Brentner v. Chicago, Milwaukee & St. Paul R'Y Co.
| Decision Date | 07 April 1886 |
| Citation | 23 N.W. 245,68 Iowa 530 |
| Parties | BRENTNER v. THE CHICAGO, MILWAUKEE & ST. PAUL R'Y CO |
| Court | Iowa Supreme Court |
Appeal from Cerro Gordo Circuit Court.
PLAINTIFF seeks to recover double the value of certain cattle which, he alleges, were killed on defendant's railroad track by an engine and train of cars. It is alleged that the injury occurred at a point where defendant had a right to fence its track, but that it neglected to maintain a sufficient fence at said point to keep cattle from entering upon its track and that the cattle in question, in consequence of such neglect, entered thereon and were killed. There was a verdict and judgment for plaintiff, and defendant appeals.
REVERSED.
Geo. E Clark, for appellant.
Miller & Cliggitt, for appellee.
I.
The defendant objected to the panel of the trial jurors upon the ground that the persons constituting the panel had not been drawn as required by law. The objection was overruled. In this respect there is no difference between this case and State v. Harris, 64 Iowa 287, 20 N.W. 439. Therefore the court did not err in overruling the objection.
II. Plaintiff offered in evidence a written notice and affidavit of the killing of the stock. He also introduced the deposition of a witness who testified that he read a portion of said notice and affidavit to a station agent of defendant, and delivered the same to him. Defendant objected to the admission of the notice and affidavit in evidence on the ground that it was not shown that they had ever been served on defendant in the manner provided by the statute. This objection was overruled, and this ruling is assigned as error. The statute (Code, § 1289) provides that if the "corporation neglects to pay the value or damage done any such stock within thirty days after notice in writing, accompanied by an affidavit in writing, of such injury or destruction has been served on any officer, etc., such owner shall be entitled to recover double the value of the stock killed or damages caused thereto." Defendant's position is that the service of the notice and affidavit should be made in the manner provided for the service of original notices,--that is, by reading the same and delivering a copy thereof to the person on whom the service is sought to be made,--and that, as but a portion of the notice and affidavit was read to the agent by the person who attempted to serve it, this does not constitute legal service of the papers.
The statute does not prescribe the manner in which the service shall be made. The provision is simply that the papers shall be served on an officer or agent of the corporation, and we think they may be served by simply delivering them to the person on whom the service is made. There is no express requirement that they shall be read to him, and there is nothing in the nature of the case which requires that they should be read. The court, therefore, properly admitted the affidavit and notice in evidence on proof that they had been delivered to the agent. See Mendell v. Chicago & N.W. R'y Co., 20 Iowa 9. Defendant asked the court to instruct the jury that unless the notice and affidavit were served by reading them to the agent to whom they were delivered, plaintiff could not recover more than the actual value of the cattle killed. Under the view we have taken of the question as to what constitutes service under the statute, this instruction was properly refused.
III. The court gave the following instruction: "Defendant had the right to fence its railway track and right of way at all points except highway crossings and depot grounds; and if it failed to build a good and sufficient fence to keep stock and cattle off from its right of way under all ordinary circumstances, or failed to exercise ordinary care or diligence to maintain and keep the fence in repair after it was built, such failure would constitute negligence on its part, and would make defendant liable for all injury to cattle or stock occasioned by such failure or negligence." The giving of this instruction is assigned as error. The objection urged against the instruction is that it lays down a rule of liability materially different from that established by the statute, in this: that the statute imposes on the corporation the duty to fence its right of way against live-stock running at large, and makes it liable for any injury to such stock caused by its failure to perform that duty; while the rule announced by the instruction is that it is its duty to build and to maintain fences sufficient to keep cattle off its right of way under all ordinary circumstances, and that it is liable for all injury to stock or cattle occasioned by...
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