Kyser v. K. C., St. J. & C. B. R. Co.

• Decision Date: 09 June 1881
• Citation: 9 N.W. 133,56 Iowa 207
• Court: Iowa Supreme Court
• Parties: KYSER v. K. C., ST. J. & C. B. R. CO.

56 Iowa 207

9 N.W. 133

KYSER

v.K. C., ST. J. & C. B. R. CO.

Supreme Court of Iowa.

Filed June 9, 1881.

Appeal from Pottawattamie circuit court.

Action commenced before a justice of the peace to recover double the value of a cow killed by a train of cars upon defendant's railroad. The cause was appealed to the circuit court, where a verdict and judgment were had for plaintiff for double the value of the cow. Defendant appeals. The facts of the case involved in the points ruled appear in the opinion.Sapp, Lyman & Ament, for appellant.

Wm. McLennan, for appellee.

BECK, J.

1. The evidence in the court below establishes that the plaintiff served upon the agent of defendant notice and an affidavit showing the destruction of the cow. An affidavit and notice introduced in evidence were shown to be similar to the paper served on the agent. The plaintiff, it seems, signed and was sworn to two papers embodying the notice and affidavit required by the statute in such cases. One of them was served upon the agent, the other introduced in evidence. The proof shows that these several papers were similar. It does not show that they were identical in form and substance, or that one is a copy of the other. Under Code, § 1249, the original affidavit must be served upon the railroad company or its agent, and a copy introduced in evidence, unless other lawful evidence is admissible in lieu of a copy under the circumstances of the case. McNaught v. C. & N. W. R. Co. 30 Iowa, 336. A paper similar to the original affidavit is not sufficient evidence under this rule.

2. The evidence shows that the cow was killed upon the grounds of a station where there was a switch and side track. The court, in instructions to the jury, held that the plaintiff is entitled to recover upon proof made by him that his property was destroyed by a train of cars upon defendant's road, and that defendant, to escape liability, must show that the part of the station ground where the cow was killed was necessary and convenient for the transaction of the business of the railroad. The decision of the court below is in conflict with the rule recognized by this court. It is held in Comstock v. Des Moines Valley R. Co. 32 Iowa, 376, that in an action to recover for stock killed by a train upon a railroad, the burden rests upon the plaintiff to show that the injury was done at a point where the company is required to fence its track. A railroad company is not required to fence its track...