Brown v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Co.

180 N.W. 792, 46 N.D. 582, 1920 N.D. LEXIS 72

• Court: North Dakota Supreme Court
• Decided: November 13, 1920
• Status: Published

Opinions

Robinson, J.

This is an appeal from a judgment against the Director General of Railroads and the railroad company for $500 and interest, as the value of four poor, senseless horses that were turned out on the prairies in the zero months of January and February, 1918, to live or die, survive or perish. It was on a zero'night in February, at a time when all good and valuable horses should have been at home and in bed, that the poor, senseless animals were killed. And, under the circumstances, who will blame the animals or reflect on their intelligence if they deliberately committed suicide by running across the railway in front of a train running at 50 miles an hour? All their troubles and starvation was ended in a moment.

The judgment is against the railway company and the Director General, and the appeal is only by the company, and yet before trial it was stipulated that the Director General should be substituted as defendant in lieu of the company. The verdict is for the plaintiff, but does not specify that it is against either defendant. For that reason alone, it seems the judgment should be reversed.

The complaint is based on negligence. It is for the negligent killing of the horses, and the statute makes the killing prima facie evidence of negligence. In the absence of any proof, except the killing, the law presumes negligence, but when the facts and circumstances are proven, then the presumption no longer prevails. Then the case must be decided on the evidence, and the burden of proof is on the plaintiff. At the time of the killing the train consisted of seven coaches. It was running northwest from AYyndmere on schedule time at about 50 miles an hour. It was a first-class train, and it was well equipped with all modern 'appliances and safeguards, and with a bell which was rung automatically and continuously when the train was in motion. By statute it is provided that a bell, at least 30 pounds in weight, or a steam whistle, shall be placed on every locomotive engine, and shall be rung or the whistle blown continuously for eighty rods prior to any road crossing, under a penalty of $50 and all damages for any negligence. Comp. Laws, § 4642. The negligence imputed to the defendant is a failure to ring the boll continuously for SO rods prior to the road crossing and a failure to keep a continuous watch for animals on the track. On these points the evidence seems to preponderate in favor of the defendant. The engineer swears that he had a good headlight and was careful to keep a lookout for animals on the track. Of course he could not be expected to keep his mind and his eyes at all times fixed on the track, as the monotony might drive him to insanity or insensibility. He testifies that on the train there was an automatic contrivance to keep the bell ringing while the train was in motion and that he did not turn it on and off,—and that part of the testimony is highly credible, as it was much easier to keep a continuous ringing than to turn it on and off' every moment. To show that the ringing was not continuous, counsel for plaintiff stated on his argument: “I have ridden tens of thousands of miles on railway trains, and I never rode on- a train where the bell was rung all the time. And you, gentlemen of the jury, never did and Mr. Wolfe never did.” To that statement objection was promptly made, and it was withdrawn, and the court instructed the jury to disregard it except as it is brought out by the evidence in the case. The jurors were not told to entirely disregard the prejudicial statement, and even had they been so directed, the effect might not have been removed. The mind is not a machine to undo' all impressions at the direction of a judge. The statement was probably true, though highly misleading and prejudicial, and it would naturally impress the mind of the jurors because the contrivance for ringing a bell is new and it is not used only on the mile a minute train. To prove that the bell did not ring continuously, two witnesses were called, who, against objection, testified that when working near the track in the daytime they did not hear the bell ringing at all, except once. J3ut the fast train, when on schedule time, was not on the track in the daytime, and of course the other passenger trains did not have a continuous bell ringing. Hence the admission of such testimony was error. However, there is no evidence or presumption that the ringing of the bell would have frightened the horses away from the track or from going upon the track. The evidence rather shows that, as the train approached, the horses were not on the track, but that the ringing of the bell and the noise of the train frightened them, and they attempted to run across the track. One horse was nearly across when struck; two horses were on the center of the track and one was just coming onto the track. Had the train passed without making any noise, the chances are that the horses would not have been killed or injured.

Of course the value of the horses was a material question. Elmer Brown, a son of the plaintiff, was called and testified to their value, and condition. Then, on cross-examination, he was asked:

“Q. Had not the horses been permitted to run at large on the prairie for a greater part of the time during the winter before the killing

“Q. When did you see the horses last before the accident ?”

“Q. Had you anything to do with the care of the horses ?”

The court erred in sustaining an objection to those questions, as their manifest purpose was to show the competency of the witness and the value of the animals. Horses that are turned adrift on the prairie in the months of January and February to live or die, survive or perish, and to keep from freezing, are not like horses that are kept in a warn stable and fed hay and oats. Good, valuable horses are not kept in a cruel and careless manner, adrift on the prairie in January and February.

The majority of this court are of the opinion that prejudicial error occurred in the admission of testimony by witnesses that they did not hear the train bell ringing while working near the track. Although the parties stipulated before the trial that the Director General should be substituted as a defendant in this action, nevertheless, the judgment, as in fact entered pursuant to the verdict, was against both the railway company and the Director General. The appeal was argued on the merits. When, on oral argument, a member of this court suggested that the defendant railway company was really not a party, counsel for both sides immediately disclaimed any desire that the manner in which the verdict was returned, or the appeal taken, should, in any way, affect the consideration and determination of the merits of the appeal. In view of the manner in which the case was handled in both courts, we believe it would be unjust to treat the case as one against the Director General alone, and the appeal as one taken by the railway company from a judgment entered against it through inadvertence. To so treat it would bo to ignore the intention of the parties. The judgment and verdict should be construed as entered and as treated by the parties. As actually entered, the judgment is in such' condition that its reversal as to one party should ordinarily occasion a reversal as to the other. See § 7841, Comp. Laws 1913; 3 C. J. 1007; 4 C. J. 1184, 1206. It is therefore ordered that the judgment be reversed, and a new trial granted to the Director General, and that the action be dismissed as to the railway company. All costs to abide the final determination of the case.

Christianson, Ch. J., and Birdzehl and Bronson, JJ., concur.