Nichols v. The Chicago Great Western R. Co.

• Decision Date: 04 April 1895
• Citation: 62 N.W. 769,94 Iowa 202
• Parties: C. M. NICHOLS v. THE CHICAGO GREAT WESTERN RAILWAY COMPANY AND THE CHICAGO, ST. PAUL & KANSAS CITY RAILWAY COMPANY, Appellants
• Court: Iowa Supreme Court

62 N.W. 769

94 Iowa 202

C. M. NICHOLS v. THE CHICAGO GREAT WESTERN RAILWAY COMPANY AND THE CHICAGO, ST. PAUL & KANSAS CITY RAILWAY COMPANY, Appellants

Supreme Court of Iowa, Des Moines

April 4, 1895

Appeal from Buchanan District Court.--HON. JOHN J. NEY, Judge.

Action at law to recover damages for injuries done to some live stock shipped by plaintiff from Independence, Iowa to Jamestown, N. D. The court, after submitting the case to the jury, recalled them, and gave a peremptory instruction to find for defendants upon the pleadings. On plaintiff's motion a new trial was granted, and defendants appeal.

Affirmed.

O. C Miller and C. E. Ransier for appellants.

M. R Eastman and Lake & Harmon for appellee.

OPINION

Deemer, J.

This action was brought against the Chicago, St. Paul & Kansas City Railway Company, as owner, and the Chicago Great Western Railway Company, as lessee, of a line of railroad in this state, to recover damages for negligently and carelessly operating one of its trains so that some live stock being carried over the road was injured. The defendant, in its answer, first made a general denial, and next pleaded a written contract which contained a stipulation limiting its liability for injuries to horses to one hundred dollars per head, and a further stipulation that the company should not be held liable for loss or damage to property under shipment unless claim therefor was made in writing upon one of its agents within thirty days from the date of the contract, and alleged that no written notice or claim was at any time made. The plaintiff, in reply, pleaded "that this defendant charges in his answer herein filed 'that they are not liable to plaintiff for live stock for more than $ 100 per head, and that this carrier is not to be held liable for loss or damage to property under this shipment unless claim thereof is made in writing upon one of its agents, within thirty days from the above date;' that the above conditions set out in said contract are void, are not in accord with the law of the state of Iowa; that they are opposed to public policy and are void." Evidence was adduced on the issues thus presented, and the cause was fully submitted to the jury. After the submission the judge directed the jury to be brought before him, and thereupon gave the following instruction: "When I instructed you, gentlemen, I overlooked the fact that the plaintiff had filed a reply here which admits, in effect--that is, the effect of a reply--of filing a reply--is to admit that the matters well pleaded in the answer are true; and that being the case, it admits that notice was not...