32 Wash. 450 | Wash. | 1903
The opinion of the court was delivered by
This is an action to recover damages for the loss of two cows belonging to «respondent, and killed by appellant’s train of cars upon its railway track. The original complaint alleged damages in the sum of $200 for the value of the cows, $25 special damages, and damages at the rate of $2 per day from the date the cows were killed. Upon motion of appellant, the allegations of special damages were, by order of the court, stricken out of the complaint, and an amended complaint filed wherein respondent alleged his damages at $200, the value of the cows. The answer, after denying the material allegations of the complaint, pleaded that plaintiff carelessly and negligently permitted the cows to run at large and willfully abandoned them at and near the right of way of the railway company; that the loss of the animals was caused by the negligence of the respondent. The reply denied these allegations of the answer. On these issues the cause was tried before the court with a jury, which returned a verdict in favor of the respondent for $150. Judgment was entered on the verdict, and from this judgment defendant appeals.
Respondent moved to dismiss the appeal upon the ground that the amount in controversy does not exceed the sum of $200. The constitution provides (art. 4, § 4) that the ap.pellate jurisdiction of the supreme court “shall not extend to civil actions at law for the recovery of money or personal property .when the original amount in controversy or the value of the property does not exceed the sum of
. Errors 1 and 2 are based upon rulings of the lower court permitting plaintiff to testify as to the quantity and value of milk given by the cows. This class of evidence was offered as tending to show the value of the cows. We think it was competent for that purpose. The value of the cows was ah issue in the case. The cows were chiefly valuable for milk, and the quantity and value thereof was a factor which the jury had a right to consider with other evidence in arriving at their market value.
“If you find that the railroad track at the point where the cattle were killed was not fenced so as to turn stock from the track, this is prima facie evidence of negligence on the part of the company.”
The statute, at § 4332, Bal. Code, provides that, “it shall be pi'ima facie evidence of negligence on the part of the defendant to show that the railroad track was not fenced so as to turn said stock from the track.” The instruction was clearly within the terms of the statute. It was not contended in the case that the natural barrier was anything more than a steep hill or bank along one side of the track for a distance of about sixty feet, and a fill on the other side. There was nothing to prevent stock from going upon the track at this point. It is no doubt true that natural barriers are equivalent to a legal fence where they answer the purpose of a fence and are used as such in connection with a fence; but where there is no attempt to fence the track, and the barriers, though competent for the purpose, are not used as a fence, and there is free access at each end of such barriers, they cannot be held to constitute a fence. If the track had been fenced for a distance of sixty feet on each side thereof and the ends not closed thereby allowing free ingress and egress upon the track to stock, it could not be held to be a fence “so as to turn stock from the trackBor this reason the rulings of the court, both in excluding the evidence and in giving the instructions, were Correct. There was no evidence whatever in
There is no error in the record, and the judgment is therefore affirmed.
Fullerton, O. J., and Hadley, J., concur.
While I fully concede that the conclusion announced in the foregoing opinion upon the merits of this case is correct, I am of the opinion that the motion to dismiss the appeal should have been granted, upon the ground that this court has no jurisdiction of the cause. When the amended complaint was filed, the first complaint became functus officio, and of no more force than if it had never been filed at all. And since the plaintiff, in the amended complaint on which the trial was had, alleged in effect that he had been damaged in the sum of $200, and demanded judgment for that amount only, it appears clear to my mind that the amount in controversy, not being in excess of $200, was not sufficient to confer jurisdiction upon this court. I think the amount actually sought to he recovered at the time of the trial must he held to he the “original amount in controversy” within the meaning of the constitution.
Dunbar, J., concurs with Anders, J.