Morrow v. Chicago, Rock Island & Pacific R'Y Co.

• Decision Date: 20 September 1883
• Citation: 16 N.W. 572,61 Iowa 487
• Parties: MORROW v. THE CHICAGO, ROCK ISLAND & PACIFIC R'Y CO
• Court: Iowa Supreme Court

16 N.W. 572

61 Iowa 487

MORROW v. THE CHICAGO, ROCK ISLAND & PACIFIC R'Y CO

Supreme Court of Iowa, Council Bluffs

September 20, 1883

Appeal from Van Buren Circuit Court.

THIS is a petition for a new trial in an action at law, upon the ground of newly discovered evidence. A demurrer to the petition was sustained, and defendant appeals.

AFFIRMED.

Stiles & Beaman, for appellant.

W. M Walker and Sloan, Work & Brown, for appellee.

OPINION

ROTHROCK, J.

The cause having been determined upon demurrer to the petition it becomes necessary to set out the petition at length. It is in these words:

"The defendant above named states that this action was commenced by the plaintiff before a justice of the peace, to recover for stock alleged to have been killed by the cars of defendant at a point where it had a right to fence but had failed to maintain a sufficient one, but which defendant denied, alleging such killing to have been upon a public highway crossing; that upon the trial before the justice the plaintiff failed to produce any evidence in support of his allegation as to the point where said killing occurred, and the defendant recovered judgment for costs that thereupon the plaintiff appealed to this court, and, at the November term, to-wit., on the twenty-first day of November, 1882, recovered judgment against defendant for the sum of $ 100, with 6 per cent interest from said date, and $ 129.55 costs of both trials; that the engineer and fireman of defendant's train which did the injury, and which was going west at the time, were the only persons who saw the stock at the time of the striking, and they both testified, in both trials, that it was struck outside the railway enclosure and upon said highway, and there was other evidence also introduced on defendant's behalf tending to establish such fact; that upon the trial in this court the only evidence tending, in any substantial degree, to support plaintiff's claim as to the place of injury, was that given by one George Miller, who was subpoenaed by plaintiff after the trial had commenced in this court, or about the time it commenced, and who testified on such trial, and for the first time, that he was at the place of the injury the next day after it occurred, and saw, on the cattle-guard of defendant's road, east of said crossing, a small quantity of blood and hair; that he at the time spoke to one John Moore about it, and showed it to him, and that said Moore saw it, and they talked together in regard to it; that there were several other persons there at the time, gathered there on account of the accident, and examining the scene, but that he neither spoke to anyone else about it, nor called the attention of any one but said Moore to it--the plaintiff and his brother being present also examining said premises; and that said Moore was, at the time witness was testifying, out of this state, and probably in New Mexico, and that witness had never mentioned the facts aforesaid since, until a day or two before he was subpoenaed.

"The defendant further states that some four or five witnesses who were at the scene of said accident with said Miller, gave evidence on the trial, in this court, including plaintiff and his brother, but none of them claiming to have seen any blood or hair at any point east of said crossing, but, on the contrary, testified that they did not; that without the evidence of said Miller, and indeed with it, the evidence greatly preponderated in defendant's favor as to the point where the injury occurred, and but for said Miller's evidence the jury would have found for defendant, or a verdict, if given the...