Johnson v. Chicago, Milwaukee & St. Paul Ry. Co.

MR. JUSTICE SANNER

delivered the opinion of the court.

On May 10, 1913, a milch cow belonging to the respondent was struck and killed by one of the appellant’s trains, and the respondent brought this action to recover $85, the value of said cow. The complaint alleges negligence in the killing, and while the answer amounts to a general denial, negligence was the only issue developed at the trial. As evidence of such negligence, [1] respondent relied upon the presumption established by section 4309, Revised Codes. This the appellant sought to rebut by the evidence of the engineer and fireman which, if accepted in all respects, tended to show that there was no negligence, and at the close of all the evidence moved a directed verdict, the denial of which constitutes the only error assigned.

Appellant’s contention is that, having presented testimony tending to exonerate it from negligence, the presumption was overcome in the absence of a further showing by the respondent, and a verdict should have been directed accordingly. This is untenable. "When a presumption of this character is confronted with testimony in the opposite direction, the result is a conflict of evidence which the jury must resolve. (Rev. Codes, sec. 8028, subd. 2; Freeman v. Chicago, M. & St. P. Ry. Co., 52 Mont. 1, 154 Pac. 912; Emerson v. Butte Electric Ry. Co., 46 Mont. 454, 129 Pac. 319.)

The judgment and order appealed from are affirmed.

Affirmed.

Mr. Cheep Justice Brantly and Mr. Justice Holloway concur.