Adams v. Sample

No. 10,028. Adams v. Sample. Decided April 4, 1921. Action for damages resulting from the killing of a cow by an automobile. Judgment for plaintiff. Affirmed. On Application for Supersedeas. 1. Appeal and Ebbor — Bill of Exceptions — Instructions. Wliere none of the testimony is preserved by hill of exceptions or otherwise, the action of the trial court in refusing to give instructions will' he presumed to he proper. 2. Instructions Given — Presumption. Where an instruction given is not erroneous, so far as any proposition of law is therein stated, and none of the evidence is before the appellate court, it will he presumed the instruction was properly given. Error to the County Court of Garfield County, Hon. R. J. Smith, Judge. Mr. John L. Noonan, for plaintiff in error. Mr. C. W. Darrow, for defendant in error. Department One. [MAJORITY — Mr. Justice Allen] Mr. Justice Allen delivered the opinion of the court. This is an action for damages sustained as the result of the killing of a cow. The injury complained of is alleged to be due to the negligent operation of an automobile upon a public highway. The case was begun in a justice court, and there are no pleadings. After two trials in the county court, a judgment was entered for plaintiff. The defendant brings the case here, and applies for a supersedeas. Error is assigned to the refusal of the trial court to give certain instructions. None of the testimony has been preserved by a bill of exceptions or otherwise. In the absence of the testimony we must assume that the action of the court in refusing the instructions was proper. Rogers v. Rogers, 57 Colo. 132, 136, 140 Pac. 193. Complaint is made of a certain instruction given, but we do not find the same erroneous in so far as any proposition of law is therein stated. It will be presumed, therefore, that it was properly given. 4 C. J. 769. Supersedeas is denied and judgment affirmed. Mr. Justice Teller, sitting for Mr. Chief Justice Scott, and Mr. Justice Wititford concur.