
    Freeman v. Rich.
    An application for a new trial, is addressed to the sound discretion of the-court which tried the cause, under all the circumstances of the case; and; the appellate court must he fully satisfied that such discretion has been improperly exercised, before it will disturb a ruling refusing such trial, based-, upon the insufficiency of testimony.
    
      Appeal from the Buchanan District Court.
    
    This action was brought to recover for injury done to the-colt of plaintiff, while tbe same was being yarded with other stock of plaintiff at defendant’s, at which place tbe plaintiff, bis family and stock, were staying over night, on their way moving to tbe country. Defendant is sought to be charged as an innkeeper generally, and also on a special undertaking. A verdict was had for plaintiff for fifty dollars. Defendant moved for a new trial, which motion was overruled. The-only error assigned, is the overruling of this motion. No. question is made as to the instructions, but only as to the sufficiency of the evidence to sustain the verdict. The evidence is sufficiently stated in the opinion of the court.
    Smith, McKinlay & Poor, for the appellants.
    
      James Burt, for the appellee.
   Isbell, J.

An application for a new trial, is addressed' to the sound discretion of the court, under all the circumstances, of the case.. This court must be fully satisfied that sucb discretion bas been improperly exercised, before it will disturb a ruling refusing sucb trial, based on tbe insufficiency of testimony.

"Without recounting all tbe testimony in this case, wbicb is in some respects, conflicting, and of tbe credibility of wbicb tbe jury were tbe proper judges, we will state only so much, wbicb, if true,- we regard as sufficient to sustain tbe finding.

It appears that tbe son of plaintiff, was assisting in driving plaintiff’s stock, wbicb was in advance-of plaintiff, who-was coming on with bis team. When about sundown, they arrived at defendant’s, witness asked defendant, if be kept travelers ? To wbicb defendant replied, that be did. Witness then asked, if be bad a yard to put tbe cattle in ? Defendant replied, be bad no other yard than tbe one bis own cattle were in. Witness then said, that be -did not like ;to turn in amongst defendant’s .stock. Defendant answered,, that it would be all safe; and then opened tbe gate of bis yard, and sent bis dog around the cattle, and turned all into tbe yard with defendant’s cattle. In tbe morning, one of plaintiff’s colts was found badly injured, which bad been booked by a cow belonging to defendant. There was blood on tbe cow’s born, and she was cross and ugly, having calved during tbe night. Other people staid at tbe defendant’s that night, and be turned one load away. Plaintiff paid a bill for staying, of three dollars and fifty cents. Others who staid that night, paid fifty cents each. Plaintiff furnished bis own beds, except for bis daughter, who slept in defendant’s bed; assisted in feeding stock; furnished bis own victuals, except potatoes, and bad them cooked by themselves» One witness, wbo lives at tbe distance -of half a mile, states ■be bas known travelers stop at defendant’s; never knew bf bis turning any away; defendant bad been there-about eight months, when accident occurred; be keeps sheep; -is a, farmer; witness thinks be keeps a tavern; bas no sign out» Another, produced by defendant, wbo bas made bis borne a year with him, says, that be keeps people often; many camp' down on tbe floor, &c. Tbe colt was proved to be worth, fifty dollars, and entirely ruined»

It was attempted, by cross-examination, and by the production of witnesses, to prove that defendant was not an innkeeper; that he did not receive plaintiff as such; and that he did not state to plaintiff’s son, that the stock of plaintiff would be safe in the yard with defendant’s.

In view of all the testimony, in the light in which we must view it, on this application, we are not inclined to disturb the verdict. There are here several items of testimony, aside from the fact that defendant expressly informed the son of plaintiff, who yarded the stock with defendant, that he kept travelers, tending to show that defendant was an "innkeeper. This is peculiarly one of those questions which a jury, coming from the vicinage of the defendant, was best able to determine. The instructions were pointed as to wbat it took to constitute the defendant an innkeeper, and so decidedly favorable to the defendant, that the jury must have fairly considered the question. Again: we attach some weight to the fact of defendant having informed the agent of plaintiff, before stopping with him, that he, defendant, kept travelers. Might not the jiiry reasonably infer from this, that defendant held himself out to plaintiff as an innkeeper ? If so, we would not lend countenance to the doctrine, that a man may hold himself out to a stranger passing, as an innkeeper, and thereby induce-him to stop, and yet not be liable to such stranger in that capacity. Again: we are not fully satisfied that there was not a special undertaking, that the stock of plaintiff should be safe from injury from that of defendant. But it is insisted, that the property was not of that character, so within the inn, as to render the defendant liable as an innkeeper, for its safety. Of this too we are not satisfied. See Hill v. Owen, 5 Blackf. 323; Towson v. The Havre de Grace Bank, 6 Harris & Johns. 53; Peet v. McGraw, 25 Wend. 633; Lyons v. Smith, Morris, 184.

Judgment affirmed.  