11 S.D. 471 | S.D. | 1899
Plaintiff had judgment in this action to recover the value of certin cattle killed, and damages for injury to others, occasioned by a passing freight train; and the defendant appeals.
While admitting that respondent sustained the damages made the basis of his claim, counsel for appellant contends that the undisputed evidence rebuts the presumption of negligence created by the statute, and that his motion for the direction of a verdict should have been sustained. The case was one for the jury, if all the testimony introduced .at the trial bearing upon the question of negligence presented a material conflict of evidence, so that different, impartial minds might reasonably reach different conclusions; and in that event the question was rightfully determined. Sheldon v. Railway Co., 6 S. D. 606, 62 N. W. 955; Hutchinson v. Railway Co., 9 S. D. 5, 67 N. W. 853. The accident occurred in day-time, at a place unobstructed and according to appellant’s witnesses, open to the view of the approaching engineer and trainmen for a distance of at least one-half mile. The engineer testified that he saw the cattle on the right of way when about one-half mile from them, and that
From a careful consideration of all the remaining points raised at the trial by counsel for appellant, and discussed in his brief, we are convinced that the record presents no reversible error; and the judgment appealed from is affirmed.