Miller v. Chi. & N. W. Ry. Co.

Decision Date21 October 1882
Citation59 Iowa 707,13 N.W. 859
CourtIowa Supreme Court
PartiesMILLER v. CHICAGO & N. W. RY. CO.

OPINION TEXT STARTS HERE

Appeal from Story circuit court.

This is an action to recover double damages for the killing of plaintiff's horse, upon defendant's depot grounds, by a train running, it is alleged, at a greater rate of speed than eight miles an hour. Upon motion of the defendant all that portion of the petition relating to double damages was stricken out. The defendant denied the allegations of the petition, and alleged that the plaintiff contributed to the injury by allowing his horse to run at large in the vicinity of the depot grounds. There was a jury trial, resulting in a verdict and judgment for the plaintiff for $100. Both parties appeal. The defendant having first served notice of appeal is to be denominated the appellant.Hubbard, Clark & Dawley, for appellant.

Geo. A. Underwood and S. F. Balliett, for appellee.

DAY, J.

1. It is insisted by the defendant that the verdict is not supported by the evidence. Section 1289 of the Code provides: “The operating of trains upon depot grounds necessarily used by the company and public, where no such fence is built, at a greater rate of speed than eight miles per hour, shall be deemed negligence and render the company liable under this section.”

There was evidence tending to show, and from which the jury could have found, that the train in question, when it passed the east switch and entered upon the depot grounds, was running at the rate of from 15 to 16 miles an hour, and that the whistle for stock was made soon after the engine crossed the switch. Before the animal actually came upon the track, which was about five or six rods ahead of the engine, it appears without conflict in the evidence that the train had slowed down to a speed less than eight miles an hour, and that when the engine struck the horse in question the train had so nearly stopped that the fireman got off the engine and went ahead of it, and drove another animal off the track. From the fact that the stock whistle was sounded soon after the train passed the east switch, the jury were authorized to find that the animal in question was then discovered in a dangerous situation. And from the fact that the train had so nearly stopped when the accident occurred, the jury were authorized to find that the train would have been stopped entirely if it had entered the depot grounds at a speed not exceeding eight miles an hour. It follows that the accident may have been occasioned by the train's entering upon the depot grounds at a speed greater than eight miles an hour, notwithstanding the fact that the train had slowed down to a speed less than eight miles an hour before the animal actually came upon the track. We do not feel authorized to disturb the verdict, upon the ground that it is not supported by the evidence.

2. The evidence shows that the plaintiff lived about 100 yards from the depot, and that the night before the injury he turned his horses out to graze, north of the depot, and that they were in the habit of running at large and grazing upon the depot grounds....

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3 cases
  • Baker Wire Co. v. Chicago & North-Western Railway Co.
    • United States
    • Iowa Supreme Court
    • 10 Octubre 1898
    ... ... of the Koons Case by characterizing the statute ... there construed as penal. Miller v. Railroad Co., 59 ... Iowa 707; Moriarity v. Railway Co., 64 Iowa 696 ... These cases are in line with the Herriman Case, and ... lend it ... ...
  • Baker Wire Co. v. Chi. & N. W. Ry. Co.
    • United States
    • Iowa Supreme Court
    • 10 Octubre 1898
    ...court has indirectly questioned the authority of the Koons Case by characterizing the statute there construed as penal. Miller v. Railroad Co., 59 Iowa, 707, 13 N. W. 859;Moriarty v. Railway Co., 64 Iowa, 696, 21 N. W. 143. These cases are in line with the Herriman Case, and lend it support......
  • Miller v. C. & N. W. R. Co
    • United States
    • Iowa Supreme Court
    • 21 Octubre 1882

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