Nelson v. Great Northern Railway Co. , 52 Minn. 276 ( 1893 )

Dickinson, J.

This action is fof the recovery of the value of a colt two yearp old, which escaped from the plaintiff’s premises, and went on the defendant’s railway track, where it was killed by a passing train. The appellant (defendant) brings the ease here for review upon two questions, viz. — First, was the colt running at large unlawfully, so that the plaintiff was chargeable with contributory negligence ? and, second, was the defendant chargeable with neglect of duty by reason of not having fenced its track at the place where the animal went on it ? The uncontradicted evidence in the case is conclusive against the defendant upon both these points.

As to the first of these questions, it is enough to say that shortly before dark in the afternoon the animal escaped from a safe inclosure on the plaintiff’s premises, in a manner shown by the evidence, and not involving any fault on the part of the plaintiff; that he pursued, and endeavored to retake, the colt, but without success, until dark, when he lost sight of him on the open prairie adjacent to the village of G-lyndon. During that night the animal went on the railroad track, and was killed.

The plaintiff’s premises are within the corporate limits of the village of Glyndon, and just north of a highway designated as a county road. The defendant’s railroad is laid in a north and south direction a few rods east of the plaintiff’s premises. The depot is about 1,000 or 1,200 feet south of the county road, and within the intervening space are the side tracks, on which, for the most part, if not entirely, the receiving and delivery of freight are done, and where cars are left. These side tracks turn off from the main track just south of the county road, and are accessible by cars or engines only from the north. It may be assumed, as the appellant claims the fact to be, that the necessary switching of cars between the main track and the side tracks could not be done with safety to the employes engaged in coupling and uncoupling cars if there were open cattle guards under the railroad track at the county road. It may also be assumed that it was impracticable to fence the tracks south of the county road. The situation is somewhat different north of that road. There is a side track there also, leaving the main track south of the county road, and running north parallel with the main track to a point north of that where the colt went on the track. North of that point this side track connects again with the main track. This side track is referred to in the evidence as the passing track, and is used to accommodate trains passing each other on the road. It appears also to have been used to some extent in the switching of cars, and we will assume (although we deem this a matter of no importance) that a cattle guard could not be safely located near the north end of this passing track. But no reason is shown why the road should not have been fenced from the county road north. The horse went on the railroad from the open fields on the east of it, at a point some 40 or 60 rods north of the county road. While this was within the corporate limits of the village, there were no streets extending from the east across the track, and nothing was shown to excuse the failure to construct fences, unless it be the fact that cattle guards could not properly be located at the county road, and hencfe, even if fences were constructed along the sides of the right of way, animals might get on the track at the •county road, where the fences would necessarily terminate. But this is no excuse for the neglect of the statutory duty to construct fences.

The injury complained of is attributable directly to that neglect, and the defendant was legally responsible therefor. The possibility that even if fences bad been constructed the animal might have got on the track at some other place in no way affects the case.

Order affirmed.

.(Opinion published 53 N. W. Rep. 1129.)