Croddy v. Chi., R. I. & P. Ry. Co.

• Decision Date: 05 October 1894
• Parties: CRODDY v. CHICAGO, R. I. & P. RY. CO.
• Court: Iowa Supreme Court

91 Iowa 598

60 N.W. 214

CRODDY

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

Oct. 5, 1894.

Appeal from district court, Wapello county; F. C. Mitchell, Judge.

On the 7th day of October, 1889, a colt belonging to plaintiff was killed by a train of cars on defendant's line of road, at or near what is known as “Bellerton's Crossing,” in Wapello county. This action was brought to recover the value of the colt, on the grounds: First, that the crossing was in a dangerous and unsafe condition; second, that the train was negligently and carelessly operated; and, third, that the accident occurred at a place where the defendant had a right to fence and failed to do so. The answer of the defendant company was a general denial. The case was tried to a jury, and a verdict and judgment were renderd for defendant, and plaintiff appeals.W. H. C. Jaques, for appellant.

McNett & Tisdale, for appellee.

DEEMER, J.

1. Appellee has filed a motion to strike appellant's amended abstract from the files. This amendment was in response to an amended abstract presented by appellee, and was filed July 21, 1893, with appellant's opening argument. The original abstract was filed June 20, 1893, appellee's amended abstract June 26, 1893, and appellee's argument was not filed until September 26th. We think, in view of these facts, that the motion should be overruled. Palo Alto Co. v. Harrison, 68 Iowa, 81, 26 N. W. 16;Frost v. Parker, 65 Iowa, 178, 21 N. W. 507;Wells v. Railroad Co., 56 Iowa, 520, 9 N. W. 364.

2. It is also insisted that the case cannot be considered upon the evidence, for the reason that the translation of the shorthand notes was not certified by the presiding judge. The record, shows, however, that the shorthand notes were duly certified by the judge who tried the case, and that he signed a bill of exceptions, which referred to and incorporated by plain and distinct reference the shorthand notes so certified by the judge and the official reporter. These notes were afterwards translated and certified by the reporter alone, the trial judge in the meantime having gone out of office. The evidence was, in our opinion, properly preserved, and became a part of the record in the case. Hammond v. Wolf, 78 Iowa, 227, 42 N. W. 778;Fleming v. Stearns, 79 Iowa, 256, 44 N. W. 376.

3. The bill of exceptions recites: “On the trial of this cause the court gave to the jury instructions numbered 1 to _____, inclusive, which were all the instructions given to the jury in the cause, and to the giving of each of which, except numbers _____, the plaintiff duly excepted at the time. Said instructions are entitled in the cause filed therein, 1892, and marked ‘Exhibit C’ to plaintiff's bill of exceptions number 1.” It will be noticed that several blanks in this paragraph are not filled out, and it is contended for this reason the instructions were not properly excepted to. The instructions given are, by proper reference, incorporated into the bill of exceptions, and, looking to them, we find they are numbered from 1 to 12, inclusive. The statement in the bill in effect is that “each and every of the instructions given were at the time duly excepted to, except numbers ______.” Treating this exceptive clause as surplusage, as we think we ought, the exception is sufficient to call in question each of the instructions.

4. At the trial, and in this court, the plaintiff has abandoned the second count or cause of action,--that is, that wherein he charged that the accident was due to the negligence and careless management of the train; and it appears that the court submitted to the jury the last count, wherein it was alleged that the colt was struck at a place where the company had a right to fence, and failed and neglected to do so. Complaint is made of the failure of the court to submit the first count, wherein it was charged that the accident was due to a faulty and defective highway crossing. That the crossing was out of repair and in an unsafe condition there can be no doubt, but the evidence shows that the colt was killed some time in the night, and there is no testimony showing where the animal was at the time it was struck, nor is there anything in the record from which it could properly be said that the animal was killed by reason of the defective condition of the crossing. All this was left to conjecture. Code, § 1288, provides, eliminating some immaterial matters: “Every corporation constructing or operating a railroad shall make proper cattle guards where the same enters or leaves any improved or fenced land, and construct at all points where such railway crosses any public highway good, sufficient and safe crossings and cattle guards, and erect at such points at sufficient elevation from such highway to admit of free passage of vehicles of every kind, a sign with large and distinct letters placed thereon to give notice of the proximity of the railway and warn persons of the necessity of looking out for the cars; and any railway company neglecting or refusing to comply with the provisions of this section shall be liable for all damages sustained by reason of such neglect and refusal. And in order for the injured party to recover it shall only be necessary for him to prove such neglect or refusal.” Appellant contends that under this section all that is necessary for him to do is to prove that his animal was killed at or near the defective crossing, and that the burden then shifts to the railway company to show that the defective crossing was not the proximate cause of the killing. We do not think the statute will bear this construction when applied to the facts of this case. The highway at the point in question runs almost directly north and south, and the railway runs from the northwest to the southeast, crosses the highway obliquely, forming what is called the “Bellerton Crossing.” The cattle guards on either side of the highway are placed at right angles to the railway. The highway fence on the south side of the railway and on the east side of the highway follows a straight line to the center of the south side of the cattle guard. And it is claimed that this fence is some three or four feet east of the east line of the highway. On the north side of the railway and the east side of the highway the highway fence comes down to the railroad right of way, and then obliques off to the...