Halseth v. South Dakota Central Railway Co.

GATE'S, J. Action for damages for hogs killed by defendant’s train. The jury found the value of the bogs to be $87.50. The court rendered judgment for double that amount together with ■costs and disbursements. From the 'judgment defendant appealed urging three principal grounds of error: (a) the uncon'stitutionality of the double damage statute (chap. 218, Raws -of 1907) ; (b) the. refusal to direct the verdict because of the absence of evidence as to the ownership of the bogs; (c) that plaintiff was and that de-dendant was not negligent. Since the entry of judgment and the preparation of appellant’s brief, the supreme -court of the United States in the case of C. M. & St. P. Ry. Co. v. Polt, 232 U. S. 165, 58 L. Ed. —, 34 Sup. Ct. Rep. 301, 'has reversed the judgment -of this court in -the case of Polt v. C. M. & St. P. Ry. Co., 26 S. D. 378, 128 N. W. 472. That court held the double damage feature of chap. 215, Laws 1907, to be obnoxious to the rudiments- o-f fair play. Because of s-uch decision upon the validity of the railway fire statute respondent concedes that the sum of $87.50 -must be deducted from the judgment in -this case. [1] The ¡proof as to the ownership of the hogs was meager, -but we think it 'sufficient as- against a motion to direct the verdict. Plaintiff lo-st eight -hogs and while he did not testify as to having seen them at the time of or after the accident, a neighbor did. The neighbor testified: “I know whose hogs these were because I had seen them in -plaintiff’s yard and could identify -than as the same [228] bogs.” While this assertion of ability to identify them was weakened by his subsequent testimony, we cannot say that, as a matter of law, there was no proof that plaintiff owned .the hogs. ■ [2] The question off negligence was, as has often 'been said, for the jury to determine under -proper instructions- from the court. No reason has been advanced which would- justify this court in reviewing -that question. The judgment of the trial court is modified by deducting therefrom the sum of $87.50 -and as so modified it is affirmed. Costs will not -be taxed1 .by or against either party’in this court.