Missouri, Kansas & Texas Ry. Co. v. Farrington

Townsend, J. (after stating the facts.) There is some conflict in the evidence in this case as to the distance the train was from the cow when the cow got upon the track and also as to the speed the train was running. The evidence of the plaintiff is that the train was 200 yards from the cow when she got upon the track, and the evidence of the engineer is that she was about 90 feet from the engine; that she got off the track, and he thought she would remain off, but that she came back on the track when the engine was about 50 feet from her. The evidence is that there was a slight curve, but it was upon the prairie, and the view unobstructed, and, as witness White testified, the “engineer could have seen a dog.” The evidence further is that the train made no effort to slacken.its speed, but, as it approached the cow, rather increased it, and the speed they were running is estimated from 10 miles per hour, by defendant’s witness, to [650] 40 miles per hour, by plaintiff’s witnesses. The evidence, we think, properly went to the jury, and it is the province of the jury to say whether the circumstances are sufficient to warrant a finding that the cow was killed through the negligence of the railway company. The duty of railway companies to keep a lookout for stock on their tracks is no longer an open question. We think the charge of the court properly stated the law to the jury. The questions involved in this case are fully discussed in Railway Co. vs Ellis, 10 U. S. App. 640, 4 C. C. A. 454, and 54 Fed. 481; Railway Co. vs Washington, 4 U. S. App. 121, 1 C. C. A. 286, and 49 Fed. 347; Railway Co. vs Elledge, 4 U. S. App, 136, 1 C. C. A. 295, and 49 Fed. 356; Railway Co. vs Johnson, 10 U. S. App. 629, 4 C. C. A. 447, and 54 Fed. 474, and cases cited. We do not think there is any error, and the judgment is therefore affirmed. Negligence. Que~tfou for Jury. Springer, C. J., and Clayton and Thomas, JJ., concur.