Haner v. Northern Pacific Railway Co.

SULLIVAN, J. This suit was brought to recover the value of a Jersey cow alleged to have been killed by the appellant because of the negligence and careless running of a locomotive and train of cars. The complaint alleges that said cow casually and without the fault of plaintiff strayed in and upon the track and grounds occupied by the railroad of defendant, about two miles east of the city of Lewiston, upon what is known as the “Delsol Land.” The complaint further alleges as the ground of the liability of the defendant that defendant, “not regarding its duty, so negligently and carelessly ran, managed, and operated its said locomotives, trains, and cars that the same ran against and over the said cow and killed the same.” The amended answer of defendant puts in issue the allegations of the complaint. The case was tried by the court with a jury, and verdict and judgment was entered in favor of the plaintiff. This appeal is from the judgment, and was taken within sixty days after the entry thereof. The evidence of the plaintiff shows the ownership and value of the cow; that on the morning of the 30th of September, 1898, the cow left home before she had been milked. Children were sent to find her, and found her lying near the railroad track, in a badly bruised and helpless condition. The only eyewitness to the striking of the cow by appellant’s locomotive, who ’testified in the case, was George A. Xing, the fireman on said locomotive. None of plaintiff’s witnesses saw the accident, and they knew nothing of it, except that the animal was found in a helpless condition near the railroad track. The testimony of said King, which was uncontradicted or unim-peached, is to the effect that the train of cars referred to consisted of twenty-one cars, and that the train was running at a [308] speed.of about twenty-five miles an hour when the cow was first seen; that she came upon the track from the south side, from behind a line of trees and brush; that it was impossible to see her before she came out from behind the brush; that she came running out from behind the brush, and very suddenly ran upon the track; that the train was within three hundred feet of her at the time it was first possible to see her. It is shown that the track was substantially straight for some distance in the direction from which the train was coming, before reaching the point where the cow was struck, and that the trees and brush stood so close to the track as to preclude possibility of seeing the cow until she ran out from behind them and rushed upon the track. The rules of the company permitted said train to run thirty miles an hour, and at the time said cow was first seen the train was running about twenty-five miles per hour. It is also shown that as soon as the cow was seen the whistle was blown, and an emergency application of brakes made, to stop the train. It is also shown that it was impossible to stop the train after the cow was seen before the train struck her, and that when the cow was struck the speed of the train had been reduced to* about ten or twelve miles an hour. The testimony shows that the cow was allowed to run at large on the public highway and elsewhere, without any attention, from the time she was turned out in the morning until she was gotten up in the evening, and that the plaintiff had full knowledge of the existence of the railroad track and the running of trains over the same in the vicinity where the cow was permitted to run at large. Seven errors are assigned, six of which refer to the instructions given and refused by the court, and one to the admission of certain evidence, and a refusal to strike such evidence out after it was let in. It is above shown that the plaintiff 'seeks to recover for the negligent and careless killing of a cow, and the complaint charges negligence only in running, managing, and operating a locomotive and train of cars. The right to recover is limited to the negligence alleged. The court admitted, over the objection of appellant, evidence tending to prove that appellant had not fenced its track at the point where the cow [309] was killed, as required by the provisions of section 2670 of the Revised Statutes. Evidence was also admitted, over the objection of defendant, that a highway crossed the railroad track near where the cow was killed — all of which is assigned as error. As the negligence alleged in the complaint consisted of the running, managing, and operating its locomotive and train, the right to recover is limited to the negligence alleged in the complaint, and cannot, without amending the complaint, be shifted to negligence in fencing its track, or failure to ring the bell and sound the whistle at points where public highways cross the track. At the close of all of the evidence the appellant moved the court to instruct the jury to return a verdict for the appellant, which motion was denied. The denial of said motion is assigned as error. We have carefully examined the evidence, and find no proof whatever sustaining the allegation of the complaint to the effect that said cow was killed by the negligent and careless running of appellant’s locomotive and train of cars. The right to recover in this suit is predicated upon the issues made by the pleadings, and must be confined to those issues. No issue was made as to whether the killing of the cow occurred because of appellant’s failure to fence its track, or because of a failure to ring the bell or sound the whistle at public highway crossings, as required by law, and it is prejudicial error to admit evidence upon said two points. The court instructed the jury that the burden of proof was upon the defendant to establish contributory negligence on the part of plaintiff, which instruction is assigned as error. In Minty v. Railway Co., 2 Idaho, 437, 21 Pac. 660, 4 L. R. A. 409, our territorial supreme court held that one seeking to recover for an injury takes the burden upon himself of establishing negligence on the part of the defendant, and due care on plaintiff’s part. The rule there laid down has been followed by this court in Rumpel v. Railway Co., 4 Idaho, 13, 35 Pac. 702, 2 L. R. A. 725, and Railway Co. v. Holt, 4 Idaho, 443, 40 Pac. 56. The rule laid down in those cases is upon the theory that, as plaintiff cannot recover if he is guilty of contributory negligence, he must allege and show that the damage [310] occurred without fault on his part. Under the rule established in said cited eases, the giving of the instruction referred to was error. As interest on the value of the cow was not claimed by the plaintiff in her complaint, it was error to instruct the jury, if they found for the plaintiff, to return a verdict for interest. However, the giving of said instruction was not prejudicial .error, as no judgment was entered for interest. The court erred in refusing to instruct the jury at the close of the evidence to bring in a verdict for the defendant. That being true, it also erred in submitting to the jury the question whether the train could have been stopped, with the exercise of ordinary care, after the presence of the animal was discovered on or near the track, and before it was struck. All of the evidence clearly shows that it could not have been stopped. The judgment is reversed and the case remanded, with costs of this appeal in favor of appellant. Huston, C. J., concurs, and Quarles, J., concurs in eoiulusion reached.