76 Neb. 549 | Neb. | 1906
The plaintiff recovered judgment in the district coyrt for Dawson county for the killing of ten head of cattle. Plaintiff was the owner of part and bailee of part of the cattle in controversy, and also of other cattle, which were, on the morning of the accident, confined in a pasture adjoining the railroad right of way. On July 11, 1903, an unusual wind, rain and hail-storm drove the cattle through the fence onto the defendant’s right of way. Plaintiff alleges that the employees of defendant negligently ran one of its trains upon the cattle, killing seven head owned by plaintiff and three head in his custody as bailee. Plaintiff had judgment, and the defendant prosecutes error to this court.
Defendant further contends that the plaintiff was guilty of contributory negligence in that he failed to use diligence in protecting his property. The cattle divided into two herds upon defend ant’s, right of way. Immediately following the storm, plaintiff started from his home, hastened to defendant's right of way, and drove therefrom the herd -of-
2. Error is predicated upon the refusal of the trial court to instruct the jury as requested by defendant. An examination of the record discloses that no exceptions were taken to the refusal of the court to give defendant’s requested instructions. Hence, under the rule often announced by this court, we cannot revieAV the action of the district court in refusing to instruct the jury at defendant’s request. Holloway v. Schooley, 27 Neb. 553.
3. One of the instructions refused pertained to the recovery of damages by plaintiff as bailee of the three head of cattle killed, and, as that would affect the question as to the sufficiency of the evidence to entirely support the verdict, we are required to consider the proposition, though not the alleged error as to the instruction. Plaintiff was in possession under a contract with the owner Avhereby he Avas entitled to one-half of the offspring of the cattle bailed. This question has not, to our knowledge, been decided by this court; but we believe, while that question has been considered in other courts, it has, without exception, been held that a bailee of property having an interest therein under an express contract may maintain an action for the negligent destruction of the property bailed. In Chamberlain v. West, 37 Minn. 54, 33 N. W. 114, it is said: “Nothing is better settled than that, in actions for torts
Finding no reversible error in the record, we recommend that the judgment of the trial court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.