Corbett v. Great Northern Railway Co.

Ellsworth, J.

(concurring specially.) I concur in the result announced, but I cannot agree in the holding that horses, during the “open season” for ranging live stock, are trespassers when upon the right of way of a railway company. A holding the reverse of this is, as I read it, made in the case of' Wright v. Minneapolis, etc., Railway Companay, 12 N. D. 159, 96 N. W. 324, and such principle is, I believe, sound and in accord with the current of authority, and should be observed in this case.

I am also unable to agree in the holding that the motion for a directed verdict, made by the defendant at the close of the entire testimony, should have been granted- I believe that the circumstances shown by the testimony with reference to a clear and unobstructed track for a distance of half a mile or more before the stock was struck by the engine, and the fact that it was daylight at the time, so conflict with the testimony of the engineer that he did not see the horses until within a few car lengths of the place where they were struck, and at a distance within which it was impossible to stop the train, as to require the submission of the case to a jury.