
    SAMUEL ERICKSON v. CHICAGO GREAT WESTERN RAILROAD COMPANY.
    
    December 22, 1911.
    Nos. 17,324—(143).
    Railway — verdict sustained lby evidence.
    The switching of freight ears across a street turned plaintiff’s horses in their runaway flight, and in turning back one was killed and the other injured by an approaching train on another track. Action for damages claimed to be due to defendant’s negligence.' Verdict in favor of defendant, and appeal from an order denying a new trial. Held: The evidence justified a finding that defendant was free from negligence either in the operation of its train at an excessive speed or in failure to keep a proper lookout for persons or animals near the track. There was no reversible error in the charge. [Reporter.]
    Action in the district court for Dodge county to recover $345 damages for the killing of one of plaintiff’s horses and the injury to another horse and other property by the negligent operation of defendant’s train. The answer admitted that as the team approached the crossing certain ears were moved thereon from the north, so that the progress of the team on reaching the track was impeded. It admitted further that a passenger traih was at that time approaching from the south at a speed not to exceed ten miles an hour, and that the team and train collided; denied that, during the time the persons on the engine had a view of the team, any circumstance was apparent which gave notice of the necessity of stopping the train until, after having passed over the track so as to be out of danger, the team suddenly turned and ran into the train; denied that the train was more than two hundred feet from the crossing when the team first crossed ahead of the train; admitted the track was straight, but denied that it was possible to have a view of any situation which would have warned them that the team might suddenly return so as to be struck by the train. The case was tried before Childress, J., and a jury which returned a verdict in favor of defendant. From an order overruling plaintiff’s motion for a new trial, he appealed.
    Affirmed.
    
      8. L. Pierce, for appellant.
    
      Briggs, Thygeson & Bverall and H. Loomis, for respondent.
    
      
       Reported in 133 N. W. 1133.
    
   Per Curiam.

Plaintiff, residing near Hayfield, a village through which defendant operates a l-'ne of railroad, drove into town with his team of horses. At about seven o’clock in the evening, and about dark, the horses were hitched to a post in front of a place of business upon one of the village streets. The horses broke from their fastenings and ran away. They ran down Broad street, over and across which several of defendant’s railroad tracks extend. A through passenger train was approaching this crossing at the time. The horses passed all the tracks on the street mentioned save the last, which was blocked and further passage prevented by certain freight ears which at the time were being switched by railroad employees. Upon reaching this obstruction the horses turned around and started back in the direction from which they came, and were struck by the incoming train. One of them was killed, the other injured. Plaintiff sued for damages, charging the death and injury to his horses to the negligence of defendant. Defendant had a verdict and plaintiff appealed from an order denying a new trial.

A careful examination of the record leads to an affirmance. The evidence fully justified the jury in finding defendant free from negligence either in the operation of the train at an excessive rate of speed, or in the failure of its employees in charge thereof to keep a proper lookout for persons or animals likely to be near or upon the track. The charge of the court complained of was in harmony with the evidence, fairly considered, and the exception thereto presents no reversible error.

Order affirmed.  