91 P. 176 | Idaho | 1907
This action was commenced in the probate court of Elmore county to recover for damages alleged to have been sustained by reason of the defendant herding and grazing his sheep on the land of plaintiff and within two miles of his residence under what is known as the two-mile limit law. Judgment was rendered in favor of the plaintiff and an appeal was taken by the appellant to the district court of said county, where the cause was tried de novo. Upon the trial of the case in the district court the jury returned a verdict in favor of the respondent for $125 and costs of suit. A motion for a new trial was overruled and this appeal is from the judgment and the order overruling the motion for a new trial. The errors relied upon are the insufficiency of the evidence to justify the verdict and in the admission and rejection of certain testimony, and in the giving of a certain instruction. One of the main contentions is that the evidence does not show that the sheep mentioned in the complaint belonged to the appellant.
We have examined all of the evidence contained in the record, and it is shown that the sheep which it is alleged did the damage bore two brands; about five-sixths of them were branded V. T. and about one-sixth with a blotch or dot U. or a horseshoe dot brand. The latter brand is designated in the evidence as the horseshoe dot by some of the witnesses, and by others as the dot U. brand. It was admitted by the appellant in his testimony that his sheep bore those brands, but his evidence tended to show that his sheep were not on or near plaintiff’s ranch, and for that reason could not have been the cause of the damage sustained by plaintiff. The plaintiff introduced no direct evidence as to the fact that appellant owned said sheep. He only showed that the brands on the sheep were the same brands used by appellant.
Assignments of error numbers 4, 5, 6, 7, 8 and 9 are based on the rulings of the court in sustaining respondent’s objections to questions which were designed to impeach the respondent and one of his witnesses. As no proper foundation had been laid for such impeachment, it was not error for the court to sustain the objections to such questions.
It is contended that the court erred in giving its third instruction to the jury, for the reason that the element of preponderance of evidence was omitted from this instruction, as that instruction does not define what is meant by a preponderance of the evidence. Instruction No. 7 clearly and fully defines that term, and there is nothing in that contention.
From the foregoing . we arrive at the conclusion that the judgment must be reversed and a new trial granted, and it is so ordered, with costs in favor of the appellant.