Huston v. Twin & City Creek Turn Pike Road Co.

By the Court, Niles, J.: It sufficiently appears from the evidence that the injuries complainfed of were caused by the culpable negligence of the defendant in either the construction or maintenance of its road, and that there was no lack of due care upon the part of the drivers in the driving and management of the plaintiffs oxen at the time that the slide which occasioned the damage occurred. Upon the question whether the defect in the road was evidently of such a character that a prudent man in the exercise of ordinary care would not have attempted to pass over it, the testimony was substan [553] tially conflicting, and a finding in favor of the judgment will be implied. Eo proof of damages was required, as no issue was made upon that point. A denial that the plaintiff has suffered damage in the exact sum claimed by him is insufficient. (Higgins v. Wortel, 18 Cal. 330.) Judgment and order affirmed.