Jensen v. Northern Pacific Railway Company
| Decision Date | 17 November 1902 |
| Citation | 70 P. 790,8 Idaho 599 |
| Parties | JENSEN v. NORTHERN PACIFIC RAILWAY COMPANY |
| Court | Idaho Supreme Court |
SUFFICIENCY OF EVIDENCE TO SUPPORT VERDICT-NEW TRIAL.-Where there is no evidence to support a judgment based upon the verdict of a jury, the judgment must be reversed and a new trial granted.
(Syllabus by the court.)
APPEAL from District Court, Kootenai County.
Reversed and remanded. Costs to appellant.
Stephens & Bunn and Ellis T. White, for Appellant.
It has been repeatedly held that when the killing of stock by a locomotive is fully explained by uncontradicted testimony though of the employees only, showing that the striking of the animal could not have been prevented by any effort of the employees of the railroad company, the presumption of negligence arising, under the statute of Georgia, from the accident is rebutted, and a verdict for plaintiff is contrary to and unsupported by the evidence, and will not be sustained. Where there is no evidence to establish the material issues of the complaint, the court, on motion of the defendant, ought to instruct the jury to return a verdict for the defendant. (Haner v. N. P. Ry. Co., 7 Idaho 305, 62 P. 1029; Spokane etc. R. Co. v. Holt, 4 Idaho 443, 40 P. 56; Gwin v. Gwin, 5 Idaho 271, 48 P. 295; Johnson v. Fraser, 2 Idaho 404, 18 P. 48; Dangel v. Levy, 1 Idaho 722.) It is the settled law of this court that where instructions are inconsistent or contradictory the judgment should be reversed. (Holt v. Spokane etc. R. Co., 3 Idaho 703, 35 P. 39, 42; Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545.)
Charles L. Heitmen, for Respondent, cites no authorities on the point decided by the court.
The facts are stated in the opinion.
This is an appeal from the district court of Kootenai county. The plaintiff (respondent) commenced his action in justice's court of Kootenai county to recover for the loss of two cows alleged to have been negligently and carelessly killed by defendant's (appellant's) "locomotive and train of cars." Judgment was rendered in justice's court in favor of the plaintiff for the sum of $ 100. An appeal was taken to the district court of said county, and a judgment in favor of the plaintiff for the same amount was the result of a trial in said court. A motion for a new trial was overruled, and this appeal is from that order.
The record discloses fifteen assignments of error occurring at the trial. One is insufficiency of the evidence to support the verdict. From the evidence we obtain the facts to be that appellant's train was running at a rate of speed equal to about forty miles an hour. That as the train approached the crossing an alarm whistle was sounded. Afterward, and when the train was within about two hundred yards of the crossing the engineer discovered some cattle about forty to fifty feet from the track, but was unable to tell at first sight whether they were moving or not. As soon as he discovered they were moving toward the crossing, he sounded the stock-alarm whistle, which consists of quick, sharp blasts. At the same time he applied the air to the brakes, and when he got to the crossing had reduced the rate of speed to about twenty miles an hour. The fireman rung the bell for the crossing. The engineer testifies that there was one cow on each side of the engine when they struck them; that he was on the right side and saw the cow on that side. ...
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