12 Okla. 367 | Okla. | 1903
Opinion of the court by
The record shows that this action was-brought in the probate court of Canadian county against the plaintiff in error to recover the sum of $210, the alleged value-of two cows and one horse killed by defendant’s train. The right of action is based upon sections 1047, 1048 and 1049 off the laws of 1893, which provide that under certain conditions-therein named a railroad company shall be required to build' and maintain a fence along its right of way. The conditions under which a railroad company may be required to build a-fence are, first, that the railroad shall pass through or upon the lands of another. Second, that the owner of the land shall' construct a good and sufficient fence about the tract of land on-all sides, excepting the side abutting against the railroad. Third, when the owner of any tract of land shall have completed his portion of the fence, he shall give written notice to the-railroad company upon whose line the tract is situated.
The petition alleges all the essentials except that of the-notice. The record discloses the fact that the defendant in er
Numerous errors are assigned in tbe petition in error, many of which are not contended for in tbe brief. Tbe 'first error complained of is that the probate court had no jurisdiction to try this cause, and that the jurisdiction of tbe district court, being only appellate, acquired only tbe jurisdiction of! tbe probate court. The last part of this proposition, viz: that tbe district court could acquire no jurisdiction other than that-possessed by the probate court, is undoubtedly true, but we-think the probate court had jurisdiction to try the cause. • The-only reason urged against the jurisdiction of the probate- court;, by the plaintiff in error is that under the organic act probate-courts do not have jurisdiction in any matter where the title- or boundaries of land may be in dispute, and that inasmuch as only the owners of the land may require the’ railroad compahy' to build a fence'along its right of way, that, therefore, it is necessary to allege and prove that the plaintiff is the owner of
The second claim of error is that the petition fails to state a cause of action against the defendant, in that it fails to allege that the railroad company had been served with the statutory notice, so as to bring to the knowledge of the company the fact that the owner had complied with the statute in enclosing his land with a sufficient fence. It is claimed that this notice is a condition precedent, and, if not given, that the company is not required to build the fence, and that, if the fence is constructed, that then the company is not liable for any injury if the fence or gateway is negligently allowed to get out of repair, and injury is caused thereby.
Reference is made to the case of McCook v. Bryan, 4 Okla. 488. That case, however, is hardly applicable here, as in that case there was no constructing of a fence by either the owner of the land or the railroad company, and of course the question of building the fence, as well as the notice, are prerequisites to the-right of recovery. This first assignment of error raises -the- question as 'to whether this statutory notice can be
The second section provides that when the owner shall have built his fence about such proposed enclosure, he shall .give written notice to the railroad company, and after this notice has been given, if the railroad company shall neglect or refuse to comply with the requirements of the act, the owner may build the fence and recover the value, and the railroad company shall be liable for damages accruing by reason of its neglect. The purpose of this notice is .to draw the attention of the company to the fact that the owner of abutting land has complied with this statute, and when the notice is given the liability becomes fixed. But this is in eases when the owner has enclosed vacant land. In the case at bar the record shows that when the railroad company built its line of road through this land the same was fenced, and the railroad company, whether,with or without notice, proceeded to construct just .such a fence as the law requires to be constructed upon notice.
The Arkansas statute cited by the plaintiff in error is not like ours. There it is provided that the ten days’ notice in writing shall be given, whether the lands were enclosed at the time of the construction of the railroad or were enclosed thereafter. Our statute contemplates eases where the land is not en
Tbe question of tbe value of tbe animals killed becomes material in this ease. The value alleged in tbe petition was $210. This was denied by tbe answer. Tbe plaintiff was tbe only witness who testified upon tbe question of value at tbe trial, and bis testimony upon this question was as follows:
“Question. What is your business? Answer. A farmer.
“Ques. Can you tell about tbe value of these cows? A. I guess so. I have been twenty years on tbe farm.,
“Ques. Now just tell tbe court and jury what they actually was worth.”
The defendant objected to tbe last question as being incompetent, irrelevant and immaterial, and the competency of tbe witness not being shown. Tbe objection was overrated, and an exception saved. Tbe plaintiff t]ien testified that the animals were of tbe value of $150. Tbe plaintiff in error insists that it was material error to allow tbe witness to testify under tbe circumstances to tbe value of the animals killed, and that the question is squarely raised whether tbe statement that be was a farmer qualified him to testify to the market value of tbe cattle and horses, without any showing whatever, that be bad any knowledge of tbe market, or what such animals bad been bought and sold for. We think the, plaintiff was competent to testify as to tbe value of this stock. In tbe case of Filson v. The Territory, 67 Pac. 473, it was held by this court, Burford, C. J., delivering the opinion, that “farmers who buy
In tbe case of Brown v. Moore, 33 Mich. 254, it was held that tbe opinion of a farmer as to tbe value of a borse or stallion was admissible. Tbis doctrine is also upheld in tbe case of Mason v. Patrick, 100 Mich. 577, and in tbe case of Gere v. Insurance Company, 67 Iowa, 272. Illustrations of tbis class of opinion evidence may be found in Lawson on Expert and Opinion Evidence, beginning at page 15.
Tbe next error complained of was tbe giving of instruction number one, in which the court directed the jury that in case they should find for the plaintiff they should assess bis damages at the sum of $150. By tbis infraction the court took from the jury the question of the value of the stock killed. Tbe question of value is usually a question for tbe jury and unless there is something in tbis case to make it an exception to tbe general rule, this instruction was error. Tbe only testimony upon the point was that given by the plaintiff, which was allowed to go to the jury over the objection and exception of the defendant. It may be noticed that the statement of value is here a matter of opinion. It is claimed by the defendant in error that there was no contention on the trial concerning the value of the stock killed. The record however, does not bear out this theory. The allegations of the petition in this regard were denied by the answer, and the evidence offered under this head was objected to, so it can hardly be said
We think the jury was under no obligation to believe the plaintiff in this case, unless he convinced their reason, the same as in any other case, and they would have been entirely at liberty to reject his testimony altogether if they did not believe it to be true, and it did not convince their reason.
The supreme court of Kansas, in the case of Callison v. Smith, 20 Kan. 28, having under consideration this identical question, came to the conclusion that because a witness testified to a matter in which he was not contradicted, it did not necessarily follow that he must be believed, and giving as an illustration the fact that the very matter stated by the witness might be too improbable to be believed by any intelligent person, and its mere statement its own refutation, without a word of impeaching or contradictory testimony.
The fact “that the evidence is all on one side does not, it has been held, authorize the court to direct the jury that it proves a fact in controversy; its sufficiency is for them." (Thompson on Trials, sec. 1037; Charleston Ins. Co. v. Corner, 2 Gill. [Md.] 411.) The jury have the same power to refuse their credit to the testimony under these circumstances, as they have where the testimony is contradicted, and no action of the court should control the exercise of their admitted right to weigh its credibility. The weight of the evidence always involves the consideration of the credit to be given to the witnesses, and this is the exclusive province of the jury. The court, has no right to invade the province of the jury by attempting to pass upon the credit of the witnesses, or to determine what weight is to be given to the testimony of any witness. (Coudy v. St. L. I. M. & S. Ry Co., 85 Mo. 79) A court cannot instruct a jury to find a controverted fact proven by oral testimony. (Curry v. Curry, 114 Pa. St. 367.) If a judge cannot instruct a jury to find a controverted fact, with greater force would the rule apply that he cannot assume a controverted fact as proven and take it from the jury entirely.
Therefore the judgment of the lower court is reversed, and the cause remanded with directions to grant a new trial.