This action was brought to recover the value of certain pigs alleged to have been killed by defendant’s railway train at a place where it is claimed i't was obliged to fence its right of way. 'Defendant answered by general denial. Verdict was rendered for plaintiff, and judgment entered for double damages, under the provisions of chapter 218, Laws of 1907. Motion for new trial' was made and denied. Defendant appeals. '
The only assignment of error presented is that the court erred ip, refusing to grant a new trial. The motion for new trial was claimed on the ground of surprise in this: That prior to the bringing of this action this court had held in the cases of Lidel v. *490S. D. Cent. Ry., 25 S. D. 462, 127 N. W. 653, and in Jensen v. S. D. Cent. Ry., 25 S. D. 506, 127 N. W. 650, 35 L. R. A. (N. S.) 1015, Ann. Cas. 1912C, 700, respectively, that said chapter 218 was constitutional, and that after the case at bar had been tried, but before the time for motion for new trial had expired, this court again held, in the case of Bekker v. Railway Co., 28 S. D. 84, 132 N. W. 797, that said chapter 218, in so far as it attempted to change the rules of evidence in relation to the killing of live stock, was unconstitutional. The issues in the case at bar were framed and the case tried on the theory of the Ridel and Jensen Cases, and on the rule of evidence appearing in said chapter 218. The rule of evidence mentioned in the Bekker Case was not raised in the court below; neither was the constitutionality of said chapter 218 raised in the court below, at the time of the trial, with reference to such rules of evidence. After the verdict and judgment in the court 'below, the decision in the Bekker Case was published,’ and appellant then moved the court for new trial, setting up by affidavit the circumstances of the rendering of said decisions by this court as a ground therefor.
We are of the opinion that the motion for new trial was properly denied. It is true there are some authorities which seem to hold to the rule that, where a court of last resort has announced a certain rule of evidence and afterwards reverses the same, one who has relied upon the first rule is entitled to a new trial on the ground of surprise. But we are of the view that these authorities are not applicable in this case. In the Ridel and Jensen Cases the unconstitutionality of chapter 218 was raised, but upon entirely different grounds than those raised in the Bekker. Case. ITad the same grounds been raised in the former cases that were raised in the'latter, the decision would undoubtedly have been the same. No rule was reversed in the Bekker Case that was established or adhered to in the Ridel and Jensen Cases. The decision in the Bekker Case was based on the fact that the title of the act was not sufficient to carry legislation as to the rules of evidence. No such question was raised in either of the other cases.
The judgment and order appealed from are affirmed.