| Idaho | Apr 6, 1895
This ease was before this court at its November term, 1893, and the decision is reported in 3 Idaho, 703" court="Idaho" date_filed="1893-12-07" href="https://app.midpage.ai/document/holt-v-spokane--palouse-railway-co-5168100?utm_source=webapp" opinion_id="5168100">3 Idaho, 703, 35 Pac. 39. The cause was remanded for a new trial, and ■a new trial was had upon the issues made by the original complaint and answer, before a jury, and a verdict found in favor ■of the respondent for the sum of $2,620, for which sum a judgment was entered. Thereafter a motion for a new trial was •made and denied. This appeal is from the judgment and the •order overruling the motion for a new trial. The appellant assigns nineteen errors alleged to have been committed in the trial of the caus.e.
It is insisted that the complaint does not state a cause of action. This question was passed upon in the former opinion of this court (3 Idaho, 703" court="Idaho" date_filed="1893-12-07" href="https://app.midpage.ai/document/holt-v-spokane--palouse-railway-co-5168100?utm_source=webapp" opinion_id="5168100">3 Idaho, 703, 35 Pac. 39), and the court there held that the complaint stated a cause of action. It would seem to ns that that decision settled the question, so far as that com
The first error assigned is the insufficiency of the evidence to justify the verdict. The evidence shows that the well in which the plaintiff’s child was drowned was upon the private grounds of the defendant, and remote from any street or sidewalk, and that at.the time of the accident the child was not traveling on any public street or sidewalk, but was upon the private land of defendant, without the knowledge, invitation, or consent of defendant. Nor is it shown that the defendant had any machinery or other improvements upon said lot, whatever, that would attract children there. The evidence shows-that the defendant company • purchased the lot upon which the well was situated with the intention of using it, with other-lots, for depot grounds; that the roadbed was graded along the-northerly side of said lot, along the southerly bank of the Clear Water river. Thereafter, about February, 1891, work was stopped. The contractors quit work and nothing furtherlias been done toward the completion of said road. No depot was erected, and the lots purchased for its site remained the same as when the former owners left them, after removing their improvements therefrom. The defendant did not occupy said lots for any purpose whatever. The evidence also shows that, when the person from whom the defendant company purchased the lot on which said well was situated removed her improvements therefrom, she put actable top over the mouth of said well. It is also shown that said well was covered many times, by divers persons, with planks spiked down, and with boards covered with cord wood; that campers or others would remove the covering, and leave the well open. It is shown that the well was covered as late as the fifteenth day of April, 1891, with boards, with a stick of timber across them. The mouth of the well was entirely covered. The evidence shows that the well was properly covered, "and was afterward uncovered by-strangers, without the knowledge or consent of the^defendant. The evidence further shows that it is about thirteen hundred
The ninth error assigned is that the court erred in refusing to give to the jury the following instruction requested by de
In our view of the case, it is not necessary for us to pass upon all the errors assigned. The evidence clearly Shows that the plaintiff is not entitled to recover. The judgment is reversed, and the court below is ordered to enter judgment in favor of the defendant.