Kansas City, Memphis & Birmingham R. R. v. Doggett

Woods, C. J., delivered the opinion of the court. The killing of the stock, as alleged in the declaration, was proven, and was admitted by the appellant, on the trial below. The value of the stock was also proven. The prima facie case for the plaintiff, under our statute, was thus made out, and it then became incumbent on the railroad company to relieve itself from liability by showing circumstances of excuse or justification for such killing. Responding to this requirement, the railroad produced as witnesses the conductor and engineer of the train which caused the injuries complained of, and by them showed that they first saw the stock when they were running by Miller’s station; that the stock were 35 or 40 feet distant, and between the roadbed and a fence which ran parallel with the track of the railroad from that point until it reached a point opposite the trestle, where the stock was injured and killed, where the fence made a right angle, ran to and was joined upon a post in the trestle; that the stock first ran towards the train, but turned and ran diagonally across towards the fence, and then turned up the fence and followed it around to the track, where they jumped on it, immediately in front of the train, and so received their injuries; that as soon as the stock was seen brakes were applied, signals sounded, and every effort used to prevent an accident; that the train was composed of sixteen cars, loaded with pig-iron, and the engine was carrying 160 pounds of steam; that it could not have been stopped under 500 feet, and that the distance from the station, when the stock was first seen, to the trestle, where the accident occurred, was only about 200 feet. [254] If the evidence had ended here the railroad company would have relieved itself of liability clearly; but the plaintiff further showed that the distance from the station to the trestle was about 336 feet; that from Coldwater river, a half mile below the station, to the trestle and much beyond, the grade is so heavy that trains often have difficulty in going over it, and that, now and then, trains are compelled to drop some of their cars at Miller’s and make two trips before getting over the grade; that the tracks of the animals, fresh, and running directly upon the track from Miller’s to the trestle, were seen very quickly after the accident. This testimony, thus affecting the evidence of the conductor and engineer, was held by the court below sufficient to warrant it in refusing a peremptory instruction to the jury to find for the defendant. The conflict in the evidence was thought to be referable properly to a jury for its determination upon the facts. In this view we concur. The 4th instruction for plaintiff was not improperly given. The evidence of the witness box shows that the tracks of these animals were seen, directly after the injuries, running down the track for about 300 feet, to the trestle where they were caught. The counsel for appellant insists that the witness did not mean this. We can only reply, that, as it is so written in the record, we feel bound to adhere to it, and to give it its natural meaning. In view of this testimony, the instruction rightly submitted the settlement of the discrepancy to the jury. It is urged upon us that the verdict, in the amount of damages awarded, is unsupported by the evidence. This is true, if a verdict for $175 only, is unwarranted where the evidence shows the damages to have been $275; and it may be matter of regret that the jury did not do its full duty, as they adjudged the facts, and give the plaintiff more than the sum named in their verdict. But as the plaintiff, against whose interest the error was committed, makes no complaint, we do not see how we can reverse the judgment on this ground, at the suggestion of the party who is shown not to be wronged or injured thereby. This is one of the many unsatisfactory causes which, on their [255] facts, peculiarly belong to the province of the jury, and is one we would be slow to disturb because of any supposed errors in the findings as to facts. We cannot say there is no evidence to support the verdict; we could not have said the verdict was unsupported by evidence if the jury had found for the defendant. Affirmed.