15 N.M. 270 | N.M. | 1910
OPINION- OF THE COURT.
This is a suit for damages brought by James Reagan to recover from the El Paso & Northeastern Railway Co., and the El Paso and Northeastern Railroad Co., for the killing'of a mare and the injury to a jack, caused by a train run by the defendants, their agents or servants.
The cause was heard by a jury which returned a verdict for $300.00 in favor of the plaintiff and against the E. P. & N. E. Ey. Co. The railway company filed a motion for a new trial, 'and on the motion being overruled, took an appeal to this court.
In the motion for a new trial, nine alleged errors are assigned, but we will only consider the second, as the others relate to instructions either given or refused by the court, and as the instructions are not brought up with the transcript, we cannot consider them.
The second error assigned is that the trial court erred in not sustaining appellant’s motion for a new trial, because the evidence in the case does not show that the mare was killed or the jack injured by the defendants or either of them, or by their or either of their servants, agents or employees, and that the only evidence upon this ■ fact tends to show that the mare was killed and the jack injured by the El Paso and Southwestern Railway Co.
We have carefully examined the record before us in this case and can find no evidence to show that the mare was killed or the jack injured by the defendant companies or their servants, agents or employees. There is nothing in the record to show that the El Paso & Northeastern Railway Co., or the El Paso & Northeastern Railroad Co., either owned or operated the railroad where it is alleged the accidents to the animals occurred. What little evidence there is concerning this point shows that the mare was killed and the jack injured by the El Paso & Southwestern Railroad Co., and not by the defendant companies. The witness McCallum who testified for the plaintiff, on page 38, of the Transcript, says:
“Q. What railroad .are you connected with ?
A. El Paso & Southwestern.
Q. Is that this railroad running through here?
A. Yes, sir.
Q. And the only one running through here ?
A. That is the only one I see.”
And the witness Wahlenburg also a witness for the plaintiff, testified as shown on page 52 of the transcript, that he was working for the El Paso and Southwestern Bailroad, under Mr. McCallum, the witness referred to above.
With the exception of this testimony the record is absolutely silent as to who owned or .operated the railroad and the trains run thereon at the places where the jack was injured and the mare killed.
In the case at bar the plaintiff has not done this. He has proved that the jack was injured and the mare killed, but the record does not. disclose that it was done by the defendant companies or by either of them. There is no • evidence in the record to sustain the judgment against the El Paso & Northeastern Bailway Company.
The canse is for the foregoing reasons reversed and remanded.