The daily sentinel., 1906-03-13
CASE Is NoN-sUITED
BY JUDGE STEVENS

The trial of the suit of the Webster
Cattle company against the Rio
Grande Western railway company
came to an abrupt though not unex-
pected close shortly after noon today
when Judge Stevens non-suited the
case.
The ground for such action on the
part of the court was that the speci-
4 hc contract under which the cattle
Twas carried from Thompson, Utah, 10
Omaha, Nebraska, contained pro-
vision which stated that when any
damage is alleged 10 have been done
/ the parties shipping cattle must, with
/ in certain time, probably within
ten days, file written notice with
the railroad company setting forth the
! fact that they expected to ask for
damages This Judge Stevens declar-
I ed had not been complied with by the
plaintiffs and for that reason he non
suited the case
! Those who watched the progress OF
( the morning session of the court Were
not surprised at the action OF Judge
Stevens and fully expected the case
/ TO be non-suited.
Court opened at nine O'Clock and
Mr.. Fullerton, a member OF the Web
I ster City Cattle company and who
I had charge of the train load of cattle
was again called TO the stand and for
about two hours he was cross examin-
ed He was on the stand all yester-
day afternoon and a portion of yester-
/ day morning.
Motions MAIDS by Judge Caswell
attorney for the defense, to strike
out certain portions of Mr.. Fuller
ZION S testimony We're sustained by the
court notably among the testimony
stricken out was that embracing Mr..
/ Fullerton's estimation of the damage
sustained as a result OF the cattle
ltrampling on each other, etc.
During the morning Attorney
Rhone for the plaintiff, asked the
court to allow him to amend his COM
plant so as TO increase the amount
of the damages asked for from the
original amount which was in the
neighborhood OF $1,000 to S3,700.
Attorney Caswell objected and after
considerable argument Judge Stevens
sustained the objection and refused
to allow Mr. Rhone to make the
amendment to the complaint on the
grounds that the provisions of the
law regulating the amending of com
plants had not been complied with by
the plaintiff
At one time the defense raised the
ing suit under common law liabil-
ity but was attempting to introduce
evidence that related TO the specific
contract The court ruled that the
evidence must be based on the com
mon law liability.
In regard TO twelve car loads OF
cattle the court held that the plaintiff
was not able to prove amount of dam
age done to the cattle in these cars
and refused to allow the jury to con-
slider these twelve cars of cattle in
the question of damages.
Mr.. Fullerton left the stand at
eleven O'Clock and Doctor King, an
other member of the cattle company, |
was introduced. He was on the |
stand only a few minutes.
Shortly after eleven o'clock Attor-
ney Caswell made a motion that the I
case be non-suited on the grounds
that the provisions of the contract
had not been complied with on the |
part of the plaintiff and for other |
reasons which he set forth At the
conclusion of his argument the court
took a recess until one o'clock at
which time Mr.. Rhone made his ans
wer. Judge Stevens then in quite a |
lengthy opinion sustained the motion
of the defense and non suited the
case the jury was then excused and
the trial ended.
Atty. Rhone filed notice at once OF
an appeal TO the state supreme court.
There is no doubt but that the
case would have gone to the supreme
court whatever the result OF the trial |
in the district court would have been |
as each side seems determined to con
test the matter to the last ditch.