1 Indian Terr. 537 | Ct. App. Ind. Terr. | 1897
Several errors are assigned by th appellant in this case. But connsel for appellant state i their brief they only desire to press for the consideration c this court one, viz. “that there was no evidence to suppoi the verdict, and that the instruction asked by the defendai for a verdict in its favor should have been given. ” Th assignment makes it necessary for us to consider the test mony in the case. Appellant’s counsel have printed in the brief a synopsis of all the evidence. They certainly sta the case as strongly in their favor as the facts will admi We will quote their synopsis in so far as it relates to the li bility of the defendant company: “Paul Moffit testified < behalf of plaintiff that he lived 150 yards from the pla where the cow was killed, and saw her just as the train w knocking her off. She was struck by a loose engine. D not hear bell rung or whistle blown, or any alarm give Did not know how fast engine was running, as I never g out there to see it before it struck the cow, but when I g out there it was carrying the cow over pretty swift. ” Mi Ann Moffit testified on behalf of the plaintiff that she s£ the cow killed. Saw it struck. Whistle was not blov, Engine was running pretty fast. She happened to see t
don’t know sir, how far it was. It wasn’t so far when I rst seen it. Reckon the cow was about fifty feet from the gine on track, and was “fixing to go across.” She had 't her forefeet up first when I seen her. She then got on ack, and immediately the engine got to her. ’ Jack Chambers stifled on behalf of the plaintiff: ‘When I saw her [the w] she was going down the track, and the engine was ht upon her. Saw the cow before it was struck, and while e was running, and before the engine struck her. The w was 150 yards from the engiae, coming towards me, en I first saw it. Didn’t hear any whistle blown or bell |ng. ’ On cross-examination this witness admitted that he d been arrested for stealing coal from the railroad com-ny, and said that he saw the cow running ahead of the |gine T think 20 or 30 yards,’ and that the engine was only or 30 feet from the cow when he first saw it, and that she about 30 yards before the engine overtook her.’’ This is all the testimony for the plaintiff below, the appellee in s court. The defendunt company introduced no wit-ses, but rested its case on the deposition of J. F. Reed, engineer in charge of the engine which struck the cow. deposition was given in full, and it is as follows: “On 18th day of September, 1895, at 2:20p. m., I ran over a in the vicinity of Atoka. I don’t just positively re-mber, but I think it was a black and white cow. I saw cow near the track some time before I struck her, but ed the train down, and was not running over ten miles Ihour when I struck the cow. She was not over a rail ih from the engine when I first saw her upon track. I did not see her sooner because she not on the track, but was near the track on