Timins v. Chi., R. I. & P. Ry. Co.

• Decision Date: 21 June 1887
• Court: Iowa Supreme Court
• Parties: TIMINS v. CHICAGO, R. I. & P. RY. CO.

72 Iowa 94

33 N.W. 379

TIMINS

v.CHICAGO, R. I. & P. RY. CO.

Supreme Court of Iowa.

June 21, 1887.

Appeal from district court, Jasper county.

Action to recover the value of certain horses killed or injured by a train on the defendant's road because of an insufficient cattle-guard. The defendant pleaded a general denial, and contributory negligence on the part of the plaintiff. Trial by jury. Judgment for the plaintiff, and defendant appeals.T. S. Wright and Winslow & Varnum, for appellant.

Alanson Clark, for appellee.

SEEVERS, J.

The defendant's railway was fenced, but the theory of the plaintiff is that the horses got on the railway because a cattle-guard at a highway crossing was insufficient.

1. In stating the issues to the jury, the court failed to state the defendant had pleaded that the plaintiff was guilty of contributory negligence in permitting his stock to roam at large. It is conceded that the herd law was in force, and the defendant insists the plaintiff did not restrain his stock as required by that law. The point is well taken as to the statement of the issues, except that, in the eighth instruction given the jury, the court, it must be assumed for the purposes of the question under consideration, correctly stated the law as to the duty of the plaintiff in relation to restraining his stock. It is not required that the issues should all be stated in a single paragraph of the charge. It is sufficient if they are fairly and sufficiently stated to the jury, in some part of the charge, in such manner as to be understood by the jury, and this we think was done. The eighth instruction requires the jury to determine whether the plaintiff did restrain his stock as required by law; and the plaintiff's duty in this respect, it must be assumed, was correctly stated.

2. The defendant asked the court to instruct the jury as follows: “You are not at liberty, as jurors, to take the fact that the stock mentioned in the plaintiff's petition passed over the cattle-guard in question by stepping between or upon the cross-ties of the cattle-guard, if such you find was the case, and the further fact, if this you also find, that cattle-guards somewhat differently constructed were also in use, and from that draw the inference that the cattle-guard was either defectively constructed or insufficient.” That the court modified by adding: “That is, you cannot draw such inference from such facts alone, if established; but such facts, if established, are proper for you to consider in connection with the other evidence in the case relating to the character or insufficiency of the cattle-guard.” We understand counsel for the appellant to insist that there was no other evidence “relating to the character or sufficiency of the cattle-guard” than is referred to in the instruction as asked, and therefore the court erred in modifying it. In this we think counsel are mistaken. A model of the cattle-guard was before the jury, and also evidence showing the depth of the pit under the timbers of which it was composed, and there was evidence tending to show the size, length, description, and the manner such timbers were placed. It therefore, we think, was for the jury to say, taking into consideration all the foregoing facts and circumstances, whether or not the cattle-guard was reasonably sufficient for the purposes for which it was constructed. This case is distinguishable from Case v. Chicago, R. I. & P. Ry. Co., 64 Iowa, 762, 21 N. W. Rep. 30, in which the holding is that an accident does not raise a presumption of negligence.

3. Special interrogatories were submitted to the jury, and it is said the court erred in receiving the answer to one of them, because it was indefinite, uncertain, and in the nature of a conclusion. This objection seems to be raised for the first time in this court, and...