Grahlman v. Chicago, St. Paul & Kansas City Railway Co.

Beck, J. I. The evidence tends to support the allegations of the petition to the effect that the horses of plaintiff killed by the railroad train went upon the track over a cattle-guard, which was filled with snow so packed as to enable the horses to cross the cattle-guard and reach the track. It is alleged that the snow, through negligence of defendant, was permitted to accumulate in and upon the cattle-guard. i baiksoadsstool? Hattie guard filled with snow: duty of com-II. The defendant asked instructions to the effect that defendant was not required to exercise any care or diliSeace keeP i*s cattle-guards free from snow’ and that, if the horses of plaintiff were enabled to enter the railroad track of defendant by reason of snow m the cattle-guard, it is not liable in this action. These instructions were refused, and an instruction in the following language was given: “If you find that the cattle-guard was packed full of snow, you will carefully inquire whether this condition was the fault of the [566] defendant. The law did not require the defendant t<> keep its cattle-guards free from snow, regardless of circumstances, ' but did require the defendant to use ordinary care and diligence to do so. If such care was used, the defendant did its whole duty; otherwise not. The defendant was not required to excavate the snow from the cattle-guard unless it had notice that it was filled, or unless it might have had such notice by the use of ordinary care in looking after its road; and after such notice the law would give the defendant a reasonable time and opportunity to make the proper excavation before it would hold the defendant liable for the omission. Nor would the law require the defendant’s servants to expose themselves to extreme cold, or hard storms (in which the ordinary man would not regard it safe to work), in order to remove snow from a cattle-guard.” III. It will be observed that the instruction given requires the defendant to use ordinary care and diligence to keep the cattle-guards free from snow. Surely defendant, in the operation and management of its road, can omit nothing, which may be accomplished by the exercise of ordinary care and diligence, that will protect-property in any way exposed to dangers in the operations of its trains. If the snow could have been removed from the cattle-guards, or its accumulation there-could have been prevented by the exercise of ordinary care and diligence, it cannot be claimed that it was not defendant’s duty to remove the snow, or prevent its accumulation. Indeed we cannot imagine a thing can be done, in the exercise of ordinary care and diligence, that removes or prevents dangers arising from the operation of defendant’s railroad, which it is not its duty to do. We think this proposition no one will attempt to deny. The same rule is applicable alike to the transactions of individuals and corporations, and lies at the very base of the doctrines of the law, which hold the negligent liable for the consequences of- their negligent acts. If the exercise of care may be omitted when it would prevent injury to another, there can be no [567] liability for negligence. These conclusions are not in conflict with Patten v. Railway Co., 75 Iowa, 459. That case holds that a railroad company was not liable absolutely for failure to build its fences higher than the snow, and failure to remove snow drifts. No question of the obligation of the company to exercise ordinary care and diligence is in that case. We rightly held that the company was not liable on account of snow drifts, which enabled livestock to cross its fences. We did not hold, for the question was not in the case, that it was not the duty of the company to exercise ordinary care and diligence to prevent or remove the snow drifts. Blais v. Railway Co., 34 Minn. 57; 24 N. W. Rep. 558, cited by defendant’s counsel, is directly in accord with the views we have expressed. ' —eviIY. The plaintiff was permitted to prove that, during the winter, and after the accident, the cattle-guards were filled with snow. The admission of this evidence is now made the ground of complaint. In connection with the evidence, it was shown that defendant made no attempt to remove the snow. These facts together tended to show a failure to exercise any diligence or degree of care, and were.compétent for that purpose. But, should it be assumed .that the evidence is not pertinent or competent, we fail to discover any. prejudice resulting to defendant from its admission. , he sam . Y. Questions were asked a witness as to the time usually required to fill a cattle-guard with snow. The question sought to elicit opinions rather t]laIL fac-fcg) ancli for that reason, the court correctly refused to permit answers thereto. YI. We think the verdict does not so lack support of the evidence as to require us to interfere. The judgment of the district court is Appiemed.