Borneman v. Chicago, St. P., M. & O. Ry. Co.

Citations

• 19 S.D. 459
• 104 N.W. 208
• 1905 S.D. LEXIS 67

Syllabus

<p>1. Where plaintiffs horse was struck by defendant’s train on defendant’s right of way, it was a trespasser, and defendant was only bound to use reasonable care to avoid injury to it after discovering it in close proximity to the track.</p> <p>2. Where, in an action against a railroad company for striking plaintiff’s horse, defendant’s engineer testified that he could have stopped the train within 300 feet, and that when he saw the horse he did not have time to stop before striking him, plaintiff was entitled to introduce evidence in rebuttal that a horse standing 25 feet either way from the track at the point where the horse in question was struck could be plainly seen for a distance of 1,500 feet in the direction from which the train approached.</p> <p>3. Where, in an action against a railroad company for striking plaintiff’s horse, the engineer testified that he was keeping a lookout, and could have stopped his train within 300 feet, but did not see the horse in time to stop before striking him, and plaintiff’s evidence showed that the animal was in the engineer’s line of vision while the train was mov- ' ing more than 1,500 feet, it was not error for the court to overrule defendant’s motion for a directed verdict, the jury being’entitled to find that defendant could have avoided the accident, notwithstanding his positive statement to the contrary.</p> <p>4. Where, in an action against a railroad company for striking plaintiff’s horse, defendant introduced evidence as to the speed of the train, it was not error for the court to receive further competent evidence offered by plaintiff on such issue.</p> <p>5. Whether a witness was competent to testify as to the speed of a certain train was for the determination, of the trial court, whose ruling would not he reversed in the absence of palpable error.</p> <p>6. On an issue as to the violation of a speed ordinance by defendant’s train at the time it struck plaintiff’s horse, an instruction that defendant’s act in vi