Missouri, Kansas & Texas Railway Co. v. McClendon , 1 Indian Terr. 537 ( 1897 )

Springer, C. J.

Several errors are assigned by th appellant in this case. But connsel for appellant state i their brief they only desire to press for the consideration c this court one, viz. “that there was no evidence to suppoi the verdict, and that the instruction asked by the defendai for a verdict in its favor should have been given. ” Th assignment makes it necessary for us to consider the test mony in the case. Appellant’s counsel have printed in the brief a synopsis of all the evidence. They certainly sta the case as strongly in their favor as the facts will admi We will quote their synopsis in so far as it relates to the li bility of the defendant company: “Paul Moffit testified < behalf of plaintiff that he lived 150 yards from the pla where the cow was killed, and saw her just as the train w knocking her off. She was struck by a loose engine. D not hear bell rung or whistle blown, or any alarm give Did not know how fast engine was running, as I never g out there to see it before it struck the cow, but when I g out there it was carrying the cow over pretty swift. ” Mi Ann Moffit testified on behalf of the plaintiff that she s£ the cow killed. Saw it struck. Whistle was not blov, Engine was running pretty fast. She happened to see t agine strike the cow, because her children called her. a answer to ‘How far was the engine from the cow lien you got there?’ she answered:

don’t know sir, how far it was. It wasn’t so far when I rst seen it. Reckon the cow was about fifty feet from the gine on track, and was “fixing to go across.” She had 't her forefeet up first when I seen her. She then got on ack, and immediately the engine got to her. ’ Jack Chambers stifled on behalf of the plaintiff: ‘When I saw her [the w] she was going down the track, and the engine was ht upon her. Saw the cow before it was struck, and while e was running, and before the engine struck her. The w was 150 yards from the engiae, coming towards me, en I first saw it. Didn’t hear any whistle blown or bell |ng. ’ On cross-examination this witness admitted that he d been arrested for stealing coal from the railroad com-ny, and said that he saw the cow running ahead of the |gine T think 20 or 30 yards,’ and that the engine was only or 30 feet from the cow when he first saw it, and that she about 30 yards before the engine overtook her.’’ This is all the testimony for the plaintiff below, the appellee in s court. The defendunt company introduced no wit-ses, but rested its case on the deposition of J. F. Reed, engineer in charge of the engine which struck the cow. deposition was given in full, and it is as follows: “On 18th day of September, 1895, at 2:20p. m., I ran over a in the vicinity of Atoka. I don’t just positively re-mber, but I think it was a black and white cow. I saw cow near the track some time before I struck her, but ed the train down, and was not running over ten miles Ihour when I struck the cow. She was not over a rail ih from the engine when I first saw her upon track. I did not see her sooner because she not on the track, but was near the track on the left side; and when the engine got upon her she went on the track, and tried to cross over. After the cow was struck, the engine was stopped dead still. Mj train was running at the rate of ten miles an hour — not anj faster — when I first saw the cow. No signals were given Did not have time to give signals before the cow was struck When I saw the cow, I applied the air brakes, and reversec the engine. The track was straight at the place where th' the cow was struck. The railroad, at the place where th< cow was struck, was through timber country. There wa no timber in the immediate vicinity of the track at the poin where the animal was struck. I was running down grade, was keeping a lookout, at the time the cow was struck, fo obstacles on the track. In this case I made an extraordh any effort to stop the engine, and did come to a full sto about a car length from where the cow was struck, aft striking her. In this case I applied all of the force to t brakes, instead of only a limited force, as is usually done stop the train, and reversed the engine. This is not usual done, as it is liable to seriously damage the engine. ” Th witness, being in the employ of the railway company, h; undoubtedly stated the facts so as to excuse his own cond' as far as possible. He speaks of “the train, ” as if the engi: was drawing a train of cars; while the fact is that there no train, only a detached engine, which could be stopp| much more easily than it could have been had a train bel attached. He was in the suburbs of the village, where t| track was not fenced, and where greater precaution is quired than at other parts of the road. Taking his evide: alone, under all the circumstances, it is not conclusiv' shown that he used reasonable and ordinary care to discos! the animal upon the track, and to avoid striking or injurij it. He says: “My train was running at the rate of miles an hour — not any faster — when I' first saw the cow. signals were given. Did not have time to give any sign) )efore the cow was struck. ” Before making this statement, íe said, ‘ ¡I saw the cow near the track some time before I ' truck her.” Jack Chambers testified for the plaintiff that Le saw the cow running ahead of the engine 20 or 30 yards, ind “that she ran about 30 yards before the engine struck er.” There is a direct conflict between the testimony of leed and Chambers. If Chambers ’ statement is true, there ras plenty of time to blow the whistle and to stop the engine efore the animal was struck, especially if the engine was nly running 10 miles an hour when Reed first saw her. Seed testified that he saw her near the track. He must lave seen her when she was on the track. Chambers tes-lfi.ed that she was running ahead of the engine, and that she m about 30 yards before the engine struck her. That ould allow 90 feet in which to stop an engine running 10 iles an hour. It requires but a casual examination of the ¡stimony in this case to demonstrate: First, that there is ridence in the record tending to show that the employe of Le defendant, the engineer, having control of the engine, iled to exercise reasonable care to discover the animal up-i the track, and to avoid-striking it or injuring it after it as observed; and, second, that there is a conflict in the stimony in the case upon the facts relating to the exercise reasonable care or to the negligence and carelessness of e defendant’s employe in managing the engine at the time e injury complained of was inflicted. In all cases where ere is evidence in the record which tends to show the baity of the defendant for the injury committed, and where ere is a conflict in the testimony as to the material facts in a case, it is the duty of the trial court to submit the case to 3 jury. The court therefore properly overruled the motion appellant’s counsel to instruct the jury to return a verdict ■ the defendant. The court, having refused to take the se from the jury, instructed them upon the law of the case follows: “The duty was not imposed by law upon the railway company to fence its track in order to keep animal off it, and the failure to fence its track would not be agroun for recovery in this action. The fact that it killed tb animal, if it did do so, would not be a ground for recoven The ground alone upon which the plaintiff can recover the negligence of the defendant’s employes operating r engine in failing to use reasonable and ordinary care to di cover the animal upon the track, and to avoid striking it ( injuring it. Reasonable care is that care which an ordinal prudent person would use under like circumstances, andwil like agencies. If you believe from the evidence that by re son of the failure of the defendant’s employes to exerci reasonable care to discover the animal upon its track, and avoid striking it or injuring it by slacking the speed of : train, or stopping it, or by giving alarm signals, and by t reason of the lack of such care in these particulars theinjul resulted, and that it would not have resulted but for t| failure of the defendant’s employes operating the engine exercise reasonable care, as I have defined it to you in the particulars, then your verdict should be for the plaintiff, you find that the engineer or the employes operating train were not negligent, and that there was not a failure exercise reasonable care to discover animals upon the trac and to avoid striking them by slacking the speed of the tr or giving alarms, then your verdict should be for the defei ant. The burden is upon the plaintiff to establish its ri§ to recover in this case by a preponderance of the eviden Your verdict should be for the party in whose behalf evidence, in your judgment, preponderates upon the iss submitted to you. If you find for the piaintiff, you sho find for the reasonable value of the animal at the time it ■ killed. If you find that the engineer in charge of the fendant’s engine at the time in question failed to' ring bell or whistle or give other alarms, that fact alone wo not warrant you in finding for the plaintiff unless you hat the failure to exercise such care as a reasonable prudent ían would have exercised under such circumstances as the vidence shows to have existed, and unless you further find bat such failure was the proximate cause of the injury to ae animal, without which it would not have occurred. ” In iew of the testimony in the case, we find no error in the in-tructions, nor in the court’s refusal to instruct the jury to eturn a verdict for the defendant. The judgment of the mrt is affirmed.

Clayton and Thomas, JJ., concur. Townsend, J., at being present, did not participate.