
    Robert Deakin vs. Chicago, Milwaukee & St. Paul Railway Company.
    November 9, 1880.
    Error in Refusal to Dismiss cured by Subsequent Evidence. — BerJcey v. Judd, 22 Minn. 287, followed, as to the point that an error committed in the denial of a motion to dismiss an action on the ground of insufficiency of testimony is cured by the after introduction of competent evidence sufficient to supply the deficiency.
    Evidence held sufficient to support a verdict.
    Appeal by defendant from an order of the district court for Goodhue county, Crosby, J., presiding, refusing a new trial. The action was brought to recover damages for the killing of two mares of plaintiff by a train on defendant’s railway, and the only question submitted by the court to the jury was whether the defendant’s servants in charge of the train, after they discovered the peril of the mares, used reasonable care to avoid injuring them.
    
      Seagrave Smith, for appellant.
    
      J. C. McClure, for respondent.
   Berry, J.

Wo need not inquire whether, at the close of his testimony in chief, the plaintiff had or had not introduced evidence sufficient to establish his alleged cause of action. If he had not, any error of the court in refusing to grant defendant’s motion to dismiss was cured, if, in the after progress of the trial, competent evidence was received sufficient to supply the deficiency. Berkey v. Judd, 22 Minn. 287.

The simple question remains whether, the evidence in the case was sufficient to support the verdict. Upon a careful study of the testimony, we have come to the conclusion that it has a sufficient tendency to establish plaintiff’s alleged cause of action in all material points, and that therefore the-verdict should not be disturbed.

Order denying new trial affirmed.  