Kelly v. Oregon Short Line Railway

HUSTON, O. J. Plaintiff brings suit to recover the value of a bull alleged to have been killed by defendant corporation. The case was originally tried in justice courtj where judgment was-rendered for' defendant. Appeal was taken to district court, where case was tried de novo, and verdict and judgment recovered by plaintiff, from ■ which judgment defendant appeals to this court! The case comes up on bill of exceptions. . The questions raised and relied upon by appellant are: 1. The verdict of the jury, and the judgment, are not supported by the evidence, and are against law; 2. The court erred in refusing to give the peremptory instruction requested by defendant; 3. The instructions to the jury were ambiguous, uncertain, and misleading, and do not state the law with sufficient clearness. The case was tried by the court with a jury. The only evidence offered was that on the part of plaintiff. After the plaintiff closed his testimony, defendant moved for a peremptory instruction in favor of defendant, which the court declined to grant. The first point urged by appellant is that there was no sufficient identification of the animal, for the loss of which the action was brought. The plaintiff described his animal as a “four year old, half-breed, polled Angiis bull, branded I K on the left side, and a piece cut out of his ear.” Two other witnesses testified that the bull in question was that of plaintiff. One of said witnesses is quite positive, as the animal had run with his band of cattle up to within a few days of its killing. The other witness is equally positive, being well acquainted with the animal, and having seen and examined it a few hours after it was killed. We think this evidence sufficiently establishes the identity of the animal, notwithstanding the negative statement of the other witness that he found no brand upon the animal. The next point raised by the appellant is that the evidence offered by plaintiff' was not sufficient to establish a prima facie case of negligence on the part of the defendant, and thereby -put the defendant upon proof. The evidence shows that, on the night when the bull was killed by the train [193] of defendant, it had been snowing up to about 9 o’clock P. M.; that the track at the place of killing was straight for a mile or more; that there were tracks between the rails for some distance, to where the first bull was knocked off the track, and some twenty steps farther, to where the second bull was knocked off the track. There was snow upon the ground. The animals were black, and, it must be, could have been seen at some distance by the engineer. We think sufficient was shown by plaintiff to put the defendant to its proof. In fact, we do not well see, in the absence of an eyewitness, how more could be proved by plaintiff. And the only eyewitnesses were the employees of defendant. If there was no want of due care on the part of defendant; if the usual means were resorted to, to avoid or prevent the accident — the proof of such facts was in the possession and control of the defendant, and of the defendant only, and we think it was incumbent upon it, under the condition of the evidence, to make such proof. (Shearman and Redfield on Negligence, sec. 89; Railway Co. v. Shaver (Ark.), 14 S. W. 864; Railroad Co. v. Field, 46 Miss. 573; Cooley on Torts, 2d ed., 796.) We find no error in the instructions to the jury. The judgment of the district court is affirmed, with costs. Morgan and Sullivan, JJ., concur.