Lott v. Oregon Short Line R. R. Co.

• Decision Date: 03 February 1913
• Citation: 23 Idaho 324,130 P. 88
• Parties: DELBERT F. LOTT, Respondent, v. OREGON SHORT LINE R. R. CO., Appellant
• Court: Idaho Supreme Court

130 P. 88

23 Idaho 324

DELBERT F. LOTT, Respondent, v. OREGON SHORT LINE R. R. CO., Appellant

Supreme Court of Idaho

February 3, 1913

SUFFICIENCY OF EVIDENCE-INSTRUCTIONS.

1. Evidence examined, and held sufficient to justify the jury in finding for the plaintiff.

2. Instructions examined, and held applicable to the evidence introduced and not erroneous.

APPEAL from the District Court of the Ninth Judicial District for Fremont County. Hon. James G. Gwinn, Judge.

Action by the plaintiff for damages for the killing of livestock. Judgment for plaintiff and defendant appeals. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

P. L. Williams and D. Worth Clark, for Appellant, cite no authorities.

C. W. Poole, for Respondent.

Instructions Nos. 2, 3 and 5 are the law as laid down by this court. (Patrie v. Oregon Short Line Ry., 6 Idaho 448, 56 P. 82; Johnson v. Oregon Short Line Ry. Co., 7 Idaho 355, 63 P. 112, 53 L. R. A. 744.)

The complaint is sufficient to bring the case within the provisions of the statute; the evidence justifies and supports the verdict. (Kirn v. Cape Girardeau & C. Ry. Co., 149 Mo.App. 708, 129 S.W. 475.)

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

This is an appeal from a judgment awarding $ 250 and costs to the respondent as damages for the killing of two horses, which were run down by appellant's train.

1. It is contended that the evidence is not sufficient to support the verdict and judgment. There is some evidence in the record which would lead to the conclusion reached by the jury, and for that reason we would not feel justified in reversing the judgment. It may reasonably be concluded that the railroad company was negligent in not maintaining a cattle-guard at the ends of its fences near the northern boundary of the city of Rexburg where the accident occurred. (Kirn v. Cape Girardeau & C. Ry. Co., 149 Mo.App. 708, 129 S.W. 475.)

2. The objection to the instructions is based upon the theory that there is no evidence to support a verdict and that the instructions are not applicable to any evidence given in the case. Having determined that there was some evidence which would justify the verdict of the jury, we conclude that the objections to the instructions are not well taken. The judgment is affirmed. Costs awarded in favor of respondent.

Sullivan and Stewart, JJ., concur.