Varco v. Chi., M. & St. P. Ry. Co.

• Decision Date: 17 November 1882
• Citation: 13 N.W. 921,30 Minn. 18
• Court: Minnesota Supreme Court
• Parties: VARCO v CHICAGO, M. & ST. P. RY. CO.

30 Minn. 18

13 N.W. 921

VARCOvCHICAGO, M. & ST. P. RY. CO.

Supreme Court of Minnesota.

Filed November 17, 1882.

Appeal from order of district court, county of Mower, denying a new trial.

J. M. Greenman, for respondent.

D. B. Johnson, Geo. E. Clark, and M. B. Carey, for appellant.

VANDERBURGH, J.

The complaint alleges that two colts, the property of plaintiff, escaped from his land through a defective railroad fence, which defendant corporation had neglected to repair, and were killed by its engine. The answer does not deny that the injury complained of was caused by defendant's engine on the track, but denies that it was caused by any negligence on defendant's part in failing to maintain and keep its fence in repair or otherwise.

1. The theory of the defense is that the animals were killed on a highway crossing near by, intersecting the railroad just south of a cattle-guard which is also situated some distance south of the alleged breach in the fence, and hence it is claimed that from the situation of the premises they could not have escaped through the fence as alleged by plaintiff. But the jury find specially that the horses were not on the highway when struck, but were north of the cattle-guard, or in the act of jumping it at the time, to support which there was some evidence. The evidence also shows that there was a breach in the fence of defendant adjoining the pasture of plaintiff to which the animals had access at the time, caused by the burning of a post two or three weeks prior to this accident, and that the fence had remained out of repair during all that time, though the section men who were charged with the duty of looking after the condition of the fences and track passed over the track and along the premises nearly every day. These issues of fact were therefore settled by the verdict, and sufficient time had intervened before the injury to raise the presumption of notice to the company of the defect in the fence. Plaintiff's allegations of negligence in the premises must, therefore, be deemed sustained.

2. It also appears that the section foreman was charged with the duty of reporting and burying animals killed by the cars. One of these colts was killed outright, the other lived a day or two after the injury. He immediately buried the one already dead, and as to the other the plaintiff testified under defendant's exception: “He told me to take good care of the colt, and he would report the colt injured. The colt died in a day or two, and I reported to him. He came and got the body out of the barn and buried it.” These acts of the section foreman were directly in the line of his duty as to animals so killed or injured. As an admission, the evidence imported nothing further than that he had obeyed his instructions, without reference to the question of the circumstances which might have led to the...