Cook v. Pickrel
| Decision Date | 01 July 1886 |
| Citation | 30 N.W. 421,20 Neb. 433 |
| Parties | JOHN P. COOK, PLAINTIFF IN ERROR, v. HARVEY PICKREL, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for York county. Tried below before NORVAL, J.
REVERSED AND REMANDED.
France & Harlan and D. T. Moore, for plaintiff in error.
Sedwick & Power, for defendant in error.
This action was brought in the district court by Pickrel against Cook. The petition contains two counts, one of which charges And the other of which charges, "that said defendant * * * chased and drove about the plaintiff's horses with dogs in a negligent manner, and that in consequence thereof the said horses of the plaintiff of the value of $ 1,500 were greatly damaged and impaired, and that one thoroughbred brood mare, by reason thereof, of the value of $ 300, was killed, and one thoroughbred colt, the property of the plaintiff, was by reason thereof greatly damaged and injured, and rendered of no value whatever, to the plaintiff's damage $ 150, and other horses were injured by reason thereof in the sum of $ 150," etc.
The defendant, Cook, on the 7th day of February, 1883, filed his answer in said cause, in and by which he denied "each and every allegation in the plaintiff's petition contained."
It appears from the record that, before trial, there were three preliminary or dilatory motions made by counsel for Cook, all of which were overruled, and the overruling of two of which is assigned as error, and insisted on in the brief of counsel. These assignments cannot be considered, for the reason that, as set out in the record, these preliminary motions seem to have been made after the filing of the answer to the merits. The writer is of opinion that one of said motions, that to require plaintiff to reduce his petition to one count or single statement of his cause of action, would have been sustained had it been made and insisted upon before pleading to the merits. But of course, after a plea or answer upon the merits, and it remains on the files of the case, no motion or application of the character referred to will be allowed.
There was a trial to a jury, with a verdict and judgment for Pickrel, plaintiff. Cook, defendant, brings the cause to this court on error.
There are twenty-six errors assigned, some of which, as we have seen, cannot be considered, for the reason above given; and others, which are based upon the admission of irrelevant and improper evidence offered by Pickrel, and the exclusion of relevant and proper evidence offered by Cook, cannot be considered, for the reason that they are too general, not pointing out the evidence to which they severally refer. Such of the errors assigned as may be considered, and which are deemed sufficient to a proper disposition of the case, will be stated as they are examined and disposed of.
The evidence preserved in the bill of exceptions is voluminous consisting of two hundred and seventy written pages, and the cause having been brought to this court before the taking effect of the abstract law, is not abstracted. It will, therefore, be impracticable to present more than a brief resume of the evidence here, and that will be confined to the evidence applicable to points considered. Charles Bell, a witness, sworn and testified on the part of Pickrel, that he knows plaintiff and defendant; that he was herding cattle and horses for Pickrel on the day of the injury; he herded the horses just like the cattle. He drove them up a little after 3 o'clock, may-be later. Here witness was interrupted by plaintiff's counsel, who put to him the following interrogatory:
Q. How carefully did you watch the horses at the time you were herding them there? Counsel for defendant objected to this question as incompetent and irrelevant. The objection was overruled and witness answered as follows:
A. I herded the horses the same as I herded the cattle. They kept picking around. I had to watch the cattle in the herd. I had twenty-three or four head of horses, fifty-one head of cattle, eighty-three head in all; had no help. They kept trying to get away all the time. I kept rounding them up. They got over in the field out of sight. I did not dare to leave the cattle and go over and follow them. Got into the yard at Pickrel's at--o'clock and drove into the house.
Q. Were you horseback?
A. I was.
Q. State to the jury where you found the mare?
A. In the north-west corner of Mr. Cook's corral, dead.
* * * *
On cross-examination this witness testified as follows:
Q. How far were these horses from you when you saw them cross (the wheat field)?
A. I judge about three hundred yards.
Q. Where did they go from there?
A. Kept down the draw. The last time I saw them was over on Mr. Moyer's land on the sod next to Tolbert's.
Q. How far were these horses from you when on Mr. Moyer's land?
A. I judge about three-fourths of a mile, probably a little more or less.
Q. Where were the cattle then?
A. With me, where I was herding on the other eighty, I saw both at that time.
Q. Cattle were with you?
A. Yes, sir.
Q. You say the horses were two thirds of a mile away?
A. Yes, sir.
Q. Where did the horses go from there?
A. I could not tell. It was then about two o'clock.
Q. What is your best recollection?
A. I don't remember; in fact I could not tell.
Q. Last time you saw them was about two o'clock, three-fourths of a mile away.
A. Yes, sir.
Q. What did you do then?
A. I took the cattle to the house.
* * * *
Q. Last time we saw you, you were eating dinner about three o'clock?
A. Call it any way you wish.
Q. When you got home you told him the horses got away?
A. Yes; I told him they got away. Said I better do something right away. Went out to the stable to saddle the horse and started I met these boys. Said that Tolbert was running the horses. Did not go over the whole way. Said he was cursing Harv.'s (Pickrel's) horses. He recognized the teams.
Q. What time was this when he said he recognized the team to be Harv.'s?
A. May be 4 o'clock.
Q. Where did you go then?
A. Started down that way; I went to Tolbert's place and then down to Cook's.
Q. What did you find out at Tolbert's?
A. I did not see him; went on down.
Q. Was he gone then?
A. Yes; I met him coming back; said he seen no horses; somebody there with him, and he said he saw me out there, and missed the horses.
Q. Where did you meet Tolbert?
A. Coming home right at the four corners of these lands. I started from Harv.'s about 4 o'clock; drove about two and a quarter miles to Cook's; stopped at Lesh's and looked there.
Q. What time did you look in Tolbert's stable?
A. About 4 1/2 o'clock; I left Harvey's about 4 o'clock, I think.
* * * *
Q. Did you see Tolbert after your horses?
A. Met him after he said that was it; said he saw the horses on Moyers' land; saw some one out there trying to catch them.
Q. Know who?
A. No, sir.
Q. This about 5 o'clock?
A. Somewhere; Louie saw a man out there, and were going from there; after I saw I drove to Cook's yard; I saw the boy and thought he was likely to know, though was in the barn. Harv. got and looked in the barn; the boy said his mother drove them in the orchard.
Q. Find any tracks?
A. I don't know; I was not with them.
Q. Where were you all this time?
A. In the buggy.
Q. Where was the buggy?
A. In the road.
Q. Going which way?
A. Nearly west past the corral; after he got here he says "drive back" on the west side of the corral, and I did.
Q. Where was the dead horse?
A. Pretty near there, I believe.
Q. Which end of the corral?
A. Northwestern.
Q. Right at the corner?
A. May-be west a rod.
The cross-examination of this witness was continued at great length, but I have quoted sufficient to present the substance of his testimony.
Harvey Pickrel, the plaintiff, was sworn and examined as a witness in his own behalf. After stating that he was acquainted with the defendant, his examination continued as follows:
Q. Were you acquainted with him last April a year ago?
A. I was.
Q. You may state to jury whether you lost any horses about that time.
A. Yes, sir.
Q. What kind were they?
A. It was a mare that died; I had a couple of colts hurt.
Q. What time of the year was it?
A. I think it was the 16th day of April, 1882; I think it was on Sunday.
When did you first discover they were injured?
A. On Sunday evening.
Q. Where were they at the time that they were injured?
A. On Mr. Cook's premises.
Q. How did you first discover that the animals were injured; what first called your attention to it?
A. In the evening just before sundown the horses that were out come up with the exception of one, and I noticed they had been badly run, and were running when they come up, and I noticed some of them were injured when they come; one was lame when it come up, and the cuts on one went down to the knee; this mare was gone when I went down.
Q. State to the jury where you found her?
A. At Mr....
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