B. & M. R. R. v. Wendt

Lake, J. By the judge’s charge the jury were explicitly and very properly told that “the mere killing of the cow” was “no evidence of negligence.” The fact that the cow had been killed by a moving engine of the company, at the time and place charged, being admitted by the answer, the only material testimony given upon the trial on this point was as to the speed of the train at the time of the accident. This, according to the complainant’s witnesses, was somewhere between twelve and eighteen miles an hour, while those of the company placed it at not to exceed eight. That this conflicting testimony as to the velocity of the-engine when it struck the cow was, in the mind of the judge,, the pivotal point on which the decision of the jury must turn is apparent, for in referring to it, he said: “The running of a train past, or through the streets of a city, at a speed of eighteen miles an hour would be gross negligence. [78] 'The running of a train at eight miles per hour, or at such other moderate speed as is necessary and customary, in order to carry on and do the business of the defendant company, was not such gross negligence. The question is then mostly confined to the point of the speed at which the train was running at the time of the accident.” The cow was killed within the corporate bounds of the City of Omaha, between Pine and Chestnut streets, “about two blocks” from the residence of the defendant in error, and a short distance from “Boyd’s packinghouse.” Aside from the business being done by the railroad company, this was all that was disclosed on the trial as to the character of that particular locality to distinguish it as an inhabited or business part of the city. Such being the case, there was no ground even for the jury to have found, as matter of fact, that a speed of eighteen miles an hour, the highest rate testified to, was at all unusually dangerous, much less for the court to charge, as a matter of law, that it was “gross negligence.” In this sort of action, whether the injury be done within or without a city, doubtless the rate of speed may be of great importance in determining whether there was in fact negligence on the part of those in charge of the train, and responsible for its movements; but speed alone, unconnected with any other fact or circumstance, and more especially where it is not shown to have been unusual, has never, that we are aware of, been held sufficient to show gross negligence. Besides, it must be apparent upon the slightest reflection that no arbitrary rule as to the rate of speed at which a train of cars may not be run, with due regard for the safety of persons and property, ■can be applicable to all portions of a town or city alike. Evidently a rate which in one portion, or under certain circumstances might be entirely reasonable, in another and more thickly inhabited portion, or under different circumstances, would very justly be deemed unwarrant [79] able, and evince a most reckless disregard for the rights, both of persons and property. As showing that speed alone, even although it be at an unlawful rate, is not sufficient to fix a liability for an injury, the case of Brown, Admr. v. The Buffalo and State line R. R. Co., 22 N. Y., 191, is in point. That was an action for damages caused by the killing of the plaintiff’s intestate at a street crossing in the city of Buffalo. It appeared that there was an ordinance prohibiting the running of trains within the city faster than a certain rate, with a fixed penalty for exceeding it. On the occasion of the injury complained of, the speed of the train was greater than the ordinance permitted, and the court charged the jury that this fact alone constituted negligence on the part of the railroad company, for which it was liable, if the intestate were himself without fault. This instruction the court of appeals held to be erroneous, and ordered a new trial. See also on this point C. O. R. R. Co. v. Lawrence, 18 Ohio St., 66. Another instruction given at the request of the defendant in error, we consider erroneous, in view of the conceded facts of the case. It is as follows: “If the jury shall find that the killing was done by the defendant’s employees at the time charged in the petition and through the negligence of the defendant’s employees, then the plaintiff must recover, unless the jury also find that the plaintiff was guilty of contributory negligence.” The judge of his own motion had already told the jury that if “the plaintiff permitted his cow to stray upon the railroad track in question” and while so straying received the injury, “then the plaintiff was guilty of contributory negligence, which would preclude his recovery, unless the defendants were guilty of gross negligence, which caused the injury.” And in this connection gross negligence was defined to be “the want of ordinary care.”1 The fault to be found with this charge is, first, that it submitted to the jury [80] the question of gross negligence on the part of the railroad company, of which there was, as we have seen, no-evidence whatever; and, secondly, the question of contributory negligence on the part of the owner of the cow, of which there was no doubt, he having himself testified to the very state of facts which the judge said would amount to contributory negligence, viz: permitting his cow to stray upon the railroad track, which she did on the occasion of the injury. Turning to the testimony of the defendant in error, on this point, we find the following: “I lived about two blocks away from where she was killed. She had not been in the habit of running on this ground to feed. I fed her at home. She was turned out that morning. I believe my boy turned her out, and gave her water outside. She was turned loose for water. We did that every morning. Sometimes we have a well there, but there was not, all the time, water enough in it to give water to the-cow. . The tracks was between my house and the river. She had to cross these tracks to get to the water. * * * * I did not have anybody to watch her, only the boy sometimes. This time she was within two blocks of the house, and the boy came in to get his dinner. * * * I told the boy to watch her, and I don’t know whether he was watching her or'not. At the same time it hap-pend, we was eating our dinner, and the boy was eating dinner too. All the family was in the house.” Thus it was conclusively proved by the testimony of the owner of the cow himself, that, knowing full well the great risk he ran in so doing, he actually turned her loose in the immediate vicinity of these railroad tracks, and left her to wander unattended and uncared for whithersoever she would. Such being the unquestioned facts before the jury respecting the owner’s negligence, and there being, as we have shown, no evidence of gross negligence on the part of the railroad company, the first instruction [81] requested on behalf of the plaintiff in error, viz: that on “the evidence adduced on the trial, there could be no recovery, ” ought to have been given, or a non-suit ordered. There was nothing for the jury to pass upon. For these reasons the judgment must be reversed and a new trial ordered. Reversed and Remanded.