Dunn v. C. & N. W. R. Co.

12 N.W. 734, 58 Iowa 674

• Court: Supreme Court of Iowa
• Decided: June 13, 1882
• Status: Published

Opinion

Beck, J.

The case may briefly be disposed of, by considering the objections made by defendant, in the order of their statement presented in counsel’s argument.

1. RAILROADS: injury to stock: right to fence: evidence. I. A witness gave testimony relating to the place where the stock went upon the railroad track, and the condition of the fences, to which objection was made on the ground that it was hearsay or based upon the opin- . „ . . ^ ion ot the witness. Ihe objection is not supported by the facts disclosed by the record. The witness related what he had seen and knew from his acquaintance with the locality. Defendant’s abstract shows the witness stated that he “made no examination as to how the mare and filly got on the railroad.” Plaintiff’s amended abstract, which is not denied and must therefore be taken as true, shows that the witness testified that he did make such an examination.

II. The refusal of the court to give certain instructions asked by defendant is the ground of complaint.

The 6th instruction refused relates to the protection to the railroad track afforded by. a bluff to which the railroad fence was built. The substance of this instruction is found in the fourth given, which is in accord with Hilliard v. The C. & N. W. Ry. Co., 37 Iowa, 442.

2. — : — : failure to repair fences: notice: instruction. III. An instruction asked by the. defendant is to the effect that defendant is not liable for fences that were not in repair, unless it had notice thereof and a reasonable time to repair them, and that the burden of proof rests upon plaintiff to show such negligence. In an instruction given by the court the jury are directed that defendant is not liable unless there was negligence in failing to repair the fence within a reasonable time after notice of the defective condition was had. The jury would understand that the burden of showing negligence rested upon the plaintiff. Surely they would not expect defendant to prove it. The court substantially informed them that such negligence must be shown; their* common sense would teach them that the proof should come from the plaintiff.

IY. An instruction asked by defendant is to the effect that if plaintiff of his son knew the fence was defective and failed to notify defendant, plaintiff could not recover.

The court directed that defendant should, have notice of the condition of the fences if out of repair. It cannot be claimed that such notice, to be binding upon defendant, must be given by plaintiff, his agent or servant. Yet this is the effect oí the instruction refused.

3. PRACTICE: instructions not pertinent to issue. Y. The 12th instruction asked by defendant directs the jury that defendant is not liable for failure to construct a cat-tie guard at a private crossing. - As there was no claim in any form that defendant was liable because there was no cattle guard the instruction was not pertinent to the issue.

YI. It is insisted that the verdict is in conflict with the evidence. We think there is not such want of proof as to require the reversal of the judgment. We have sufficiently considered all errors argued by counsel. The judgment of the Circuit Court must be

Affirmed.