Reagan v. El Paso & N. E. Ry. Co.

• Decision Date: 06 January 1910
• Court: New Mexico Supreme Court
• Parties: REAGANv.EL PASO & N. E. RY. CO. et al.

15 N.M. 270

106 P. 376

REAGAN

v.EL PASO & N. E. RY. CO. et al.

Supreme Court of the Territory of New Mexico.

Jan. 6, 1910.

Appeal from District Court, Otero County; before Justice Edward A. Mann.

Action by James Reagan against the El Paso & Northeastern Railway Company and another. From a judgment for plaintiff against the defendant named, it appeals. Reversed and remanded.

In actions sounding in tort plaintiff must prove the injuries complained of, and also who committed them.

W. A. Hawkins and John Franklin, for appellant. John W. Thompson, for appellee.

MILLS, C. J.

This is a suit for damages, brought by James Reagan to recover from the El Paso & Northeastern Railway Company, and the El Paso & Northeastern Railroad Company, for the killing of a mare and the injury to a jack, caused by a train run by the defendants, their agents or servants. The cause was heard by a jury, which returned a verdict for $300 in favor of the plaintiff and against the El Paso & Northeastern Railway Company. The railway company filed a motion for a new trial, and, on motion being overruled, took an appeal to this court.

In the motion for a new trial, nine alleged errors are assigned; but we will only consider the second, as the others relate to instructions either given or refused by the court, and, as the instructions are not brought up with the transcript, we cannot consider them.

The second error assigned is that the trial court erred in not sustaining appellant's motion for a new trial, because the evidence in the case does not show that the mare was killed or the jack injured by the defendants or either of them, or by their or either of their servants, agents, or employés, and that the only evidence upon this fact tends to show that the mare was killed and the jack injured by the El Paso & Southwestern Railway Company. We have carefully examined the record before us in this case and can find no evidence to show that the mare was killed or the jack injured by the defendant companies, or their servants, agents, or employés. There is nothing in the record to show that the El Paso & Northeastern Railway Company, or the El Paso & Northeastern Railroad Company, either owned or operated the railroad where it is alleged the accidents to the animals occurred. What little evidence there is concerning this point shows that the mare was killed and the jack injured by the El Paso & Southwestern Railroad Company, and not by the defendant companies. The witness McCallum, who testified for the plaintiff, on page 38 of the transcript, says: “Q. What railroad are you connected with? A. El Paso & Southwestern. Q. Is that this railroad running through here? A. Yes, sir. Q. And the only one running through here? A. That is the only one I see.” And the witness Wahlenburg, also a witness for the plaintiff, testified, as shown on page 52 of the transcript,...