McCauley v. Montana Central Railway Co.

Blake, C. J. This action was brought to recover damages for injuries to a cow, in the month of December, 1889, through the negligence of the agents and servants of the appellant, a railroad corporation. There is only one question for our consideration. At the con-= [484] elusion of the evidence for the plaintiff “the defendant moved the court that plaintiff be nonsuited because he -had introduced and offered no testimony tending to show any negligence on the part of the defendant.” The motion was overruled, and, no evidence being introduced by the defendant, judgment was entered in favor of the plaintiff. All the testimony upon this point is given in the transcript. The plaintiff testified that he was acquainted with W. B. Green ; that he went to see him to settle for the cow; that Mr. Green was acting as claim agent at the time of the defendant; that Mr. Green “said he was on the train at the time, and ordered the cow killed, and he ordered the beef shipped to Helena to be sold for the benefit of the company. He said that he ordered it to be killed, or killed it himself, but as to which I can’t say now. He said nothing more as to how the cow was killed, but that she had one leg broken, and he ordered it killed — either killed it himself, or ordered it billed; that the train had knocked her off the track. .... I was told that this cow was killed on the Montana Central road. Mr. Green told me that, and he also told me that he was on the train at the time.” This testimony concerning the conduct of Mr. Green can be easily understood by observing this section of the statutes: “ In every case of the wounding and killing of any such cattle or sheep, the price of the damages [for which] is fixed by this chapter, the body of such animal shall belong to such company, unless the owner thereof shall elect to take the same in lieu of said damages, or part thereof, within twenty-four hours after said wounding or killing; but in every other case the railway or railroad company may proceed to take care of and preserve the body of said animal; and it shall be the duty of said company to preserve the hide of such animal for at least thirty days after such killing, for inspection, by said railroad or corporations at the station-house nearest to the place where such killing occurred.” (§ 717, Comp. Stats, div. 5.) Green was upon the train which inflicted the injury upon the animal, and availed himself of the provisions of the law for the benefit of railroad companies when they are liable to be mulcted in damages for the killing of live stock. The action of this agent of the corporation, within the scope [485] of Ms duties, and the receipt of the proceeds of the sale of the beef, are sufficient to establish a prima facie case of the admission of negligence against the defendant. It is conceded by the appellant that the respondent has the right to bring an action for the conversion of the animal, and therefore it is contended that the appropriate remedy has not been pursued. But this officer of the corporation was acting rightfully, under a statute which authorizes these proceedings, and hence there was no conversion of tb > property. His conduct, and that of the appellant, were admissions as potent as words, and were entitled to be weighed by the jury. It is ordered and adjudged that the judgment be affirmed. Affirmed.