4 S.D. 71 | S.D. | 1893
This was an action to recover damages alleged to have been sustained by the plaintiff through the negligence of the defendant, in permitting sparks to" escape from its engine used on the line of its railway, whereby a quantity of hay belonging to the plaintiff was destroyed. Verdict and judgment for plaintiff. Defendant appeals.
1. The first question presented is as to the effect of certain special findings of the jury, made in connection with their general verdict, which are as follows: “Special: (1) Did the fire that destroyed plaintiff’s hay start from sparks emitted by defendant’s engine? Answer. Yes. (2) If your answer to
2. It is further contended, however, by counsel for the appellant, that this finding of the jury is not supported by the
3. It is further contended by the counsel for the appellant that the court erred in calling the jury’s attention to the fact of the other two fires. We are unable to discover any error in this, as the question of whether ox not the fact that the engine set two other fires about the same time constituted competent evidence tending to prove that the engine was in a bad condition, or was improperly equipped, was a question of law, and it was the duty of the court to charge the jury upon the subject. It may be that the court would have been justified in refusing to give the plaintiff’s instructions upon the ground that it had instructed the jury upon the subject in his general charge, but that was a matter in the discretion of the court; and the fact that the court speaks of it in its general charge, and also gives a special instruction on the same subject, not inconsistent with his general charge, constitutes no ground of error.
4. The counsel for the appellant further contends the court erred in refusing to give the following instruction which the defendant requested the court to give: ‘‘If you should believe from the evidence in this case that the plaintiff’s hay was destroyed by a fire negligently set out from, or started by, one of the defendant’s engines, you would not be justified in returning a verdict for him, if you should find he had not properly guarded