
    [No. 5464.] [No. 3134 C. A.]
    The Rio Grande Western Railway Company v. Boyd.
    1. Practice in Civil Actions — Killing Animals- — Questions for Jury.
    In an action for tile value of an animal killed, at a railroad crossing, where the evidence is- conflicting, the question of whether the engineer and fireman exercised the necessary care to ascertain if an animal were approaching the crossing, is for the jury. — P. 122.
    2. Practice in Civil Actions — Railroads—Killing Animals — Presumptions — Burden of Proof.
    The fact that plaintiff, suing for the value of an animal killed at a railroad crossing, in making his case did not alone rely on § 5 of the Stock Act (Sess. Laws 1902, c. 1), creating a presumption of negligence from the killing, hut also introduced evidence of the negligence of the engineer and fireman, did not change the rule of burden of proof. — P. 123.
    3. Railroads — Killing Animals — Duty of Engineer.
    Merely because an animal may be near the track does not require an engineer to check the speed of his train unless there is something to indicate that the animal may go on the track. —P. 124. . '
    4. Same.
    A train was running at a high rate of speed, taking but a few seconds to traverse a quarter of a mile, and killed an animal at a road crossing. Held, that, when the train was a quarter of a mile from the crossing, the animal must have been near and walking toward it; and, if so, under the circumstances, could have been seen by the engineer or fireman, and therefore there was sufficient to apprise them of the danger of the animal going on the crossing. — P. 124.
    5. Evidence — Opinion Evidence — Admissibility.
    In an action for the value of an animal killed at a railroad crossing, a witness familiar with the surroundings was properly permitted to state, over an objection that it called for the opinion of the witness on a matter as 'to which the jury could as well draw its own conclusion, how far oh the track from the crossing he could see an animal in the highway approaching it. — P. 125.
    6. Practice in Civil Actions — Railroads—Killing Animals — Evidence — Sufficiency.
    In an action for the value of an animal killed at a railroad crossing, the plaintiff testified that he could not give the name of the person on whom he served notice that the animal had been killed, but that he answered “as the ticket agent of the railroad company at its depot. Held, that the evidence was sufficient to establish that the person served was the ticket or station agent of the railroad company, so as to meet the requirements of § 6 of the Stock Act (Sess. Laws 1902, c. 1), providing for notice to the ticket or station agent of the railroad company. — P. 125.
    7. Practice in Civil Actions — Instructions Covered by Those Given.
    Requested instructions are.properly refused where covered by instructions given.- — P. 126.
    8. Railroads — Injuries to Animals — Contributory Negligence of Owner.
    Where an engineer and fireipan, by the exercise of proper care, could have discovered an animal at a crossing and slackened the speed of the train in ample time to have prevented killing it, their negligence was the proximate cause of the killing, and whether the owner was guilty of contributory negligence in turning the animal out on the highway in such close proximity to the crossing, was not involved. — P. 126.
    
      Appeal from the County Court of Mesa County. Eon. Walter 8. Sullivan, Judge.
    
    Action by William Boyd against The Bio Grande Western Bailway Company. From a judgment for plaintiff, defendant appeals.
    
      Affirmed.
    
    Messrs. Sutherland, Van Cott & Allison (Mr. Wm. N. Vaile, of counsel), for appellant.
    Mr. Henry H. Rhone, for appellee.
   Mr. Justice Gabbert

delivered the opinion of the court:

This is an appeal by The Bio Grande Western Bailway Company from a judgment in favor of appellee for the value of a cow belonging to him, which was killed by the railroad company. The basis of the claim of appellee is that the cow was killed by the negligence of the employees of- the company.

Section 5 of the Stock Act (Session'Laws 1902, p. 25) provides:

"The killing or injury of any animal or animals by a railway company or corporation shall be prima facie evidence of the negligence of said railway company * *

The railroad track at the point where the cow was struck runs nearly east and west. The plaintiff lives about two hundred yards 'north of the track. In front of his house, running north and south, is a wagon road, which crosses the railroad track approximately at right angles. It was on this crossing where the cow was struck by a train approaching from the west. There is no question but that the cow was killed by being struck by a locomotive Operated by tbe defendant company, but counsel for tbe railroad company contend that the evidence is insufficient to support tbe verdict and judgment rendered thereon, in that tbe prima facie case made by plaintiff by showing that tbe cow was struck by tbe engine, was overcome by evidence which established that tbe defendant company was not guilty of negligence. It is true that tbe testimony of tbe engineer and fireman operating tbe train is to tbe effect that they did not see tbe cow until she stepped upon tbe crossing; that at this time tbe engine was not more than fifty feet from her; that tbe train was running at tbe rate of about fifty miles an hour on a slightly down-grade, and that it was impossible to have stopped tbe train under about a quarter of a mile; and that on account of obstructions along tbe highway over which tbe cow traveled to reach tbe crossing, it was not possible for them to see her until she stepped upon tbe track. But this testimony was contradicted by testimony on behalf of tbe plaintiff, which was to tbe effect that an animal tbe size of a cow could have been seen by tbe engineer and fireman within half or three-quarters of a mile of tbe crossing at any point on tbe wagon road between four hundred feet north of tbe crossing, and tbe crossing.

• In this state of tbe evidence it was for tbe jury to determine whether or not tbe fireman and engineer bad exercised tbe necessary degree of care to ascertain if an animal were approaching tbe crossing over which tbe locomotive would shortly pass. Had there been no testimony offered on behalf of tbe plaintiff except that' which established that tbe cow bad been struck by tbe engine, then tbe testimony on behalf of tbe defendant company would have been sufficient to have overcome tbe prima facie case made by the plaintiff by virtue of tbe provisions of tbe statute quoted; but, as we have pointed out, the testimony introduced by the defendant to show that the killing of the cow was not caused by the negligence of the company was contradicted by direct and positive evidence that its employees were negligent; and as this conflict was resolved by the jury in favor of the plaintiff, it cannot be disturbed on review.

Counsel have presented an interesting argument on the subject “Burden of Proof,” which, however, we do not think it is necessary to consider further than to say that the burden of establishing negligence of the defendant was upon the plaintiff, and there being a conflict in the. testimony tending, on the part of the plaintiff, to directly prove acts which would constitute negligence of the defendant at common law, and on behalf of the defendant that it's employees were not negligent, it was for the jury to determine which witnesses testifying on the subject were telling the truth, and render a verdict accordingly. It appears that plaintiff did not rely upon the statute alone in making his case in chief, but, in addition to proving that the cow was killed by being struck by the engine, introduced evidence to affirmatively establish the negligence of the engineer and fireman in operating the train; but this does not in any manner change the rule of the burden of proof in the case at bar. Plaintiff, in making his case in chief, could rely upon the statute and introduce only such evidence as was necessary to make a prima facie case of negligence against the defendant thereunder, or he could prove such facts as, at common law, would constitute negligence on the part of the defendant.—Colo. Central R. Co. v. Caldwell, 11 Colo. 545. By pursuing the latter course, and the defendant having introduced evidence to prove that the engineer and fireman were not negligent,, the case stood for the jury to determine who was to be believed. True, as we have already stated, the burden rested with the plaintiff to establish the negligence of the defendant, but the jury having determined from conflicting testimony that the engineer and fireman were negligent, has determined that the plaintiff sustained the burden which the law imposed upon him.

Plaintiff was asked whether a person upon the track could see an animal approaching the crossing’ for any considerable distance. It is urged that this question was objectionable, for the reason that even though the engineer might have seen the cow near the track, he was not obliged to slow down his train in anticipation that the animal would go on the crossing in front of the engine. Merely because an animal may he near the track of a railroad does not require an engineer to check the speed of his train unless there is something to indicate that the animal may go upon the track.—Wilburn v. H. & St. J. Ry. Co., 21 Mo. App. 426; Young v. H. & St. J. Ry. Co., 79 Mo. 336; N. O. R. R. Co. v. Bourgeois, 66 Miss. 3.

In the present case the jury necessarily found from the testimony that the cow of plaintiff could have been seen by the engineer or fireman when the engine was upwards.of half a mile distant from the crossing. The train was running at a high rate of speed. It would take it hut a few seconds to traverse a quarter of a mile. When the trajín' was that distance from the crossing, the cow must have been near and walking toward it; so that, in the circumstances of this case, there was sufficient to apprise the engineer and fireman that there was danger of the cow going upon the crossing.

A witness oh behalf of plaintiff was asked how far west of the crossing he could see an animal in the highway approaching it. This question was objected to, because it is claimed that it calls for the opinion of the witness upon a conclusion that the jury should come to for itself from all the testimony concerning the topography of the country at the crossing. The objection is not tenable. True, the jury could determine from the evidence relating to the elevation of the track and the highway,, and other matters bearing upon the topographical surroundings, from what distance west of the crossing an animal.could he seen on the highway, hut that was not the only competent testimony from which to determine this question. The distance an animal could he seen at or near the crossing from a point on the track west of the crossing was a fact to which a witness could testify who was familiar with the surroundings.

The Stock Act requires that the owner of an animal killed by a railroad company shall, within a specified period, deliver a- notice to the ticket or station agent of the railroad company. It is urged by counsel for the railroad company that the evidence on behalf of the plaintiff that such notice was delivered is not sufficient to establish that the person to whom it was delivered was the ticket or station agent of the railroad company. We do not think there is any merit in this contention. Plaintiff testifies that he could not give the name of the man on whom he served the notice, hut that he answered as the ticket agent of the defendant company at its depot in Grand Junction.

Other errors aré assigned to the rulings of the court upon the admission of testimony which are so clearly without merit that it is not necessary h> discuss them in detail.

Errors are assigned upon the instructions given. So far as such instructions are concerned, we think it is sufficient to say that in our opinion the ease was fairly submitted to the jury upon the issues which it was their peculiar province to pass upon and determine.

The instructions requested and refused appear to have been embraced in those given; consequently, there was no error in such refusal.

The final question to consider relates to the contention of counsel for- defendant, that plaintiff was guilty of contributory negligence in turning his cow upon the highway or common in such close proximity to the railroad track or crossing where she was killed. "We do not think this question is involved. From the testimony, in view of the verdict of the jury, it appears that the employees of the defendant company, by the exercise of a proper degree of care' upon their part, could have discovered the cow and slackened the speed of the train in ample time to have prevented a collision at a public crossing. In such circumstances it was their negligence which was the proximate cause of the collision; and hence, the alleged antecedent negligence of plaintiff is not involved.

The judgment of the county court is affirmed.

Affirmed.

Chiee Justice Steele and Mr. Justice Campbell concur.  