Granby v. Michigan Central Railroad

McGrath, C. J. Plaintiff sues to recover the value of' a colt, which was run over by one of defendant’s trains. Defendant’s right of way runs north and south through plaintiff’s farm. Plaintiff’s buildings are on the east side-of the railroad. A lane from the buildings leads to the defendant’s right of way, and at the end of the lane there is a gate, through which plaintiff drove when desirous of' reaching the portion of the farm lying west of the railroad. There is another gate in the west fence, a short-distance to the north of the first gate mentioned. Plaintiff had been pasturing his horses on the west side of the-tracks. On the evening in question, the gate in the fence-on the west side of the tracks had in some unexplained, manner been opened, and the horse in question, with others, left the field, and congregated upon the railroad right of way, near the gate at the end of the aforesaid lane. At about 6 o’clock in the evening the defendant’s, train, south bound, came along, and started the horses. They ran south on the east side of the tracks to a point, about 22 rods north of the semaphore, when the colt in. [405] question, with another, which was not the property of plaintiff, ran up and onto the roadbed, and continued to' run along and upon the roadbed, one running between the rails and the other just outside the rail, for some 44 rods, when both colts were struck and killed. The testimony tended to show that the plaintiff had exercised reasonable care respecting the gates. It is conceded that •defendant was not in any sense responsible for the presence •of the horses upon the right of way. The colt was not seen upon the right of way prior to the approach of the drain, and not from that time afterwards, before it was killed, by any one except the engineer and fireman. The facts as to the congregation of the horses at the gate, their course after the train appeared, and the distance traversed upon the roadbed, were gathered from several witnesses who had examined the ground, which had been softened by recent rains, and found clear and distinct footprints of the animals, indicating that the horses had galloped from the gate to the point where struck. The •engineer and fireman both testified that they did not see the horses until they were within 25 feet of them, and too late to stop the train. The point where the horses were struck was about one-half mile north of a station. The semaphore is located north of the point where the ■first horse was struck. The engineer says that he did not •see the horses until within 25 feet of them, because he was watching for the semaphore, and ■ that there was a ■curve and a cut. Plaintiff’s testimony tended to show a very long and gradual curve, a very shallow cut, and that •the semaphore, or a man, or a horse upon the right of way or track, at any point between the gate and the place where the horses were struck, could be readily seen for a ■distance of over half a mile north thereof. It is simply a matter of arithmetic to show that, while the horses were traveling 44 rods, the train, at the rate of [406] speed given by the engineer, would make from one-half to three-quarters of a mile. The plaintiffs contention was that the company’s servants negligently ran the horses-down after they became aware of their presence, and when, by the exercise of care, the destruction of plaintiff’s property could have been avoided. The court properly left that question to the jury. The inferences suggested or presumptions raised by the testimony as to the fact of knowledge on the part of the engineer and fireman of the-presence of the horses in a place of danger were certainly sufficient to go to the jury, and the testimony of the engineer and fireman was not necessarily conclusive. The judgment is affirmed. Long and Montgomery,- JJ., concurred with McGrath, C. J.