Strever v. Chi. & N. W. Ry. Co.
| Decision Date | 05 October 1898 |
| Citation | 76 N.W. 513,106 Iowa 137 |
| Court | Iowa Supreme Court |
| Parties | STREVER v. CHICAGO & N. W. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from district court, Hamilton county; D. R. Hindman, Judge.
The petition is in four counts, in the first three of which damages are sought because of fires set out or caused by defendant's locomotives. In the fourth count recovery is sought for cattle killed and injured on one of defendant's depot grounds by one of its trains, negligence being charged in the operation of the train. There was a recovery on each of the four counts, the general verdict being for plaintiff in the sum of $175.91. From the judgment, the defendant appealed. Reversed.Hubbard, Dawley & Wheeler, for appellant.
A. N. Boeye, for appellee.
On this appeal, no question is made as to the recovery on the first three counts of the petition. As said in the statement of the case, the cattle were injured on one of defendant's depot grounds, and the negligence charged is that the train was being run at a rate of speed exceeding eight miles an hour, and also a failure to ring the bell and sound the whistle as by law required. It may be conceded that the averments of the petition are such that a recovery might be had because of the negligence charged in either respect upon sufficient proof, and the court so charged the jury. Upon the issue of the right of plaintiff to recover because of negligence in operating the train at an unlawful rate of speed the court gave the following instruction: “It is the law of this state that the operating of trains upon depot grounds necessarily used by the company, and public, where the railroad has not fenced its track, at a greater rate of speed than eight miles per hour, shall be deemed negligence; and it is for you to determine, from the evidence, whether or not the crossing at the alleged place of injury to the cattle was upon the defendant's depot grounds necessarily used by the defendant and the public; also whether or not defendant's track at that point was fenced, and whether or not the defendant's train that ran into plaintiff's cattle was then running at a greater rate of speed than eight miles an hour.” The complaint as to the instruction is that it does not appear that the cattle, when injured, were running at large. While there is a slight contention, in argument, as to the fact, it may be set at rest by a statement that it affirmatively appears that the cattle were not running at large, but were being driven by,...
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