Fisk v. Chi., M. & St. P. Ry. Co.

• Decision Date: 14 May 1888
• Citation: 74 Iowa 424,38 N.W. 132
• Court: Iowa Supreme Court
• Parties: FISK v. CHICAGO, M. & ST. P. RY. CO.

74 Iowa 424

38 N.W. 132

FISK

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

May 14, 1888.

Appeal from district court, Linn county; J. H. PRESTON, Judge.

Action by W. S. Fisk, trustee of A. Bolton, against the Chicago, Milwaukee & St. Paul Railway Company, for damages. The petition states that the defendant negligently left a freight car standing in and upon a public highway running through the town of Peralta, on defendant's railway, and that A. Bolton was passing along such highway, driving a team of two horses attached to a wagon; that said car was so placed upon said highway that a large portion thereof was occupied by the same, and the free passage of the highway was obstructed by said car; that said Bolton, in attempting to pass the car with said team, was “crowded for room, and his team, taking fright at said car, became and was unmanageable, and ran away,” whereby Bolton was greatly injured; “that plaintiff has been duly appointed and is now acting as trustee of the said Bolton, and others beneficially interested in the prosecution of this claim, and, as such, is fully authorized to bring and maintain the action.” Trial by jury. Verdict and judgment for plaintiff. The defendant appeals.Mills & Keeler, for appellant.

Henry Rickel, for appellee.

SEEVERS, C. J., ( after stating the facts as above.)

1. The grounds on which the plaintiff seeks to recover, briefly stated, are-- First, that the highway was obstructed by the car; and, second, that the team took fright at said car. In the seventh and eighth paragraphs of the charge, the court in substance instructed the jury: “And if you further find from all the evidence that said car, placed and left where you may find from the evidence it was placed and left, was an object apt to frighten horses of ordinary gentleness, * * * then you would be warranted in finding that defendant was guilty of negligence.” We think this instruction was erroneous, for the reason it was not alleged that the car, placed as it was, was apt to frighten horses of ordinary gentleness. The only material questions were: Was the highway obstructed by the car? and did the horses become frightened at the car? and not whether horses of ordinary gentleness were apt to become so. There was no such issue, and there was no evidence introduced tending to establish such fact. The recovery must be obtained on the grounds stated in the petition, and not on another and different ground. Manuel v. Railroad Co., 56 Iowa, 656, 10 N. W. Rep. 257. See, also, Gilbert v. Railway Co., 51 Mich. 488, 16 N. W. Rep. 868;O'Donnell v. Railroad Co., 69 Iowa, 103, 28 N. W. Rep. 464.

2. There was evidence tending to show that the horses driven by Bolton became frightened at or when crossing a bridge, and that he whipped them, which caused them to run, and that they were unmanageable, and beyond his control, before and at the time he reached the crossing. The court instructed the jury as follows: “If you find from the evidence that, before reaching the crossing, said Bolton's team became unmanageable, and ran away, either from fright or whipping or both, and, while running over said crossing, they shied at the freight car standing at or on said crossing, and caused the accident, then the injury was not caused by any negligence of defendant, unless the jury find that such accident would have occurred if said team had not become so frightened...