19 Mont. 147 | Mont. | 1897
This appeal was submitted on briefs. Appellant asks for a reversal only on the grounds that the act of 1891 is unconstitutional, and that the evidence shows plaintiff was guilty of contributory negligence, as alleged in the complaint. The brief filed in its behalf is silent as to any error committed by the lower court in instructing the jury or ruling on the evidence. From the record it clearly appears that there was a conflict as to whether the fence was a sufficient one under, the statute, and as to whether the cattle had broken through the fence, or gone upon the track through an open gate. It does not appear that the gate was left open by the owner of the cattle or any one else. The court instructed the jury that if the gate had been left open by any one other than defendant, and from such negligence the cattle were killed, plaintiff could not receiver. The jury evidently found that the cattle had broken through the fence. There was ample evidence to support the verdict on the ground of the insufficiency of the fence. There was also evidence to show that the gate was an insufficient one. Under these circumstances, the rule as to a conflict in the evidence must control, and the authorities cited by appellant as to contributory negligence are inapplicable. We hold the law constitutional. It is substantially the Iowa statute on the same subject. Its
Affirmed.
