict, and this request also the court declined to grant, due exception being allowed to the ruling. The jury rendered a verdict for somewhat less than one-half the amount claimed, and the court entered judgment accordingly.
A number of errors are urged, based upon alleged incorrect rulings made by the court in the course of the trial. Underlying these matters and a controlling question in the case, was whether the cattle injured were struck by defendant's train inside the latter's right of way or on a public road crossing. Sections 3086 and 3087, Compiled Statutes of Wyoming 1920, requiring railroad companies to construct and keep in repair on each side of their tracks, a sufficient fence so connected with suitable cattle guards at all public road crossings as to prevent stock from getting on the railroad tracks, and imposing liability to the owners of stock injured by reason of the failure to do this, contain in Section 3087 the following proviso: "Provided, that no corporation operating a railroad shall be liable for any damage occasioned by the wilful act of the owner or of his agent or employees or for stock killed or injured on public road crossings unless negligence on the part of such corporation, its agents, servants or employees can be shown." As the pleadings in the case raise no question of negligence in the operation of the train, both parties concede that under the statute, to make a case for the plaintiff, it was necessary to establish that the cattle injured were struck on defendant's right of way, and not on the public highway crossing. This view would seem to be correct in the light of the proviso just quoted.
The facts proper to be considered, as we understand them, in disposing of this question, are in brief substantially these Running in an easterly and westerly direction through the northeast corner of Section 36, Township 23 North, Range 62 West and the northwest corner of Section 31, Township 23 North, Range 61 West, the defendant's railroad and right of way crosses a public highway, which runs north and south along the line separating the two townships aforesaid, that line being a few feet easterly from the center line of the highway. Eastward, approximately 500 feet from the crossing and on the south side of the right of way, was a beet dump known as the Bullard beet dump. It was in charge of a man who lived in a...
To continue reading
Request your trial-
Diamond Cattle Co. v. Clark, 1994
...... Lumber Co. v. O'Neal, 160 F. 596; Western. Union v. Hearne, (Tex. Civ. App.) 26 S.W. 478; Metal. Co. v. ...161;. Calkins v. Wyo., 25 Wyo. 409; Tisthammer v. U. P. R. R. Co., 41 Wyo. 382. Pertinent illustrations ......
-
Northwest States Utilities Co. v. Ashton, 1965
...nature and so related to each other that "no other conclusion can fairly or reasonably be drawn from them." It should be noted that in the Tisthammer case, what the court really decided was that one conclusion could reasonably be drawn from the evidence, and that was that the cattle killed ......
-
Hildebrand v. Chicago B. & Q. R. R, 1744
...been proven or admitted, inconsistent testimony relating to defects in rail fences at some other point was inadmissible. Tisthammer v. U. P. R. R. Co., 41 Wyo. 382. the burden of proof rested upon the party who had the affirmative as shown by the pleadings. 22 C. J. 14, pp. 68, 69; also 22 ......
-
Dr. Pepper Co. v. Heiman
...evidence than positive testimony unconfirmed by circumstances.' The authorities cited thereunder, including Tisthammer v. Union Pac. R. Co., 41 Wyo. 382, 392, 286 P. 377, 380, bear out the However, the fact that plaintiff may have reduced his speed to between 30 and 35 miles an hour after p......