Page:North Dakota Reports (vol. 3).pdf/422



Stock Killing Case—Prima Facie Case—Negligence—Evidence.

Where an action is brought against a railroad company for the negligent kill ing of a domestic animal, the plaintiff can, if he secs fit to do so, make out a prima facie case without showing actual negligence, by proving the value of the animal and the fact that it was killed by defendant's train of cars; but in such case, if the defendant, to overcome the statutory presumption of negligence arising from the killing, shows conclusively by undisputed evidence that the train in question was at the time of the accident in good repair and condition, and was equipped with the best modern appliances and improvements in use, and was operated skillfully and with due care, then, and in such case, the statutory presumption of negligence arising from the killing is rebutted and entirely overcome; and where in such case, at the close of the testimony, defendant requested the trial court to direct a verdict for the defendant, and the court refused to do so, Ae/d, that such refusal was reversible error.

Appeal from District Court, Dickey County; Lauder, J.

Action by Thomas Hodgins against the Minneapolis, St. Paul & Sault Ste. Marie Railroad Company for the killing of plaintiff's horse. Judgment for plaintiff. Defendant appeals.

Reversed.

A. D. Flemington and A. H. Bright, for appellant.

W. H. Rowe and ''Jas. M. Austin'', for respondent.

, J. This action is brought to recover damages for the killing of plaintiff's horse. The horse was killed in the evening, at about 8:45 o'clock, on May 24th, 1890, by being run over by defendant's locomotive. The accident occurred on a bridge at a crossing of the Maple river, a short distance east of Boynton station, in Dickey County. When struck by the locomotive, the hind legs of the horse had slipped through the ties of the bridge, so that the animal could not extricate them, and the horse was partly on the railroad track and partly off the track and on the bridge. The animals head was facing the west, and the locomotive and train were going east. The train, besides the locomotive