21 P. 416 | Idaho | 1889
This action was brought by the respondent under the statute of this territory to recover damages for certain horses alleged to have been killed by the locomotive and cars of the appellant. The appellant demurred to the complaint, which demurrer was overruled, whereupon the appellant interposed an answer, admitting the incorporation of the defendant, but placing in issue the remaining facts set out in the complaint. Upon the trial of the issues the plaintiff proved the killing of the horses alleged to have been killed, their value, and rested. At the conclusion of the trial the defendant requested the court to charge the jury as follows: “The court charges you that though you may believe that the defendant killed each of the horses sued for by running its engine and ears over against the same, yet, if you further believe by a preponderance of evidence that the defendant, by its agents, in killing any of plaintiff’s horses, acted as an ordinarily prudent and reliable person would under similar circumstánces, then the plaintiff is not entitled to recover for the horses so killed, and your verdict as to such horses should be for the defendant; that mere proof of killing plaintiff’s horses is not sufficient evidence to show that defendant did not act as an ordinarily prudent and reasonable person would act under similar circumstances.” The defendant’s counsel excepted to the refusal of the court to charge as requested, and this exception raises the only important question of this case, and that is the constitutionality of the statute under which the suit is brought and sought to be maintained; for the refusal to so charge cannot be upheld except upon the statute. The statute (section 2680 of the Eevised Statutes of Idaho) provides that “every railroad company operating any line of railroad within