(Dissenting). — The appellees seek to recover the value of twelve head of livestock belonging to them as partners, alleged to have been killed by appellant’s locomotives, cars and trains running over, upon and against such animals. The dates upon which each animal is alleged to have been killed, a description of such animal, and the point on appellant’s railroad where each animal is alleged to have been killed, are all made specific, and in each instance the value of the animal is alleged. The aggregate value is set forth as $485, and judgment in that sum is demanded. The dates mentioned, upon which the animals are alleged to have been killed — the earliest is on June 15, 1913, and the *102latest October 7, 1913, and the others on intermediate dates— specifically appear. The complaint sets forth the negligence relied upon as a cause of action by means of two counts, the first setting forth, as the negligence of defendant, its failure to fence its railroad, and that as a result the animals strayed upon the track and were killed; the second setting forth that the animals were killed by reason of the careless and negligent operation of defendant’s locomotives, ears and trains. The defendant denied negligence on its part, squarely raising an issue upon both counts of the complaint.
Questions upon the pleadings and on the introduction of evidence were raised, but they are not now earnestly pressed upon our consideration, and I think, upon consideration, they do not merit a reversal of the judgment, for the reasons I have stated in my opinion in A. T. & S. F. Ry. Co. v. Carrow & George, decided April 6, 1916. The cause was tried to the court, a jury having been expressly waived. Judgment followed for plaintiffs in the sum of $425. From this judgment defendant appeals.
The appellant earnestly and ably presses upon our attention the question of the sufficiency and competency of the evidence to sustain the judgment. A review of the record discloses that plaintiffs introduced one witness and rested their case on the testimony given by such witness. The defendant introduced no testimony, but relied upon plaintiffs’ failure of proof. The only question we have for consideration is whether any substantial evidence exists in the record supporting the allegations of the complaint.
J. E. Carrow, one of the plaintiffs, testified as a witness in behalf of plaintiffs. This witness testified that he personally saw ten of the carcasses of the animals described in the complaint, each lying in close proximity to the defendant’s railroad tracks, and in one instance saw a train strike and kill one of the animals. He testified that at the points where he saw at least two of the dead animals, the track was unfeneed. After seeing each animal dead, witness went each time and examined the section record of livestock killed, and conversed with the section foreman. In a number of instances, perhaps at all of such times, the section foreman informed witness of the number of the train which killed each animal, and the witness also testified that the section *103record set forth the number of the train, the description of the animal killed, and other like facts. The witness testified to the value of each animal and to the fact that plaintiffs were the owners of the ten animals.
When such witness closed his testimony, direct and cross, and had been excused, the plaintiffs moved to amend their complaint by striking the items numbered 4 and 5, which motion was granted, and plaintiffs dismissed their claim for $60, for a cow alleged to have been killed on June 29, 1913, of the value of $30, and of another cow alleged to have been killed on July 2, 1913, of the value of $30.
In my opinion in Atchison, Topeka & Santa Fe Ry. Co. v. Carrow & George, I have endeavored to show that the fact of the killing of livestock by a railroad company may be established by circumstantial evidence, and that the fact the dead carcasses of animals are found along a railroad track, their killing having been otherwise unaccounted for, justifies the inference that such animals were killed by passing trains, cars or locomotives striking them — that such circumstance establishes the owner’s prima facie right to recover, and puts the corporation on its defense, on authority of paragraph 3780 of the Arizona Civil Code of 1913.
The evidence in this case is stronger for the appellees than appeared in the Carrow & George case, in the particular that some of the animals are shown by the evidence to have been killed at portions of the track left unfenced. As a matter of law, the railway company was negligent in such instances, as explained by me in the Carrow & George case, it making no defense.
The court erred in admitting the hearsay statements of the section foreman, and such error would be presumed to have prejudiced the appellant’s rights if a jury had been made the triers of the facts; but the facts having been tried by the court, in support of the judgment, we must presume that the court disregarded such illegal evidence. The competent evidence in the record is alone sufficient to sustain the finding of facts which sustain the judgment rendered.
The majority of the court holds that while the use of a memorandum by a witness, made in part from the section foreman’s record, to refresh the witness’ memory was error, “not perhaps of sufficient moment to require a reversal of *104the judgment, except for the fact that the parties have stipulated that the decision of this cause should abide the judgment rendered in the case of Atchison, Topeka & Santa Fé Ry. Co. v. E. M. Carrow and Ira M. George, ante, p. 83, 156 Pac. 961, being cause No. 1449, just decided.” The said stipulation is as follows, omitting the title:
“It is hereby stipulated by and between the parties to the above-entitled action that whatever judgment is rendered by the above-named court in the ease of The Atchison, Topeka <Sr Santa Fé Railway Company, a Corporation, Appellant, v. E. M. Carrow and Ira M. George, Partners, Doing Business Under the Firm Name and Style of Carrow & George, and Also Named as Wallapai Mountain Cattle Company, Appellees, now pending in the above court, numbered 1449, may be entered in the above-entitled cause by the above-named court, upon motion of either party. It is further stipulated that neither of the parties hereto need file any brief in the above-named court in support of this appeal, or take any further steps to prosecute, perfect or resist said appeal, which may, in order that time, trouble and expense to both parties may be saved, abide the result in said cause No. 1449. [Signed by the attorneys for the respective parties.] ”
No motion for judgment has been made in this case by either party. No judgment was rendered in case No. 1449, except an order reversing the judgment in that case.
The appellant submitted this ease at the same time cause No. 1449 was submitted. The writer hereof, in cause No. 1449, discussed and carefully considered all the questions presented by the record in that cause, and that are presented by the record in this cause, and after stating his reasons, concluded such stated reasons did not justify a reversal of the judgment in that cause. The further fact is presented by the record in cause No. 1449, not presented by this record, viz.: That the record in cause No. 1449 contained no competent evidence tending to show or showing that 4 of the-claimed animals were killed by the defendant railroad company; that the plaintiffs relied upon hearsay evidence to^ support the facts constituting negligence, and the court erred in admitting such evidence in the case and giving such evidence any weight; and therefore a material portion of that judgment had no substantial evidence in the record in its *105support, and, as a necessary consequence, the judgment was wrong.
The particular error controlling the decision in cause No. 1449, reversing the judgment, is absent from the record in this cause. In cause No. 1449 the majority of the court, in their opinion, state no reasons whatever for the court’s decision in that case. The entire opinion is as follows:
“We concur in the order reversing the cause and remanding it for a new trial.”
Why the majority of the court considered the judgment error does not appear. The reasons given in the majority opinion in this case in support of the presumption that this judgment is without error may have applied to the similar facts presented in cause No. 1449 with equal force, with the single exception noticed. As I considered, in that cause, all the questions raised by the facts in this record, and concluded that such facts were not sufficient to justify a reversal of the judgment in that case, and as the majority of the court has in this case considered such questions under the same facts but presented in this record, and also seems to have concluded no error appeared therefrom, I am of opinion that under the stipulation in question the court to dispose of all the questions in this case, in accordance with the disposition made of them in the former case, and cause this case to abide the court’s judgment in the former case, is required to order this judgment affirmed. Otherwise, the parties to an appeal may stipulate what law this court must follow in rendering its decisions. See Allen v. State, 14 Ariz. 458, 465, 44 L. R. A. (N. S.) 468, 130 Pac. 1114.
Either an appeal has presented a cause for consideration by this court, which requires a decision of the questions presented by the record, or the stipulation is such as to hold the appeal in abeyance pending the decision in another case, and upon the final disposition of that other case the parties in their private capacity agreed to be bound. The court is not a party to such stipulation, nor will such stipulation, in my opinion, control the decision of a cause as recognized in the Allen case, supra. It may have, and probably does have, the effect as between the parties, of estopping them from enforcing the judgment affirmed until final determination of *106the former case, but that is another question not here presented.
If no reversible error is shown on the record presented to this court, this court has no authority to reverse the judgment, and a stipulation filed, having for its purpose the control of the decisions of this court, cannot confer the authority,, nor direct the decision this court should make. A stipulation cannot confer jurisdiction on the court, nor control the manner of exercising the jurisdiction acquired in a regular manner. Hence I dissent from the decision reversing the judgment for the reasons stated by the majority in their opinion.
I am of the opinion that the record contains no reversible error, and that the judgment appealed from should lawfully be affirmed. Otherwise the very purpose of the stipulation, viz., “that time, trouble and expense to both parties may be saved,” is nullified by this court, and the time, trouble and expense of another trial is cast upon the parties.
Upon the question of power of legislature to make the killing of stoek by railway train prima facie evidence of negligence, see note in 32 L. R. A. (N. S.) 227.