Witherell v. Milwaukee & St. Paul Railway Co.

Berry, J. This action is brought to recover damages for the killing of plaintiff’s colt, through the alleged negligent management of one of defendant’s railroad trains. A verdict having been rendered for the plaintiff, the defendant moved for a new trial, on the ground that the verdict was not justified by the evidence, and that errors of law occurred upon the -trial, which were duly excepted to. As appears from the evidence, and is admitted by the plaintiff’s counsel, the colt was a trespasser upon defendant’s premises, and the defendant in no way responsible for his being there. The ease was tried upon the theory that after they discovered the colt upon defendant’s premises, and in peril, the defendant’s servants were guilty of negligence in so managing the train as to run upon the colt and kill it. In other words, that after such discovery they omitted to do something which they could have done with prudent reference to the safety of the train, as well as of the colt, and which, if they had done it, would have prevented the killing complained of. The rules of law applicable to a case of this kind are correctly laid down in Locke v. First Div. St. P. & P. R. Co. 15 Minn. 350, to the effect' that if domestic animals are on the track of a railroad, by the fault of the owner, such owner takes all reasonable risks of injury to them from passing trains; and that, while the railroad company is not bound to presume that such animals will be upon the track, they are not authorized to injure them wilfully or carelessly, but are bound to use reasonable care to avoid injuring them. It is further correctly held, in the same case, that by the exercise of reasonable care is meant the making of the same effort to avoid injuring an animal as a prudent man, owning both train and cattle,-would make with proper regard for both. By way of comment and explanation it may be [415] added that, considering that the owner of the cattle is at fault in suffering his cattle to go upon the track, and that the railroad company is engaged in the exercise of a lawful right, •and in the discharge of a public or quasi public duty, and considering further the relative value and importance of a train, and of the lives and limbs of the persons upon it, as compared with the value of domestic animals, a proper regard for both train and cattle would make the duty to avoid injury to the train, and those upon it, primary and paramount to the duty of avoiding injury to the cattle. As to Donaldson v. Milwaukee & St. Paul Railroad Company, 21 Minn. 293, (cited and relied upon by defendant,) it was, as distinctly appears in the opinion of the court, a case upon the facts of which there was no opportunity for negligence on the part of the employes of the railroad company after the plaintiff stepped upon the track, and in that respect the case is essentially distinguishable from the Locke case and from the case at bar, as it stands upon the evidence. From the verdict it is to be presumed that the jury were of opinion that the defendant did not in this instance exercise the care required by the foregoing rules. Upon reading the testimony, as it appears upon paper here, it seems to us that to say the least, there is a great preponderance against this conclusion of the jury — so much so that, looking at the testimony alone as it appears here, and irrespective of other considerations, we should be strongly inclined to hold that the new trial prayed for by the defendant should have been granted. But we cannot say that there is not some competent evidence having some reasonable tendency to support the verdict, and considering that the trial below was a second trial of the case; that after being charged the jury remained out all night deliberating upon their verdict; and that the court below, which had opportunities for estimating the value and weight of the testimony which we have not, denied the motion to nonsuit the plaintiff, as also the motion for a new trial, we are of opinion that the verdict cannot be disturbed for the insuf [416] ficiency of the evidence. It is not improper to add that we have arrived at this conclusion after a great deal of doubt and hesitation. The alleged errors of law in refusing the defendant’s motion to dismiss for want of evidence to make out the plaintiff’s case, and in refusing to direct the jury to bring in a verdict for defendant, are disposed of by what is said above, so far as applicable thereto. To the general charge of the court only one exception appears to have been taken. That exception, if insisted on here, is disposed of by what we have already said as to the rules of law applicable to cases of this kind. The question submitted to the .jury for a special finding, though it does not go far enough to embrace the gist of the case, was not objected to on that or any other account, but was allowed to be put to the jury as it is. The remaining alleged errors consist in the refusal of the court to give two requests made by defendant for instructions to the jury. As respects the first request, its substance is completely covered by the charge of the court. The other request is as follows, viz.: “That the defendant, as against this plaintiff, was under no obligations to set the breaks or endeavor to stop the train, until those in charge of the train saw the plaintiff’s colt on the track.” This request is clearly inaccurate, for the reason that the duty to take the precautions mentioned might arise if the colt had been seen standing near the track or approaching it; as the court below says, in its general charge, it is the discovery of the “peril of the colt” which calls upon those managing the train to take measures to prevent injury. Apart from this inaccuracy, the substance of this request is amply covered by the general charge of the court. Order denying new trial affirmed.