Taylor v. Chi., M. & St. P. Ry. Co.

• Decision Date: 02 June 1890
• Parties: TAYLOR v. CHICAGO, M. & ST. P. RY. CO.
• Court: Iowa Supreme Court

80 Iowa 431

46 N.W. 64

TAYLOR

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

June 2, 1890.

Appeal from district court, Hancock county; JOHN B. CLELAND, Judge.

Action to recover damages for the loss of six stacks of hay alleged to have been burned by fire from one of defendant's engines. Answer, denying every allegation not expressly admitted; admitting that it is a corporation, and was operating a line of railway, as alleged, and alleging that, if any fire escaped from its engines, it was from engine No. 213; also alleging the exercise of due care on defendant's part. The case was tried to a jury, and verdict returned for defendant, upon which the court at once entered judgment against plaintiff for costs. Within three days thereafter plantiff filed a motion to set aside the verdict and judgment, which, by agreement, was continued to the June term, 1888, at which time said motion was overruled. Plaintiff appeals.W. E. Bradford, for appellant.

Geo. E. Clark, for appellee.

GIVEN, J.

1. Appellant moves to strike appellee's denial of portions of appellant's abstract, and to tax the costs thereof and of the transcript to appellee. The grounds assigned are that the denial was not filed in time, and is not true. In a written stipulation for continuances it was agreed that appellee's argument and abstract, if any, must be served and filed before July 1, 1889. The denial was not filed until October 17th. Appellant's statement shows that there were subsequent agreements extending the time. This court will not go into investigations to determine what agreements have been made by counsel. Such agreements will only be recognized when admitted or stated in writing, signed by counsel, and filed in the case. Appellant prefaces the setting out of his motion for new trial by a statement in parenthesis excusing the length of his motion, wherein he alleges 53 grounds for new trial. While such statements should not be embraced in an abstract, it is apparent that this was not intended to be taken as part of the record, and a denial was unnecessary, as it would not be considered. Appellee denies that the abstract contains all the evidence. To determine this it has been necessary to compare the abstract with the somewhat lengthy transcript. Appellee does not point out wherein the abstract fails to contain all the evidence, and, upon comparison, we do not discover that any material portions of the evidence have been omitted from the abstract. Appellee denies that any bill of exceptions was ever signed by the court, or filed, as required by law. We think this denial is not sustained by the transcript, nor the denial that the abstract contains all the pleadings filed in the cause. The abstract, containing, as it does, the substance of the entire record, is sufficient, and should not have been denied. The motion of appellant to strike the denial, and to tax costs of the denial and of the transcript, rendered necessary thereby to the appellee, is sustained. We add in this connection, in answer to appellant's claim, that exceptions were not properly taken; that although the record is confused and difficult to understand, yet it discloses sufficiently that exceptions were taken to each of the rulings wherein error is uged in argument.

2. Appellant contends that the verdict is contrary to the law and evidence. Conceding, as is claimed, that appellant made out his case in full, and that thereby the burden was cast upon appellee to prove care, we think there was evidence to support the finding that appellee had exercised the care required. True, there is much conflict in the evidence, but it is the province of the jury to reconcile these conflicts, and determine what the facts were. It would serve no good purpose to here discuss the testimony at length. It is sufficient to say that there was evidence to support the finding of the jury, and...