Bates v. Fremont, E. & M. V. R.

Citations

• 4 S.D. 394
• 57 N.W. 72
• 1893 S.D. LEXIS 88

Syllabus

<p>1. Section 5501, Comp. Laws, makes proof of the killing of stock by a railroad company prima facie evidence of the negligence of the company, and an averment, in the complaint in such an action, that the stock were so killed-within the terms of the statute, is a sufficient averment of negligence on the part of the company.</p> <p>2. Upon the trial, if the evidence leave the facts undisputed, and they are such that different conclusions or inferences could not reasonably be drawn from them, it becomes the duty of the court to declare their legal effect; but if the facts are in dispute, or, if undisputed, they are such that different impartial minds might fairly draw different conclusions from them, they should be submitted to the j ury.</p> <p>3. ■ Evidence of defendant’s witnesses that the whistle was blown and the bell rung at the usual distance from the crossing, and that of plaintiff’s witnesses that they heard no whistle or bell, though sufficiently near to hear, and watching and listening for the same, creates a conflict as to the fact of the bell being rung or the whistle blown, which question, if material, should be submitted to the jury.</p> <p>4. Where the plaintiff was driving a number of loose horses and mules along the highway in the afternoon; and towards-a railroad crossing, the track for some distance being obscured By an intervening embankment, knowing that a train was due to pass during the afternoon, but not at what hour, the fact that he did not ride ahead, and hold his stock back until he could and did go to the track and ascertain whether or not a train was coming, is a fact tending to show contributory negligence, and as such should go to the jury with all the circumstances of the case, but it does not establish contributory negligence as matter of law.</p> <p>Corson, J., dissenting.</p> <p>(Syllabus by the Court.</p>