Lewis v. Fremont, E. & M. V. R.
South Dakota Supreme Court
Appeal from circuit court, Pennington County. Hon. William Gardner, Judge. Action to recover damages for killing a horse. 'Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. Where a railway is shown to have fully complied with the statute as to the running of its train, the burden of proof is upon the plaintiff to show by a preponderance of evidence that the damage was done by the gross negligence of the railway or its employes.
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Appeal from circuit court, Pennington County. Hon. William Gardner, Judge. Action to recover damages for killing a horse. 'Plaintiff had judgment, and defendant appeals. The facts are stated in the opinion. Where a railway is shown to have fully complied with the statute as to the running of its train, the burden of proof is upon the plaintiff to show by a preponderance of evidence that the damage was done by the gross negligence of the railway or its employes. Yolkmann v. Bailroad, 5 Dak. 69; Gay v. Bailroad, 5- Id. 514;. Wainscott v. Bailroad,-3 Bush. 149; Packwood v. Bailroad, 7 A. & E.…
1Opinion of the CourtFuller, J.
Respondent brought this action and obtained a judgment for the value of a-horse killed upon appellant’s railway track by a passing engine. There is no material conflict in the evidence, and it is contended that defendant’s motion to direct a verdict at the close of the testimony should have been granted. *185Plaintiff, who was in the employ of the defendant as a section laborer at the time the horse was killed, testified as follows: “I didn’t see the horse killed. I saw the horse Saturday night. It was in a cnt on the prairie. They come ■ out of a field, — a small field, — and go into this cnt.…
2Cases cited2 opinions
- Harrison v. Chicago, M. & St. P. Ry. Co.South Dakota Supreme Court · 1894
- Hebron v. Chicago, M. & St. P. Ry. Co.South Dakota Supreme Court · 1894