Green v. St. Paul, Minneapolis & Manitoba Ry. Co.

Collins, J.

These were stock-killing eases, growing out of the same occurrence, and tried together, separate verdicts being rendered against the defendant in each case. Its motion for a new trial being granted, plaintiffs appealed. It is quite evident that in granting new trials the court below, although influenced, perhaps, by other reasons, was of the opinion that the evidence was insufficient to sustain the charge of negligence on the part of defendant. We do not hesitate in saying that the court below was right in this, on the theory upon which these cases appear to have been submitted to the jury. It seems to have been assumed that defendant’s liability arose and existed, if at all, out of its failure to keep clear of weeds, and in proper condition, a cattle guard at a point in its railway some sixty rods distant from where the horses entered upon the right of way and railway track. The animals, evidently frightened, jumped this guard as they ran along the track. The plaintiffs claimed (so the court below charged the jury) that defendant had failed to maintain the guard in proper condition, and that this was-negligence for which it should respond in damages. It also charged that there was no other evidence of defendant’s carelessness or negligence. It further charged that if this guard was in proper condition and was such as defendant was required to maintain, the plaintiffs could not recover. To these several statements to the jury the plaintiffs took no exceptions, nor did tney request anything further or different from the court respecting defendant’s alleged negligence. For the purposes of this appeal, plaintiffs must abide by the theory upon which their counsel seems to have finally rested the cases, and also by the charge of the court, which they acquiesced in, and evidently approved. They cannot now shift position, and urge that, as defendant’s negligence really consisted in its failure to fence the right of way, the court below erred when granting new trials on the principal ground before mentioned.

As we must assume that the charge was correct, as a matter of law, it would be incumbent upon us, in order to reverse the order appealed from, to declare that the evidence was manifestly and jpal- *194 pably in favor of the verdicts. This cannot be done, for, on the theory upon which plaintiffs undertook to recover, there was really very little testimony on which to base verdicts for plaintiffs. No complaint was made that the cattle guard was improperly constructed, or had become out of repair, or insufficient to turn animals under ordinary circumstances. To be sure, there was testimony tending to show that a few weeds had grown up from the bottom, and a little sand had accumulated there; but these facts were of no importance, because the proof was clear that the animals jumped the guard, and, of óourse, the weeds and sand cut no figure.

In view of new trials, it is advisable for us to say that, under the circumstances disclosed by the testimony, the bare fact that the horses were unlawfully running at large did not constitute their owners wrongdoers as to defendant company, nor was it contributory negligence per se on the part of such owners. Johnson v. Milwaukee & St. P. Ry. Co., 29 Minn. 425 , ( 13 N. W. Rep. 673 ;) Watier v. Chicago, St. P., M. & O. Ry. Co., 31 Minn. 91 , ( 16 N. W. Rep. 537 .) The question of contributory negligence, on the facts shown, was for the jury. The difference between the cases at bar and that of Moser v. St. Paul d D. R. Co., 42 Minn. 480 , ( 44 N. W. Rep. 530 ,) can easily be seen by an examination of the circumstances attending each.

The trial court very properly declined to charge the jury as requested by defendant’s counsel, for all of their requests involved the proposition that, at law, plaintiffs were guilty of contributory negligence when allowing their horses to unlawfully run at large; the persons in charge thereof having knowledge that at a point two and a half miles distant defendant’s right of way was unfenced. The facts did not warrant any such proposition.

We remark, in conclusion, that whether the neglect of defendant to fence that part of its right of way south of the cattle guard, and where the animals first went upon the track, was the proximate cause of the injury occurring after they had jumped the cattle guard, and gotten upon a part of the railway which was inclosed with a fence, assuming the guard, which was part of the fence, was “good and sufficient,” is a question which we do not now consider, as counsel have neither raised nor discussed it. All we care to say in ref *195 erence to it is that it is not necessarily controlled by Cox v. Minneapolis, S. Ste. M. & A. Ry. Co., 41 Minn. 101 , ( 42 N. W. Rep. 924 .)

(Opinion published 56 N. W. Rep. TCS.)

Order affirmed.