
    Lewis v. Fremont, E. & M. V. R. Co.
    1. The exercise of reasonable care to prevent injury to trespassing animals discovered upon a railway track relieves the company from liability in case such animals are struck by a passing train.
    2. A motion for the direction of a verdict in favor of the defendant at the close of all the testimony should be sustained, although the killing is admitted, when the statutory presumption of negligence arising therefrom has been clearly overcome by the undisputed evidence. • - '
    (Syllabus by the Court.
    Opinion filed June 15, 1895.)
    Appeal from circuit court, Pennington County. Hon. William Gardner, Judge.
    Action to recover damages for killing a horse. 'Plaintiff had judgment, and defendant appeals.
    Bever-sed.
    The facts are stated in the opinion.
    
      James W. Fowler, for appellant.
    Where a railway is shown to have fully complied with the statute as to the running of its train, the burden of proof is upon the plaintiff to show by a preponderance of evidence that the damage was done by the gross negligence of the railway or its employes. Yolkmann v. Bailroad, 5 Dak. 69; Gay v. Bailroad, 5- Id. 514;. Wainscott v. Bailroad,-3 Bush. 149; Packwood v. Bailroad, 7 A. & E. By. Oas. 584; Talbott v. Kentucky, 78 Ken. 621; 7 Am. & Eng. By. Cas. 585; Huber v. Bailroad, 6 Dak. 892; Hodgins -v. Bailroad, 56 N. W. 139; Hebron v. Bailroad, 4 S. D. 538. An owner of stock in permitting them to trespass upon the .railroad’s right of way takes upon himself the responsibility for any loss occasioned thereby. Williams v. Bailroad, 3 Dak. 168; Maynard v. Bailroad, 115 Mass. 460; Darling v. Bailroad, 121 Id. 121; Lock v. Bailroad, 15- Minn. 362. Where a verdict is not supported by the evidence it should be set aside on appeal. Abbott v. Bailroad, 16 N. W. 266; Bogslad v. Bailroad, 17 Id. 287; Darey v. London, 14 A. & E. By. Cas. 650; Mantel v. Bailroad, 19 Id. 362; Cad waller v. Bailroad, 27 N. E. 161; Kansas City v. Cautrell, 10 So.'580.
    
      
      Prima facie evidence in the absence o£ all controlling evidence becomes exclusive and should operate in the minds of the jury as decisive to find their verdict as to fact. Crane v. Morris, 6 Pet. 398; Kelley v. Jackson, 6 Id. 622; U. S. v. Wiggins, 14 Id. 334.
    
      C. J. Paitón and A. E. Wallace, for respondent.
    Whether the facts be disputed or not, regarding the question of negligence, if different minds may honestly draw different conclusions from them the case should properly be left to the jury. Williams v. Railroad, 3 Dak. 176; Lincoln v. Gillman, 18 Neb. 114; Johnson v. Missouri, Id. 690; Hathaway v. East, 29 Fed. 489. Ohio v. Collass, 73 Ind. 261; 16 Am. & Eng. Ency. Law, 465; Patterson v. Wallace, 28 Eng. L. & Eq. 48; Mangam v. Brooklyn, 38 N. Y. 465; Detroit v. Yan Steinberg, 17 Mich. 99. If the testimony of a witness as to negligence is contradicted by circumstances the question should go to the jury. Elwood v. Western Union, 45 N. Y. 549; Hackford v. Railroad, 53 Id. 654; Smith v. Coe, 55 Id. 678; Heyne v. Blair, 62 Id. 19; Morse v. Erie, 65 Barb. 491; Yan Ostrand v. O’Brien, 1 Weekley Dig. 312; Yinton v. Schwrab, 32 Vt. 612; Lindsay v. Lindsay, 11 Yt. 621; Kane v. Learned, 117 Mass. 190; Lane v. Railroad, 14 Gray 143; Kansas v. Painter, 14 Kan. 37; Dolfinger v. Fishback, 12 Bush. 475; New Jersey v. Nichols, 5 Vroom. 166; Atchison v. Bailey, 11 Neb. 332. On an application to direct a verdict, the evidence of the opposite party must be assumed to be true and he is given the benefit of all legitimate inference in his favor. Parks v. Ross, 11 How. 373; Purcell v. English, 86 Ind. 34; Pratt v. Stone, 10 111. App. 633; Bishop v. McNary, 2 B. Mon. 132; Gallatin v. Bradford, 1 Bibb.- 209; Stone v. Railraad, 47 Id. 82.
   Fuller, J.

Respondent brought this action and obtained a judgment for the value of a-horse killed upon appellant’s railway track by a passing engine. There is no material conflict in the evidence, and it is contended that defendant’s motion to direct a verdict at the close of the testimony should have been granted. Plaintiff, who was in the employ of the defendant as a section laborer at the time the horse was killed, testified as follows: “I didn’t see the horse killed. I saw the horse Saturday night. It was in a cnt on the prairie. They come ■ out of a field, — a small field, — and go into this cnt. Between the field and cnt there is a place where the cattle would cross the railroad. It was a regular crossing. The embankment ran down nearly to the ties. The embankment was five or six feet high.” “A. I seen his tracks where he came down - the track, where he entered the cut. He jumped right onto the track where the section men had been at work. There were ties long the edge of the track. He could not run on the side of the track. He started to run-through the cut. There was only one horse’s tracks. The horse was going north. * * * I didn’t see this accident. I heard the- train going up about nine o’clock at night. After I found the horse, I supposed it was the one that did it. T. Miles, the section man, was with me when I made the examination of these tracks. The horse - ran along the track 250 fee.t. It was the length of eight rails. I do not know1 where the engine was when the horse went • onto the track. The ties were along there — the old ties — for about' seven or eight hundred feet. The horse went onto the track at the south end of.the cut.” Another witness sworn in plaintiff’s behalf testified that, in his opinion, the horse tracks upon the railroad extended only about 100 feet from where the animal appeared to come into the cut to the place where he lay when found. It appears that the engine that struck the horse was practically new, in first-class condition, and equipped with all modern appliances in general use; and, by the aid of another engine, likewise equipped, was drawing, at the rate of 15 miles an hour, a freight train consisting of 19 loaded cars, each of which was provided with an air brake properly connected and in good order. The operators of the engines and the train were all experienced and competent railroad men. The accident occurred on a dark, rainy night, while the train was passing through a long, narrow cut, five or six feet deep. The engineer, after testifying that at the time the horse was struck his fireman was busy putting in coal, and was unable to keep a lookout, proceeded as follows: “I ride on the right-band side of the cab. I was keeping a lookout ahead. The way it looked to me, the horse jumped onto the track ahead of it, — right ahead in front of the pilot, — or just about four or five feet ahead of it. The horse was not on the track ahead of the engine. Not until he was struck, that I saw.. He jumped onto the track from the fireman’s side of the cab. I didn’t have time to do any thing only open the cylinder cocks. These cocks are on each side of the cylinder, and permit the steam to escape. That makes a hissing sound. I thought that would hurry the horse, or whatever it was, and it would make a little more of a jump. It is natural when seeing stock, to scare them off as quick as possible. I didn’t have time to do much. * * * I could not have stopped or checked the speed of this train before this animal was struck, from the time the animal was first discovered. I could not have got the brakes to work before he was struck. We had a headlight on the engine. It was a fair headlight. I was keeping a sharp lookout ahead. * * *■ When he struck the track, I struck the horse. I could not see how far he was carried. I jumped over to the other side of the engine. He seemed to be caught or turning. I was over there in a second, and he was struck on the other side. I am positive the horse was not running or jumping ahead of the engine. He was simply trying to cross the track. I didn’t have time to whistle. My foot was close to the lever, and I threw it' over. And that didn’t get the steam on till he was struck. That was all that I did. That was all that I could do. I didn’t know that it was a horse until I came back on the return trip. It was about nine o’clock in the evening. Was dark and rainy and drizzling. * * * I first saw this horse the instant before he was struck. In the cut I could not see outside, of the right of way. The top of the bank is not very easy to see from iny side of the cab. The bank is five feet high, and he could not have been seen any distance from where I was.” The evidence of the engineer was corroborated in most particulars by the fireman, who further testified that the train could not have been stopped upon that grade, running at th3 rate of 15 miles per hour, within a shorter distance than 500 or 600 feet. As the accident did not occur at a crossing it is clear that the animal was wrongfully upon defendant’s right of way and railroad track; and if the evidence of plaintiff regarding the tracks found between the rails is sufficient to support an inference that the horse ran ahead of the engine from 100 to 250 feet from the point where it first came down from the embankment onto the track, that fact becomes unimportant when considered with the undisputed evidence that it would require the utmost effort of the operators and the application of the brakes to every wheel to stop the train within 500 or 600 feet. In our opinion, the prima facie case, based upon the statute, arising from the killing of the horse, was fully overcome by the undisputed evidence, and a verdict for defendant should have been directed. ■ Hebron v. Railway Co. (S. D.) 57 N. W. 494; Harrison v. Railway Co. (S. D.) 60 N. W. 405. The evidence being insufficient to justify and sustain the verdict, the judgment based thereon is reversed, and a new trial is ordered.  