McGill v. Minneapolis & St. Louis Railroad Co.
| Decision Date | 10 April 1901 |
| Citation | 85 N.W. 620,113 Iowa 358 |
| Parties | MCGILL BROTHERS v. THE MINNEAPOLIS & ST. LOUIS RAILROAD COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Webster District Court.--HON. J. R. WHITAKER, Judge.
ACTION in two counts, the first to recover $ 40 for a cow killed at a private road crossing on plaintiffs' farm by one of the defendant's trains, on the twenty-sixth day of October 1898. The second count is to recover a balance of $ 28 on account of the killing of a steer. The contentions on this appeal relate entirely to the first count, and therefore the second will not be further noticed. The defendant answered the first count, admitting its corporate capacity and the killing of the cow claimed by the plaintiffs to be theirs and denying every other allegation of said count. Verdict and judgment in favor of the plaintiffs for $ 40. The amount in controversy not exceeding $ 100, this appeal is taken by the defendant on the certificate of the trial judge, under section 4110 of the Code, that it is a case in which an appeal should be allowed.
Reversed.
R. M Wright for appellant.
M. J. Mitchell for appellee.
I.
The general direction of the defendant's road is north and south. It runs through plaintiffs' farm on a continuous curve, entering it from the northwest across the west line of the farm, and leaving it a short distance north of the south line; thus leaving a small part of the farm west of the track, which plaintiffs used as a pasture. The dwelling house and stock yards are east of the track. There was a private crossing, with gates, in the right of way fence, but no cattle guards, by which the plaintiffs had access to said pasture, and to the public highway along the west side of their farm. On the evening of October 26, 1898, the plaintiffs sent Charles McGill, a lad aged 15, on horseback, to drive 25 or 30 head of cattle from the pasture over said private crossing to the stock yard. Two regular trains due to go south between 5 and 6 o'clock P. M. having passed, the boy went to drive up the cattle, leaving the crossing gates open as he went, and he at once proceeded to drive the cattle over the crossing. An extra freight train, going south, came along when the cattle were on the private crossing, and struck and killed the cow for which compensation is sought. There are two highway crossings northwest of said private crossing, the first being 405 feet distant therefrom, and the other 1,848 feet beyond that, making the distance to the furthest crossing 2,253 feet. Plaintiffs charged, as the negligence causing the killing of their cow, as follows: That defendant failed to put in cattle guards at said private crossing within a reasonable time after being requested so to do; that defendant's enginemen on said train failed to ring the bell or sound the whistle at either of said crossings.
II. We think the charge of negligence in not putting in cattle guards should not have been submitted to the jury, for two reasons: The court properly stated the law to be that the defendant was required to build and maintain cattle guards within a reasonable time after having been properly requested (Code, section 2022); also that the request must be of some officer or agent of the company acting within the scope of his duties, such duties including the management or control of the putting in of cattle guards or of ordering them to be put in. The evidence not only fails to show that any of the...
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McGill v. Minneapolis & St. L. R. Co.
... ... Fitch v. Railroad Co., 13 Hun, 668. That the boy was negligent can hardly be questioned. It is in evidence that, knowing that the regular trains had passed as usual, ... ...