Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-03-16
SUPREME COURT.
DECISIONS OF CASES ARGUED 1T
THE OCTOBER TERM.
Russell Withe,ell, Respondent, as. The lHi1.cau-
: kee and ST. Paul Rdil,oay Company, Appel-

Russell Witheyel1, Respondent, rs. The Hilerdu
kee and st. Paul Rdiz,eay Company, 4ppel-
liant.
SYLLABUS.
If domestic animals are on the track of a
railroad by the fault of the owner, such owner
takes all reasonable risks of injury to them
from passing trains, and while the railroad
company is not bound to presume that such an
imals will be upon the track, they are not au-
thorized to injure them willfully Or carelessly,
but are bound to use reasonable care to avoid
injuring them. By the exercise of reasonable
care is meant the making of the same
effort to avoid injuring an animal
as prudent person, owning both train and
cattle, would make, for proper regard for both.
The foregoing rules, laid down in Locke Vs.
First Division st. P. & P. R. R. Co., Is Mimi,
$50, approved, with a comment and explana-
ton to the effect that, considering that the
owner of the cattle is at fault, in supposing his
cattle to go upon the track, and that the rail
road company is engaged in the exercise of a
lawful right, and in discharge of public, or
quasi public act; and considering further, the
| relative value and importance of train, and of
the lives and limbs of the persons upon it, as
| compared with the value of domestic animals,
a proper regard for both train and cattle would
| make the duty to avoid injury to the train, and
| those upon it, primary paramount to the duty
OF avoiding injury to the cattle.
OPINION.
This action is brought to recover damages for
the killing of plaintiffs colt through the
| alleged negligent management of one of de-
| PENDANTS railroad trains A verdict having
been rendered for the plaintiff, the defendant
moved for new trial, on the ground that the
verdict was not justified by the evidence, and
l that errors of law occurred upon the trial.
which were duly excepted to.
As appears from the evidence, and as admit
! ted by the plaintiffs counsel, the colt was a
trespasser upon defendants premises, and the
defendant was in no way responsible for his
being there.
they discovered the colt upon defendant prem
lses and in peril, the defendants servants were
guilty of negligence in 30 managing the train
SO as to run upon the colt and kill it. In other
words, that after such discovery they omitted
to do something which they could have done
with prudent reference to the safety of the
train as well as Of the colt, and which, if they
had done it, would have prevented the killing
complained of. The rules of law applicable to
case of this kind are correctly laid down in
Locke VS.. The First Division of the st. Paul 4
Pacific railroad company Is Mimi, $780, to the
effect that if domestic animals are on the track
of a railrod by the fault of the owner, such
owner takes all reasonable risks of injury to
them from passing trains, and that while the
railroad company is not bound to presume that
such animals will be upon the track, they
are not authorized to iniure wilfully
or carelessly, but are bound to use reasonable
care to avoid injuring them. 1t is further cor
rectiy held, in the same case, that by the ex-
ercise Of reasonable care is meant the making
of the same effort to avoid injuring an animal
as prudent man owning both train and cattle
would make with proper regard for both. By
way OF comment and explanation, it may be
added, that considering that the owner of the
cattle is at fault in suffering his cattle to &c
upon the track, and that the railroad company
is engaged in the exercise of lawful right, and
in the discharge of a public, or quasi public
duty; and considering further the relative value
and importance of train, and of the lives and
limbs of the persons upon it, as compared with
the value of domestic animals, proper re-
gard for both train and cattle would make the
duty to avoid injury to the train, and para
mount to the duty of avoiding injury to the
cattle.
AS to Donaldson VS.. Milwaukee and st. Pau
railroad company, 81 Minnesota 297, (cited and
relied upon by defendant) it was Gas distinctly
: appears in the opinion of the COURT case up
on the facts of which there was opportunity
for negligence on part of the employees after
the plaintiff stepped upon the track, and in that
respect the case is essentially distinguishable
from the Locke case and from the case at bal
as it stands upon the evidence.
i!onl 'ne veiuAc1 ~ 10 10 ne presumed ina,
the jury were of opinion that the defendant
did not exercise in this instance the
care required by the foregoing rules
Upon reading the testimony as it appears
upon paper here, it seems to us that to say
the least, there is great preponderance against
this conclusion of the jury; much so that
looking at the testimony alone as it appears
here and irrespective Of other considerations,
we should be strongly inclined to hold that the
new trial prayed for by the defendant should
have been granted. But we cannot say that
there is not some competent evidence having
dict, and considering that the trial below was
second trial of the case that after being charged
the jury remained out all night celebrating
upon their verdict, and that the court below
which had opportunities for estimating the
value and weight of the testimony which
nonsuit the plaintiff as also the
motion for new trial, we are of opinion that
the verdict cannot be disturbed for the INSULT
cheney of the evidence. It is not improper tc
add that we have arrived at this conclusion af
ter great deal of doubt and hesitation.
The alleged errors of law in refusing the de-
PENDANTS motion to dismiss for want of evi
dence to make out the plaintiffs case, and in
refusing to direct the jury to bring in a verdict
for defendant, are disposed of by what is said
above, SO far as applicable thereto.
To the general charge of the court only one
exception, If insisted on here, is disposed Of
by what we have already said as to the rules OF
law applicable to cases of this kind. The
question submitted to the jury fol
a special finding, though it does not
go far enough to embrace the gist
of the case was not objected to on that or any
other account, but was allowed to be put t.
the jury rs it is. The remaining alleged errors
Consist in the refusal of the court to give two
requests made by defendant for instructions tc
the jury. AS respects the first request its sub.
stance is completely covered by the charge Of
the court. The other request is follows viz.
That the defendant, MS against this plaintiff
was under no obligations to set the brakes OF
endeavor to stop the train until those in charge
of the train the plaintiffs colt on the
track
Il This request is clearly inaccurate, for the
reason that the duty to take the precautions
mentioned might ariseif the colt had been seen
standing near the track or approaching it. AS
the court below says in its general charge, it is
the discovery of the peril Of the cozt which
calls upon those managing the train to take
measures to prevent injury. Apart from this
inaccuracy, the substance of this request il
amply covered by the general charge of tn.
court. Order denying new trial affirmed.
BERRY, Judge.
William W. Eastman and John L. Merriam,
appellants, as. The st. A,.tho,y Falls Vate,
Po,cer Company, Respondent
SYLLABUS.
court of equity will not interpose to re.
scind o contract on the sole ground of mutual
mistake of feet, unless the parties can be re-
stored substantially to their situation at the
time the contract was made. Neither will
equity SO interpose upon such ground. when