Union Pacific Railway Co. v. Thorne , 51 Neb. 472 ( 1897 )

Norval, J.

Plaintiff below sued the defendants for the alleged killing of a bull by a locomotive and train on defendants’ road. The petition charges the defendants were negligent in the operation of the cars, and that they neglected to build and maintain a fence as required by statute at the place where the animal was killed. The defendants answered the averments of the petition and plaintiff replied. There was a trial of the issues to a jury. Verdict in favor of plaintiff. A new trial was denied and judgment was rendered on the verdict.

It is insisted that the evidence shows there was no negligence on the part of the defendant companies, unless it was on account of a failure to fence the track where the bull was struck and killed, and that there was no duty to fence their road at that point imposed by statute. These matters can be determined alone from a consideration of the bill of exceptions, and that document must be disregarded for the reason that it is not authenticated in the manner prescribed by law. It is true there is attached to the transcript a certificate of the clerk of the court below w"hich states “the foregoing to be a true and correct copy of all such pleadings and orders in the above entitled action as are named and indicated in the above index, as the same appears on file and of record in my office.” This is insufficient to show that either the original bill of exceptions or a copy thereof is included in the transcript. A bill of exceptions is neither a pleading nor order; hence is not embraced in the certificate of the clerk of the district court. The bill of exceptions must, 'therefore, be disregarded in this court. (Felber v. Gooding, 47 Neb., 38; German Nat. Bank v. Terry, 48 Neb., 863.) We must indulge the presumption that the evidence adduced on the trial fully established that it was the duty of the railway companies to fence their tracks at the point at which the bull entered from their right of way, and that they wrongfully failed so to do, or that their servants negligently operated the train at the time of the accident.

Two paragraphs of the court’s charge, Nos. 5 and 7, are assailed in the brief filed, but they cannot be reviewed, because improperly assigned for error in the motion for a new trial. The charge consisted of nine consecutively numbered paragraphs, and they were grouped in one assignment in the motion for a new trial. To be available each instruction would have to be bad, under the uniform holding of this court. Instruction No. 6 told the jury that the burden of proof was upon the plaintiff below, and the ninth paragraph of the charge directed the jury that they were the judges of the credibility of the witnesses, . Neither of them being prejudicial to defendants, tbe assignment as to instructions given must be overruled.

Complaint is made of tbe refusal of tbe court to give tbe following instructions requested by tbe .defendants:

“3. You are instructed that tbe defendants were not required by law to fence where tbe injury occurred.

“4. You are instructed to bring in your verdict in favor of tbe defendants.”

Tbe correctness of these requests depends entirely upon tbe evidence before tbe jury, which we cannot consider because tbe bill of exceptions is not authenticated.

No reversible error appearing upon tbe face of tbe record, tbe judgment is

Affirmed.

Harrison, J., not sitting.