Brown v. Sioux City & P. R. Co.

• Decision Date: 05 April 1895
• Citation: 94 Iowa 309,62 N.W. 737
• Court: Iowa Supreme Court
• Parties: BROWN v. SIOUX CITY & P. R. CO.

94 Iowa 309

62 N.W. 737

BROWN

v.SIOUX CITY & P. R. CO.

Supreme Court of Iowa.

April 5, 1895.

Appeal from district court, Monona county; Frank R. Gaynor, Judge.

Action to recover damages for the alleged negligent killing of five head of cattle by one of defendant's freight trains, at a public highway crossing, in the nighttime of October 6, 1890. The case was tried to a jury, and a verdict returned in favor of the plaintiff. Defendant's motion for a new trial was overruled, and judgment entered on the verdict Defendant appeals. Affirmed.John B. Hawley, B. T. White, and Chas. E. Underhill, for appellant.

P. Hubbard, C. S Waitley, and J. A. Traver, for appellee.

GIVEN, C. J.

1. The negligence charged is that “the crew operating said train negligently failed to apply the brakes and stop the train, and also failed to blow the whistle and ring the bell, or in any manner try to clear the track, but negligently ran their train into said cattle.” The cattle killed were part of a large herd owned by the plaintiff, and kept in an inclosure some distance from the railroad track. On the night of October 6th they broke from the inclosure, and went upon the track at a public highway crossing, where they were run into by one of defendant's freight trains at about 10 minutes before 6 o'clock in the morning, and five of the number killed. There was a dispute as to whether the morning was dark and foggy or not. The fact was important in determining whether the crew were negligent as charged. The conductor was asked whether it was possible for the train men and engineers to see the whistling posts at the crossings, and whether he could see them at the time of the accident. Plaintiff objected, “as it asks for a conclusion,” and the objection was sustained. We think the question called for a fact, not a conclusion. It called for what the witness knew, and not for his “deduction drawn from premises”; and the objection should have been overruled. The ruling was, however, without prejudice to appellant, as the same witness testified without objection that at the time “it was very dark, and very foggy also.” The engineer and one of the brakemen also testified, without objection, that it was dark and foggy, and that they could not see the whistling posts.

2. Defendant complains of the following part of the third paragraph of the charge: “In determining whether the railroad company was negligent, you may take into consideration the condition of the night,...