28 S.D. 300 | S.D. | 1911
This action was brought by the administratrix of the estate of Marie E. Zimmerman, deceased, to recover damages for the alleged wrongful construction of the defendant’s railway across a quarter section of land in 1905, then the property of the deceased. So far as material, the court charged the jury as follows: “The railway company claims it acquired the right of way by a written contract. This contract, which has been introduced in evidence here, provides: ‘For a consideration of one dollar and other consideration and the benefits to the neighborhood,’ etc., ‘may construct the road across there upon a line as now staked out and located upon, over and through the land described.’ * * * The plaintiff contends that the railroad was not built upon that survey, but that the survey was changed; that the road was built upon another line; and that raises a question of fact for you to determine. If you find that the road was built as it now is, upon the permanent survey, and that that survey had been made and staked out there before the signing of that con
The denial of defendant’s motion for judgment, notwithstanding the general verdict, is the only error assigned. -This being so, the court’s charge must be regarded as correctly defining the issues of fact upon which the jury was required to pass in determining whether the plaintiff was entitled to recover, and it must
Apparently, the real controversy in the case at bar was whether the defendant’s road was constructed on the line contemplated by the parties when the right of way contract was executed; but that was not the issue that was submitted to the jury. They were insructed to find for the plaintiff: (1) If they believed that the “permanent survey” was made after the contract was executed; or (2) if they believed the “permanent survey” had been changed and the road built on a line different from the “permanent survey” as staked out when the contract was executed. The presumption that the jury followed the court’s instructions should prevail unless the facts stated in the special finding are inconsistent with both propositions embraced by the charge. The facts or fact established by the special finding, transposing the language of the interrogatory, is simply this: Defendant had surveyed and staked out its road on the line where it was afterwards built prior to the making of the contract. Clearly, this cannot be construed as a finding that the “permanent survey” was made before the contract was executed, especially when the record discloses “that the evidence of both plaintiff and defendant tended to show that certain lines of survey had been made by the defendant company at the place and also to the east and west of the present constructed line, which was evidenced by stakes or pieces of lath driven in the ground at the time defendant’s agents and representatives showed plaintiff where it proposed to construct its roadbed.” The survey
Therefore, the defendant was not entitled to judgment, notwithstanding the general verdict, and the judgment of the circuit court should be affirmed.