Stoeber v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Co.

Robinson, J. This is an action to recover from defendant for the negligent killing of several horses while trespassing on its right of way. The verdict was for $980. Defendant appeals from the judgment and from an order denying a motion for a new trial or a judgment notwithstanding the verdict. One horse was run into and killed February 4, 1916, and for this [124] the defendant has offered to pay $150, the full value and a little more than the value of the same. Six horses were run into and killed by a passenger train on March 31, 1916, at 6:40 a. m. The question is one of negligence. The railway runs through the plaintiff’s farm. His buildings are about a quarter of a mile north of the track. The railway has been fenced with gateways opposite a private crossing of the defendant. The gateways he failed to keep closed. He failed to keep his horses in the stable, where they should have been at 6:40 a. m., and by negligence he permitted them to break away, run through the gates which were left open, trespass on the right of way, and get killed. This contributory negligence of the plaintiff is clear and certain. In regard to the neglect of the defendant it is fairly conceded that at the time of the accident the headlight on defendant’s locomotive was of only 600 candle power, when the statute required a headlight of 1,200 candle power, and it is contended that with a legal headlight the engineer would have seen the horses in time to stop the train. However, it does appear that in crossing the plaintiff’s farm the road runs through a depression or valley, and that at the time of the accident a fog in the valley was so dense that it was opaque, — much the same as a dense fog arising from the steam of a locomotive. The testimony clearly shows that the lack of powerful headlights was not the proximate or real cause of the accident, and that no headlight would have been sufficient to penetrate the fog and discover the horses in time to stop the train. It is shown that at the time of the accident the engineer was making a vain attempt to look through the fog, yet that fact is wholly immaterial. In this state the law is well settled by repeated adjudications that railway companies are not required to keep a lookout from their locomotives for stock trespassing on their right of way outside of public crossings, depot grounds, and similar .places. That in such a case as this the killing of stock trespassing on a railway track is negligence of the company only after the discovery of the stock in a place of danger. Reinke v. Minneapolis, St. P. & S. Ste. M. R. Co. 23 N. D. 182, 135. N. W. 779; Corbett v. Great Northern R. Co. 19 N. D. 452, 125 N. W. 1054. Clearly at the time of the accident when the horses should have been in their stable the defendant was under no obligation to keep a lookout for the horses, and a lookout would have been of no [125] avail even with the most powerful headlight. The statute makes the killing of animals by a railway company presumptive evidence of negligence; but when as in this case the facts in regard to the killing are put in' evidence the presumptions of the statute do not apply. The proved facts clear away and suspend all presumptions. The whole defense and the expenses of the litigation have been on the claim for the killing of the six horses on March 31, 1916, and not on the killing of the one horse for which the defendant offered to pay $150, which was more than its value. Hence, it is ordered and adjudged that on payment, of said $150 to the clerk of the court for the use of the plaintiff, the District Court shall enter judgment in favor of the defendant notwithstanding the verdict.