Van Damme v. McGilvray Stone Co.

This is an appeal from an order of the superior court of the state of California in and for the city and county of San Francisco denying the defendant’s motion for a new trial.

The action is for the recovery of damages resulting from the killing of three horses of the respondent, alleged to have been caused by the reckless, negligent, and careless operation of a derrick, whereby a high voltage trolley wire was struck and broken by the derrick, and in falling came in contact' with respondent’s horses, instantly killing them.

At the conclusion of the trial, which was had with a jury, and in submitting the case the court concluded its charge as follows: “If you return a general verdict in favor of plaintiff you will also return your verdict on the special issue which I now submit to you as follows: At the time when the trolley wire broTie on the 19th of August 1907, were defendant’s employees operating the derrick negligently, recklessly, and carelessly?”

Upon returning into court with the verdict the following proceedings were had, quoting from the bill of exceptions as prepared by the appellant and settled by the trial judge:

In addition to the above, affidavits were filed by…