Lockhart v. Hewitt

18 S.D. 522 | S.D. | 1904

Puller, J.

At the trial of this action in claim and delivery to recover the possession of certain cattle impounded by the defendant under an ordinance of the city, and. after both parties had rested, the court withdrew all evidence from the jury, excepting such as related to damages alleged to have been sustained by plaintiff on account of the wrongful detention of such property. Without questioning the validity of the ordinance, the trial court'held, as a matter of law, “that the plaintiff used ordinary care and diligence in herding his stock to keep them from going within the limits of Rapid City, and that the only question to go to the jury is the matter of damages.” All testimony pertaining to plaintiff’s damages consists of conclusions introduced over valid objections, and the evidence with reference to a violation of the ordinance is such that the jury might reasonably find for the defendant. The facts being such that different impartial minds might reasonably draw different conclusions from them, they should have been submitted to the jury. Haugen v. Chicago, M. & St. P. Ry. Co., 3 S. D. 394, 53 N. W. 769; Land & Irrigation Co. v. Hawley, 7 S. D. 229, 63 N. W. 904; McKeever v. Homestake Mining Co., 10 S. D. 599, 74 N. W. 1053; Kielbach v. Chicago, M. & St. Paul Ry. Co., 13 S. D. 629, 84 N. W. 192.

The judgment appealed from is reversed, and a new trial ordered.