Cleland v. Minneapolis & St. Louis Railway Co. ( 1882 )

"Vanderburgh, J.

This action is to recover the value of plaintiff’s cow, killed on defendant’s railroad track. The question involved is solely one of fact as to the place where the cow was killed — whether, when struck by defendant’s engine, she was standing on the defendant’s track, in a lane built across it for the convenient crossing of plaintiff’s cattle, or whether she was at the time in an open space north of the lane, where, for a distance of about 30 feet on each side of the track, the defendant had neglected to erect any fence. It was conceded in argument that if she was in the former place at the time, the plaintiff ought not to recover, but if in the latter, defendant is liable. This was the question submitted to the jury, and the trial court has refused, in its discretion, to disturb their verdict. The only question for this court is to determine whether, by any fair intendment, the verdict for plaintiff can be supported upon the evidence. We think there was evidence on the part of plaintiff for the jury. They were entitled to judge of the place where the cow was killed by the place where she was found, her position near the track, the distance she would naturally have been thrown or carried, as inferred from the evidence of the manner in which she was struck by the engine, together with other facts and circumstances in evidence. Keyser v. K. C., St. J. & C. B. R. Co., 56 Iowa, 440. We discover no error in law or abuse of discretion in the trial court in refusing a new trial in this case entitling appellant to a reversal. Karsen v. Mil. & St. Paul Ry. Co., ante, p. 12.

Order affirmed.