Gilbert v. Matejka

• Decision Date: 30 January 1920
• Docket Number: No. 4595.,4595.
• Citation: 42 S.D. 435,176 N.W. 30
• Parties: GILBERT v. MATEJKA.
• Court: South Dakota Supreme Court

42 S.D. 435

176 N.W. 30

GILBERT

v.MATEJKA.

No. 4595.

Supreme Court of South Dakota.

Jan. 30, 1920.

Appeal from Circuit Court, Beadle County; Alva E. Taylor, Judge.

Action by Elizabeth L. Gilbert against Frank E. Matejka. From judgment for plaintiff, and an order denying his motion for new trial, defendant appeals. Judgment and order affirmed.Null & Royhl, of Huron, for appellant.

C. A. Kelley and James Byrnes, both of Huron, for respondent.

McCOY, P. J.

Action to recover damages for alleged negligence in driving certain cattle through the city of Huron by defendant and his servants, whereby plaintiff was injured. Verdict and judgment for plaintiff, from which defendant appeals.

The vital question in this case is whether or not on the facts shown a verdict for plaintiff was warranted. It appears that at the time of the accident appellant was driving a herd of cattle through a street in a residence portion of the city where respondent resided. The respondent was going from the porch of her residence to a garden in the rear of the building when she was run against by a steer that was being chased by a man on horseback. It appears that the steer came through the garden on a rapid run. It also appears that some minutes before the accident this steer had broken from the herd on the opposite side of the street, and ran back in the opposite direction from that in which the herd was being driven; that a servant on horseback pursued the steer which ran across the street and into and through respondent's garden, where the same was headed back and driven towards the herd. It is the contention of respondent that the manner in which this steer was pursued and chased by the man on horseback was negligent, and caused the collision with respondent. The jury heard the witnesses, and observed their demeanor, and were made conversant with the manner in which this herd of cattle and the steer in question were being driven. It was purely a question of fact for them to determine, taking into consideration all the surrounding circumstances, and their own personal knowledge of the nature of such cattle and how they should have been driven under like circumstances, and whether or not the respondent was injured by reason of the negligence of those in charge of the driving of said cattle. We cannot say as a matter of law that there was no negligence. We are of the opinion that the jury were properly instructed, and that the issues were fairly presented to the...