Timm v. Northern Pacific Railroad

Mr. Chief Justice- Greene delivered the opinion of the court. In rounding a curve, the railway train of defendant in error suddenly came upon three cows of plaintiffs in error, and struck and injured two of them. An action for damages was brought, alleging, as ground of recovery, negligence -in leaving the track unfenced. It ended in a nonsuit, judgment of dismissal, and appeal to this court. The sole error assigned is the nonsuit and consequent dismissal. A statement of facts brings up the evidence. Plaintiffs in error claim that their evidence in the District Court showed prima facie negligence in defendant, and no contributory negligence in plaintiffs. Defendant in error contests both branches of this claim. No contributory negligence is suggested, unless it consist in the mere fact that the cattle were astray upon the railway track. But the law of this territory does not require the owner of cattle to keep them from roaming at large over uninclosed land, nor to keep them under his eye. The law being such, their presence on the track is not to be deemed negligence in him, even though he know, as the evidence in this case shows, the plaintiffs did know the track to be unfenced. As showing negligence in the railway company, it is claimed from the evidence that their track was unfenced, that brush was allowed to grow along the right of way, hindering the view of the track where the cattle were from the engineer of the approaching train, and that the train was carelessly managed by the engineer. But no law required the fencing of the [302] track, and the evidence does not disclose that any brush was growing on the right of way. It appears, however, that when the train came in sight of the cattle, the whistle was sounded, and that the cattle ran two hundred and fifty or two hundred and seventy-five yards before any of them were overtaken and struck. It is in evidence that the train consisted of an engine and sixty or seventy cars loaded with coal. What was the description of the train otherwise, or of the whistle blast, or of the railway grade, or of the engine, or how far from the cattle the train was when they could have been first sighted from it, or within what space the train could have been stopped, or how the speed of the train after sighting the cattle, or as it neared them, was as compared with its speed before, does not transpire. The engineer was bound to use that skill and caution in the conduct of his train that a man of ordinary prudence and of skill and experience enough for the safe management of such a train so circumstanced as his was would have exercised. Such skill and caution would have led him to bring his train to a stand-still, if by reasonable diligence, and with due regard to the safety of the property and life on the train he could do so, rather than injure the cattle. It is not by any means clear that the engineer was in fault. But after careful consideration of the evidence, we are come to the opinion that it might safely be assumed by court and jury that the train, in all respects other than those disclosed in evidence, was an ordinary train, and not peculiarly circumstanced, and that an ordinary train thus circumstranced might, without danger to itself or any freight or life aboard it, have been stopped within the space of 270 yards. If we are correct in this opinion, there was a prima facie case made by plaintiffs’ evidence, and the causo should not have been taken from the jury. [303] The judgment of the District Court must be reversed and a new trial ordered. Langford, J., and Turner, J., concurred.