Witherell v. Milwaukee & St. Paul Railway Company

• Decision Date: 09 March 1878
• Citation: 24 Minn. 410
• Parties: Russell Witherell v. Milwaukee & St. Paul Railway Company
• Court: Minnesota Supreme Court

24 Minn. 410

Russell Witherell v. Milwaukee & St. Paul Railway Company

Supreme Court of Minnesota

March 9, 1878

[Syllabus Material] [Syllabus Material]

This action was commenced before a justice of the peace in Dakota county, and subsequently brought by appeal upon questions of law and fact to the district court for the same county, where it was tried by Crosby, J., and a jury. The action was brought to recover damages for the killing of a colt, through the alleged negligence of the defendant. Plaintiff having rested, the defendant moved for a nonsuit, upon the ground that the evidence disclosed no cause of action against the defendant; the colt having been a trespasser, and the defendant not being liable except for the wilful injury or reckless misconduct of those employed in the management of the train. The motion for a nonsuit was denied, and defendant duly excepted.

The defendant also excepted to the following language in the general charge of the court: "Negligence, gentlemen of the jury, is the want of such care as a person of ordinary prudence would exercise under similar circumstances. In determining this question you will bear in mind the definition of negligence which I have given you. It is the want of such care as a person of ordinary prudence would exercise under the same circumstances. Applying this definition of negligence, you will determine from the evidence whether the defendant was negligent. If you find that it was not, your verdict will be for the defendant; if you find it was, your verdict will be for the plaintiff."

The court also said: "The plaintiff asks a special finding upon the only point that is really important in the case. He asks you to find this question: 'Did the defendant's employes in charge of the train, after they discovered the peril of the colt, omit to do something to avoid striking the colt, which they might prudently have done, with reference to the safety of the train and passengers?' That you may answer by yes or no, as you may find the fact, and leave it with your general verdict."

The following requests, in behalf of the defendant, were respectively refused by the court:

"1. To return a verdict for the defendant.

"2. The defendant had the right to presume that the plaintiff would keep his colt at home, where he belonged, and owed the plaintiff no duty to look ahead to see where the colt was.

"3. That the defendant, as against this plaintiff, was under no obligations to set the brakes or endeavor to stop the train until those in charge of the train saw the plaintiff's colt upon the track."

The jury after being out all night, returned to the courtroom for further instruction on the following question, which was submitted to the court in writing:

"At the time that the counsel for the defendant asked the court to grant a nonsuit for the reason that there was not sufficient evidence to show that there was any negligence upon the part of the employes of the company, did not the court overrule said motion on the ground that in his opinion there was sufficient evidence to go to the jury in regard to the negligence of the employes of said company?"

The court answered: "The question of the sufficiency of the evidence the court did not pass upon. The court simply held that there was some evidence the jury might consider, and it is for the jury to determine whether the evidence was sufficient to establish the fact of negligence or not. The court cannot instruct the jury what weight should be given to the evidence. Courts should not indicate to the jury what facts the evidence establishes. If in any case there be any evidence to establish a particular fact, the court will not take the case away from the jury, but submit the evidence to the jury and let them determine from the evidence whether the fact was established or not."

The jury, thereupon, after a short deliberation, returned a verdict for the plaintiff, and answered "Yes," as to the special finding submitted by the plaintiff under the instructions of the court.

The defendant subsequently moved for a new trial, and the motion having been denied defendant appealed.

Order denying new trial affirmed.

Gordon E. Cole, for appellant, argued that it was undisputed that the engineer did not see the colt until the engine was about sixty-four rods from the place where the colt was killed; that the colt did not get upon the track until the engine was within thirty-five or six rods of the place where it was killed, and that it was then too late to stop the train. Locke v. St. P. & P. R. Co. 15 Minn. 350. He further argued that it appeared from the expert testimony that the train could only have been stopped from the time the colt was first seen, so as to avoid accident, by the use of the most strenuous exertions and extraordinary diligence, and that such unusual efforts were not required in order to avoid injury to trespassing cattle; that the proximate cause of the collision was placing the colt in a field with an insufficient fence, whereby he escaped into an adjoining field and from thence to the railroad track; that the plaintiff was thereby guilty of negligence contributing to the loss of the colt, without any wilful or wanton neglect upon the part of the defendant, and that therefore the plaintiff could not recover. Locke v. St. P. & P. R. Co. 15 Minn. 350; Donaldson v. M. & St. P. R. Co. 21 Minn. 293, 297; Tonawanda R. Co. v. Munger, 5 Denio 255; Maynard v. Boston & Me. Railroad, 115 Mass. 458; Munger v. Tonawanda 4 N.Y. 349: Hance v. C. & T. R. Co. 26 N.Y. 428; N. P. R. Co. v. Behwan, 5 Am. Law Reg. 49; R. Co. v. Skinner, 19 Pa. 298; Williams v. Mich. Cent. R. Co. 2 Mich. 260; Fisher v. F. L. & T. Co. 21 Wis. 74; Vandegrift v. Rediker, 2 Zab. 185; Price v. N. J. R. Co. 2 Vroom 229; N. P. R. Co. v. Rollins, 5 Kan. 168; C. H. & D. R. Co. v. Waterson, 4 Ohio St. 424. Also that the cases seeming to conflict with the above position were based upon local statutes, (Alger v. M. & M. R. Co. 10 Iowa 268,) and that, under such circumstances, ordinary care was alone required of railroads, even by the most advanced authorities. Bemis v. Passumpsic R. Co. 42 Vt. 375; I. C. R. Co. v. Thomas, 14 Am. Law Reg. 290; Jackson v. R & B. R. Co. 25 Vt. 150.

Clagett & Searles, for respondent, argued that while there was no duty incumbent upon a railroad company to discover trespassing cattle, or to run its trains with the expectation of meeting such cattle, yet that when they were actually discovered reasonable care must be used to avoid injuring them. Railroad v. Caufman, 28 Ill. 513; Railroad v. Middlesworth, 46 Ill. 494; Railroad v. Baker, 47 Ill. 295; Stucke v. M. & M. R. Co. 9 Wis. 202; Railroad v. Bray, 57 Ill. 514; Railway v. Lewis, 58 Ill. 49; Id. 120; Shepard v. Railroad, 35 N.Y. 641; Hance v. Railroad, 26 N.Y. 428; Railroad v. Blackeney, 43 Miss. 218; Railroad v. Orr, Id. 279; New Orleans v. Field, 46 Miss. 573; Jones v. Railroad, 70 N.C. 626; Railway v. Lawrence, 13 Ohio St. 66; Railway v. Smith, 22 Ohio St. 227; Parker v. Railroad, 34 Iowa 399; Bemis v. Railway, 42 Vt. 375; Cornwall v. Sullivan, 28 N.H. 161; Perkins v. Railway, 29 Me. 307; Railway v. Wainscott, 3 Bush. 149; Railway v. Shriner, 6 Porter 141; Sher. & Red. on Neg. § 25; Whart. on Neg. §§ 355, 397; 1 Red. on Railw. § 126, subdiv. 22.

OPINION

Berry, J.

This action is brought to recover damages for the killing of plaintiff's colt, through the alleged negligent management of one of defendant's railroad trains.

A verdict having been rendered for the plaintiff, the defendant moved for a new trial, on the ground that the verdict was not justified by the...