DocketNumber: No. 5183; No. 2787 C. A.
Citation Numbers: 38 Colo. 239
Judges: Bailey
Filed Date: 9/15/1906
Status: Precedential
Modified Date: 7/20/2022
delivered the opinion of the court:
This action was brought by appellee in the county court of Otero county to recover triple damages, alleged to have been sustained by plaintiff because of appellant permitting its hogs to- run at large and injure the crops of appellee-, who was a farmer occupying leased ground within the exterior boundaries of the large farm known as the Boston Farm, owned by appellant.
The alleged trespass was in 1900. The crops said to have been destroyed or injured consisted of alfalfa, cantaloupes, corn, vegetables and garden truck. Judgment appears to have- been given the plaintiff in the county court, and the- defendant appealed to the district court. In the district court, single damages in the sum of $362.50 were found by the jury, and judgment entered on the verdict in favor of appellee for that sum and costs.
But four errors are discussed in the briefs. The first alleged error refers to the testimony of witness Hale, called as an expert by plaintiff. The witness testified that he resided at Bocky Ford, was a farmer, had been growing and handling melons, buying and selling them, for ten or twelve years, and was engaged in the melon business in Otero county in 1900.
■ “Q. If this corn crop had been let alone and had not been molested by the hogs, how much would it have yielded per acre in your opinion?”
Defendant objected as incompetent, no* sufficient foundation having been made. The objection was overruled by the court, to which ruling defendant excepted.
It does not appear that the witness answered the question. Consequently, there is nothing in the assignment of error. The same witness testified that he was a farmer, was raised on a farm, had raised various crops but had not raised cantaloupes, and never “took any attention to how they were raised.” He testified further that there was a pretty fair stand of cantaloupes on the farm that year. Upon cross-examination the question was asked:
“Q. How can you tell what a good stand of cantaloupes are?”
“A. I said I supposed there was a good stand. ■There was about every hill there, that is the only way I had to tell and that is all I know about it.”
It was moved to strike the testimony out as to there being a good stand of cantaloupes, for the
The next assignment of'error is as to the testimony of witness Finch concerning the yield of alfalfa in the locality of appellee’s farm. He testified that he baled hay at Mr. York’s place about October 20th, 1900, from the second and third cuttings; that it was worth one dollar per ton to cut and stack the hay; that a fair average of alfalfa hay was a' yield of two and one-half tons; that the crop at Mr. York’s place would have yielded two and one-half tons if let alone hy the hogs. He did not bale hay at that place the year before nor the year after. Upon cross-examination, it was shown that he based his opinion as to the acreage yield of alfalfa hay in that locality partly from the knowledge he obtained in baling the hay and partly from information received from Mr. York and his neighbors.
The defendant moved to strike out the testimony in regard to the average yield of hay in that locality as the witness had not shown that he knew anything about it. The motion was overruled. In this it is contended the court erred. The motion was too broad. That portion of the testimony based upon the knowledge he acquired in baling the hay was competent. The motion should have been restricted to the hearsay testimony, but, exclusive of this testi
It not appearing that there is any prejudicial error in the record, the judgment will be affirmed.
.Affirmed.
Chief Justice Gabbert and Mr. Justice Goddard concur.