Kitchen v. Missouri Pacific Railway Co.

Martin, C. The plaintiff sues under section 809 of the Revised Statutes of 1879, for double damages on account of the killing of a mare. The case, on appeal from the justice, was tried by the court without aid from a jury, and judgment was rendered in favor of the plaintiff in the sum of $70, which was, on motion of plaintiff, doubled. From this judgment the defendant appeals. The principal objection urged against the judgment is, that the court allowed the plaintiff to amend his petition in the upper court, after appeal to that tribunal. The original petition alleged that the mare was killed in Union "township. The suit was commenced before a justice of the peace in Sugar' Creek township, but failed to state that Union township, in which the accident occurred, was an adjoining township. The petition was unobjectionable in other respects, and the court permitted the plaintiff to amend it by adding the necessary allegation to that effect. In Mitchell v. Railroad Co., ante, p. 106, the right of the appellate court to permit an amendment of this character, was considered and approved. The action of the court in refusing a continuance, was [688] not such as to indicate any abuse of its discretion in matters of this kind. The objection that the evidence fails to negative the possibility of the mare being killed inside of the corporate limits of a town or city, is not sufficient to-justify a reversal. The bill of exceptions purports to set out only the tendency of the evidence. I think the statement of the tendency of the evidence, meagre as it is,, would warrant a jury in finding that the place of killing-was not within the corporate limits of a town or city. I. think they had the right to infer that from the testimony of the plaintiff’, in absence of any testimony from the defendant, as to the place of killing. The judgment should be affirmed, and it is so ordered. All concur.