39 Kan. 329 | Kan. | 1888
The opinion of the court was delivered by
This was an action commenced in the district court of Linn county, by Charles Foster against the Kansas City, Fort Scott & Gulf Railroad Company, under the railroad stock law of 1874, (Comp. Laws of 1885, ch. 84, §§ 29-34,) to recover for the killing by the railroad company of three mares belonging to the plaintiff. The case was tried before the court and a jury, and after the plaintiff had introduced all his evidence and rested, the defendant demurred to the evidence upon the ground that it did not prove any cause of action, and the court overruled the demurrer. No further evidence being introduced, the court charged the jury, and the jury found a verdict in favor of the plaintiff and against the defendant for $275, the value of the animals killed, and $62.50 as attorney’s fees. The defendant then moved the court for a new trial upon various grounds, which motion was overruled, and the court then rendered judgment in favor of the plaintiff and against the defendant, in accordance with the verdict of the jury; and to reverse this judgment, the defendant, as plaintiff in error, brings the case to this court.
The only ground upon which it is sought in this court to have the judgment of the court below reversed is, that the evidence introduced on the trial does not prove any cause of action, and that the verdict of the jury and the judgment of the trial court are not sustained by sufficient evidence. It is admitted that the plaintiff’s animals were killed by the railroad company, but it is claimed by it that the killing was done without negligence, and at a place where its road crosses a
In the case of Christie v. Barnes, 33 Kas. 317, it was held as follows:
“A demurrer to evidence admits every fact and conclusion*332 which the evidence most favorable to the other party tends to prove.”
In the case of Wolf v. Washer, 32 Kas. 533, it was held as follows:
“Upon a demurrer to evidence, the court cannot weigh conflicting evidence, but must consider as true every portion of the evidence tending to prove the case of the party resisting the demurrer.”
In the case of Brown v. A. T. & S. F. Rld. Co., 31 Kas. 1, it was held as follows :
“Where the defendant in a case which is being tried by a jury, files a demurrer to the plaintiff’s evidence, on the ground that the evidence does not prove any cause of action, held, that unless the plaintiff has utterly failed by all his evidence to prove his case, or some material fact in issue in the case, the demurrer should be overruled.”
See also the following cases: K. P. Rly. Co. v. Couse, 17 Kas. 571; Merket v. Smith, 33 id. 66. With respect to verdicts of juries, this court in the case of K. P. Rly. Co. v. Brady, 17 Kas. 380, 382, used the following language:
“This court reverses judgments for insufficiency in the evidence only where the evidence most favorable to the findings made in the court below fails to prove prima faeie some material fact necessary to be found in the case in order to uphold such findings, or where such prima faeie proof has been rebutted and overcome by that kind of evidence which of itself is conclusive, and whose weight and value belong to the court to consider, such as written instruments, documents, and record evidence.” (See also the cases there cited.)
It has also been held by this court in the case of Osborne v. Ehrhard, 37 Kas. 414, as follows:
“The fact that the verdict of the jury is against the weight of the testimony, which is conflicting, will not authorize the supreme court to set the verdict aside, or to reverse the judgment rendered thereon.”
Also, see the following cases: Bridge Co. v. Murphy, 13 Kas. 35, 40; Johnson v. Leggett, 28 id. 590; Armel v. Layton, 29 id. 576; U. P. Rly. Co. v. Diehl, 33 id. 422, 426; Sulli
The engine that struck the animals in the present case was moving southwardly. The animals when found were all south of the crossing, as before stated, and their heads were toward the south. There was also a side switch about sixty yards south of the crossing, and one of the witnesses who testified on the trial stated that he heard the engine strike the animals and also strike the switch, and that the two sounds were almost simultaneous. He did not see this, for although he was near by at the time, he was in his house, and it was dark, being about nine o’clock at night, about the last of January, 1885.
The judgment of the court below will be affirmed.