Lynch v. Northern Pacific Railroad

Cassoday, J. The train consisted of engine, tender, baggage car, mail car, and five coaches. The engineer testified that his running time between New Richmond and Jewett’s Mills — a distance of five miles and a fraction over — was ten minutes; that at the time in question his train was late, and hence he was running between thirty and thirty-five miles an hour. The plaintiff’s witnesses give it as their opinion that the train was running from ten to fifteen miles per hour — the most of them fixing it [351] at fifteen. They also testified to the effect that the engineer applied the air brake so far from the crossing that the speed of the train was perceptibly slackened at a point thirty to thirty-five rods west of the crossing; that the train then increased.its speed to about its former rate, and continued that rate until just previous to the time of reaching the crossing, when it slackened up so as to come to a complete stop on the crossing, near where it struck the •hind horse and broke his leg. The engineer testified to the effect that he first saw the horses after he had blown the whistle for the crossing, just after passing the plaintiff’s house; that they were then in the field, capering around; that he did not pay much attention to them for that reason, until he saw they were determined to go down the road and across the track ahead of the train, and then he opened the cock and blew the stock alarm whistle, and tried to scare them off, and when he saw he could not do so, he applied the air brake, and did not release it until the engine came to a dead stop on the crossing. The plaintiff and the three of his witnesses seemingly most relied upon were at the time of the accident from 135 to 150 rods west of the crossing, and much of their testimony was necessarily a matter of opinion. The other two of them were from thirty-five to forty rods northerly or northwesterly from the crossing, and of course their testimony is more reliable, but they do not differ very materially from the engineer and the defendant’s other witnesses. The engineer may well have supposed that the horses would finally pass into the open field south of the highway, instead of attempting to cross the track at such an acute angle and immediately in front of the engine. Of course he could not know whether they would turn into the open field or continue on the highway, until they got quite near the crossing. That he tried to avoid injuring the horses is manifest from the fact that the train came to a dead stop just as the en [352] gine reached the crossing where it struck the hind horse and broke his leg. Tiewing the evidence in the most favorable light for the plaintiff, still we are constrained to hold that there is no sufficient evidence in the record to sustain the findings that the engineer was guilty of gross negligence. In fact the jury expressly exculpated him from wilfully, maliciously, or intentionally injuring either of the horses. The evidence is less favorable to the plaintiff than in Jones v. C., M. & St. P. R. Co. 77 Wis. 585. There is no evidence of such rashness or wantonness in his conduct as to constitute gross negligence. He certainly was authorized to exercise some discretion in the choice of the different courses of action open before him. Schultz v. C. & N. W. R. Co. 44 Wis. 638; Gumz v. C., St. P. & M. R. Co. 52 Wis. 679; Berg v. Milwaukee, 83 Wis. 599. As to the other horse, which ran ahead along the right of way for nearly a mile, and then got tangled in the bridge, there is no pretense that he was touched by the train at all. He got onto the right of way from the highway by jumping over the cattle guards, and the only finding of negligence in respect to that horse is that the engineer failed to stop the train before it came onto the crossing; in other words, the only ground for recovery as to that horse is that the train frightened the horse, and he ran and got tangled in the bridge, and was thereby injured. Such mere fright cannot, however, be properly regarded as the proximate cause of the injury, nor a basis of recovery. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.