Halseth v. South Dakota Central Railway Co.

South Dakota Supreme Court

Halseth v. South Dakota Central Railway Co.

147 N.W. 992, 34 S.D. 226, 1914 S.D. LEXIS 108

CourtSouth Dakota Supreme Court

DecidedJune 29, 1914

StatusPublished

Cited by1 cases

This text of 147 N.W. 992 (Halseth v. South Dakota Central Railway Co.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Halseth v. South Dakota Central Railway Co., 147 N.W. 992, 34 S.D. 226, 1914 S.D. LEXIS 108 (S.D. 1914).

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Opinion

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]*228bogs.” 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.

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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]*228bogs.” 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.

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147 N.W. 992, 34 S.D. 226, 1914 S.D. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/halseth-v-south-dakota-central-railway-co-sd-1914.

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