Yates v. Camas Prairie Railroad Co.

• Decision Date: 30 November 1912
• Parties: LAFAYETTE R. YATES, Respondent, v. CAMAS PRAIRIE RAILROAD CO., a Corporation, Appellant
• Court: Idaho Supreme Court

128 P. 545

22 Idaho 802

LAFAYETTE R. YATES, Respondent, v. CAMAS PRAIRIE RAILROAD CO., a Corporation, Appellant

Supreme Court of Idaho

November 30, 1912

RAILROAD COMPANY-KILLING OF HORSES-PUBLIC HIGHWAY-NEGLIGENCE-SUFFICIENCY OF EVIDENCE-CONSTRUCTION OF STATUTE.

(Syllabus by the court.)

1. The evidence held sufficient to support the verdict.

2. That part of sec. 2815, Rev. Codes, as amended by Laws of 1911, p 706, which provides that proof of the wounding, maiming or killing of livestock by a railroad company shall be prima facie evidence of negligence or wilfulness on the part of the company, applies only to stock that has been killed on the company's line where it is required to fence it, and not at a highway crossing.

APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.

Action to recover damages for the killing and wounding of certain horses. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

Geo. M Ferris and W. N. Scales, for Appellant.

It is not contended, nor is there any proof, that the defendant failed in any statutory duty which it owed to the plaintiff or the public generally, and negligence cannot be presumed in the absence of proof, except where some law has been violated. (Cottrell v. Union P. R. Co., 2 Idaho 576 (540), 21 P. 416.)

Assuming, however, that the provision of the statute making the killing or injuring of livestock prima facie evidence of negligence on the part of defendant applies to the facts in this case, still the undisputed testimony of the engineer and fireman, who were the only witnesses to the striking of the animals, shows conclusively that the casualty was unavoidable, and overcomes any presumption of negligence or wilfulness that may have existed by reason of such statute, at the close of plaintiff's evidence. (Jones v. O. S. L. Ry. Co., 6 Idaho 441, 56 P. 76; Jensen v. Northern P. Ry. Co., 8 Idaho 599, 70 P. 790; Wallace v. O. S. L. Ry. Co., 16 Idaho 103, 100 P. 904.)

L. Vineyard, for Respondent.

The failure to place in the statute "public crossings" makes it certain that the legislative intent was, that if stock should be maimed or killed at a public crossing on a highway, the company would be prima facie guilty of negligence. The expression of one excludes the other. (Broom's Legal Maxims, star page 286.) "Public crossings" not being used in the act, the legislature intended to exclude it when it used the word "farm crossings."

If, as it is permissible to do, negligence is alleged in general terms, without specifying the particular acts constituting such negligence, evidence is admissible of any act or omission which tends to support the pleading, or of any degree of negligence necessary to entitle the plaintiff to recover. (Mack v. St. Louis R. Co., 77 Mo. 232; Omaha etc. R. Co. v. Wright, 49 Neb. 456, 68 N.W. 618.)

SULLIVAN, J. Stewart, C. J., concurs.

OPINION

SULLIVAN, J.

This is an appeal from a judgment in favor of the plaintiff, who is respondent here, entered upon a verdict of the jury for the killing of three horses and the injuring of two others near Grangeville, on September 6, 1911. It is alleged in the complaint that the appellant, the railroad company, negligently and carelessly ran over with its locomotive and cars, and did thereby maim and kill five head of horses of the value of $ 565, for which sum plaintiff demanded judgment together with an attorney's fee of $ 150.

It appears from the evidence that the horses for which the recovery was had escaped from the inclosure or pasture of the respondent on to the public highway; that on the morning of September 7, 1911, three of the animals were found lying dead along the side of appellant's track and east of a public crossing; that there were marks of horses' hoofs upon the crossing where they were hit, and one side of the cattleguard or wing fence was broken by reason of one or more of the horses being thrown against it by appellant's train, at the time the animals were struck; that the train was running at a speed of from eighteen to twenty miles an hour; that the railroad track was perfectly straight and free from objects that would in any way obstruct the view of the engineer, for more than a mile west of the crossing, and that the horses could have been seen on the crossing a considerable distance therefrom; that the horses in some way, without the knowledge or fault of the plaintiff, escaped from his pasture; that they were struck with great force by the engine and were thrown some sixty feet, and three of them were instantly killed, and no effort was made to stop the train either before or at the time the horses were killed.

The testimony on the part of appellant showed that the horses were seen by the engineer 250 yards away; that they ran across the track and that the engineer saw no more of them before they were struck; that the night was dark and cloudy and the electric headlight on the engine was burning brightly; that the engineer saw some horses run across the track at said public highway and disappear down the...