147 N.W. 992 | S.D. | 1914
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.
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.