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

• Decision Date: 11 October 1889
• Citation: 78 Iowa 410,43 N.W. 267
• Court: Iowa Supreme Court
• Parties: CONNYERS v. SIOUX CITY & P. R. CO.

78 Iowa 410

43 N.W. 267

CONNYERS

v.SIOUX CITY & P. R. CO.

Supreme Court of Iowa.

Oct. 11, 1889.

Appeal from district court, Monona county; C. H. LEWIS, Judge.

Action for the recovery of damages sustained by the plaintiff by reason of the killing of certain of his cattle upon the track of the defendant's railroad by locomotive engines and trains run by the defendant. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant appeals.John B. Hawley and John E. Sellick, for appellant.

McMillan & Kimball, for appellee.

ROTHROCK, J.

1. It is claimed in the petition that in the month of June, 1885, two steers, the property of plaintiff, were killed by one of defendant's trains; that in June, 1886, two cows were killed in the same manner; that on the 6th day of July, 1887, one “blooded bull” and one cow were killed by another train; that on the 13th day of July, 1887, another cow was killed by another train; and that on the 14th day of the same month one steer and one cow were killed in the same manner. The ground upon which recovery was sought for the value of the cattle was that they were killed at a point on the railroad where the defendant had the right to fence its track, and had failed to do so, and that the cattle were killed without any willful act of the plaintiff or his agents. All through the petition the fact is kept prominent that the cattle were killed at a point where the defendant had the right to fence its road. In addition to this averment it is several times alleged in the petition that the killing occurred while the defendant was operating and moving its engines carelessly and negligently. But in the same connection the averments are made that the killing was done at points where the defendant had the right to fence its track. To this petition there was an answer, which is, in substance, a general denial. It will be observed that the petition in effect negated the idea that the cattle were killed at a public crossing. But the averments of negligence and carelessnessin operating the train also presented the question applicable to the killing of stock at points where there was no right to fence,--as, at a public crossing. The defendant was content to meet this kind of a pleading by a general denial. And the court very properly charged the jury, in substance, that if the right to fence existed, and there was no fence, the defendant was liable; and if the killing took place upon a public crossing it was incumbent on the plaintiff to show that the damages were caused by the negligent and careless operation of the trains. It is not for this court to determine upon this appeal whether this petition was vulnerable to a motion to divide, or for more specific statement, or that it was subject to any other objection. The parties, having elected to go to trial upon it, cannot now object to it because it contains inconsistent averments. This is a sufficient answer to much of the argument of the appellant's counsel. See Scott v. Railway Co., 68 Iowa, 360, 24 N. W. Rep. 584, and 27 N. W. Rep. 276.

2. The plaintiff, in introducing his evidence in chief, endeavored to show that notwithstanding the cattle were killed at a place where there was a crossing over the track, with cattle-guards on each side of the crossings, and sign-boards for a crossing, and fences up to the cattle-guards, yet that there was in fact no public highway at that point. No effort was made to prove that there was any negligence in the manner of operating the trains, unless the plaintiff expected that the jury would infer from the fact of the repeated slaughter of his cattle at that point that the trainmen should have put the speed of the train at...