Siemonsma v. Chi., M. & St. P. Ry. Co.
| Decision Date | 11 March 1908 |
| Citation | 115 N.W. 230,137 Iowa 607 |
| Court | Iowa Supreme Court |
| Parties | SIEMONSMA v. CHICAGO, M. & ST. P. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from District Court, Sioux County; Wm. Hutchinson, Judge.
Action at law to recover damages growing out of the negligence of defendant in connection with a shipment of cattle. There was a verdict in favor of plaintiff, on which judgment was entered. Both parties appeal. The defendant will be denominated the appellant; its appeal being first in point of time. Reversed.Shull, Farnsworth & Sammis, J. H. Hutchinson, and C. A. Plank, for appellant.
G. Klay and G. T. Hatley, for appellee.
We may first dispose of plaintiff's appeal. Defendant operates a line of railway from Chicago west across the states of Illinois and Iowa, crossing the Mississippi river at Savanna. Plaintiff resides at Rock Valley, a station on the line of defendant's railway in Sioux county, Iowa. On Monday, July 3, 1905, plaintiff delivered to defendant for shipment from Rock Valley to Chicago 243 head of cattle, and it is the contention made by him in pleading that the shipment contract entered into was oral in part. He says that it was orally agreed by defendant that said cattle should be transported by special train, “and, while it could not guarantee to transport said cattle in 28 hours, it would use every effort to do so, and to deliver said stock in Chicago in time for the market held on the second day after leaving Rock Valley”; that after said stock had been acceptedby defendant, and loaded on cars, “the parties, for the purpose of enabling the persons in charge of said stock to prove their right to free transportation, reduced part of the oral agreement to writing,” and a copy of the writing is attached. On its face the writing is designated as a “Limited Liability Live Stock Contract,” and one of the provisions thereof is that “the company shall not be liable for injury or damage to said stock by or on account of the delay thereof during its transportation, and it does not agree to deliver said stock at destination at any specified time.” According to the further allegation of the petition, the stock was not delivered in Chicago within 28 hours, or on the morning of the second day after shipment, and on this is predicated the claim for damages. The answer of defendant makes denial of the oral agreement pleaded, and it is alleged that the writing exhibited by plaintiff contains all the agreements between the parties respecting the shipment in question. On the trial plaintiff sought to make proof of the oral agreement pleaded, and, defendant objecting, he was not permitted to do so. The case was then tried and submitted to the jury, on the theory that writing evidences the contract of the parties. On the coming in of the verdict plaintiff did not complain thereof, as to the amount or otherwise, by motion for new trial, nor did he save an exception to the judgment entered thereon in his favor.
In plaintiff's notice of appeal, it is stated that the appeal is “from the rulings and judgment of the district court,” etc. In the brief it is said that the error relied on for reversal arose out of the refusal of the court to permit plaintiff to make proof of the oral agreement pleaded. Just what is intended by the appeal is not easy to determine. We cannot believe that plaintiff wants the judgment in his favor--of which he has not and does not complain as inadequate--reversed. And yet he says as much in presenting his appeal, while on defendant's appeal he strenuously insists that the judgment was right, and should be affirmed. Counsel does not point out to us how we may at one and the same time both reverse and affirm a judgment, and we confess our inability to meet the problem. It may be--and this seems most probable--that the appeal is expressive only of a desire that we rebuke the trial court for error in the ruling on evidence, and, having done this, that we stop short of any interference with the judgment. Respecting this, it is sufficient to say that no appeal lies from a ruling on evidence. Such can only be reviewed where the error inheres in the judgment, and the appeal is brought to secure a modification or reversal of such judgment. See Code, § 4101, and cases cited thereunder.
2. Coming now to a consideration of defendant's appeal, it is proper that we take note to begin with of the issue upon which the case was tried. The trial court, as we have seen, took the view that the...
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