NEGLIGENCE — Question for Jury — Appeal and Error — Change of Theory. Same as that in St. Louis San Francisco R. Co. v. Key (ante), decided at this term of court.
(Syllabus by the Court.)
WILLIAMS, J.
This action was first commenced in a justice of the peace court in LeFlore county on July 3, 1908. The defendant in error as plaintiff sued to recover damages from the plaintiff in error as defendant for its killing of his bay mare. From a judgment in favor of plaintiff, defendant prosecuted an appeal to the county court. The evidence on the part of the plaintiff tended to prove that the mare had been run down and killed by one of defendant's trains. This evidence consisted of tracks on defendant's road-bed for about 150 yards up to the point where the mare was found dead. From said point back to where the tracks began the track was straight. The evidence on the part of the defendant tended to prove the exercise of due care on its part. The court submitted the question of fact to the jury under proper instructions and a verdict was rendered in favor of the plaintiff. There is no contention that it is excessive. This case in all respects is covered by St. Louis San Francisco R. Co. v. Key ( ante), decided at this term of court, 115 P. 875, and authorities therein cited. The judgment of the lower court is affirmed.
All the Justices concur.