Keilbach v. Chicago, Milwaukee & St. Paul Railway
Keilbach v. Chicago, Milwaukee & St. Paul Railway
Opinion of the Court
To recover the value of a calf killed by a passing freight train, this action was commenced and prosecuted to a judgment in favor of plaintiff, from which the defendant appeals.
Upon the. theory that the statutory imputation of negligence' arising from the fact that the calf was killed by the train had been clearly overcome by uncontroverted testimony, a motion was interposed, when both sides had rested, for the direction of a verdict in favor of appellant, and its assignment of error relating to the denial of such motion presents the only essentially important point, and requires a dareful examination of the evidence. The engineer testified, in effect, that on account of a left-hand curve 80 rods in length, and his position on the right-hand side of the cab (being his proper post while on duty), he was unable to see the calf approaching .the track at a greater distance than 30 rods; but it was observed on the right of way when 60 rods distant by his fireman, who was stationed on the opposite side of the cab, whereupon he shut off his engine, set the brake on the tank, and whistled for brakes,
Reference
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- The statutory presumption of negligence from tho killing of an animal on the track is rebutted, and a verdict for defendant should he directed, where the uncontradicted evidence shows that such animal was not on a crossing, and was not seen by Haney, J., dissenting.