9 S.D. 5 | S.D. | 1896
This was an action to recover the value of certain live stock, alleged to have been killed by the negligence of the defendant. Judgment for plaintiff, and the defendant appeals.
Plaintiff made out a prima facie case by proof that his stock was killed by the train of the defendant, one steer being killed in October, and the other animals in .November, 1892. The defendant, to rebut the presumption of negligence arising from the killing of the live stock in November, and to disprove negligence on its part, called as witnesses its engineer, conductor and two brakemen, in charge of the train of the defendant at the time' of the accident in November. The evidence of these witnesses tended to prove that the train that ran into plaintiff’s stock was a “special” comprising engine, two freight cars, and
The appellant further contends that the plaintiff was guilty of contributory negligence, and therefore cannot recover in
As to the steer killed in October there does not seem to be any serious controversy, as the defendant introduced no evidence tending to rebut the presumption arising from the killing of that steer. Finding no error in the record, the judgment of the circuit court is affirmed.