Schlengener v. Chicago, Milwaukee & St. Paul. Railway Co.

Seevebs, <T. 1.eailkoads: stock:service of notice. — I. When stock is killed or injured by reason of tlie operation of a railroad at a place where tlie comPaiiy has the right, but has failed, to fence its road, double damages may, under the statute, be recovered. But to entitle the plaintiff thereto, he must serve a notice in writing, accompanied with an affidavit showing the injury or destruction complained of, “on any officer, station or ticket agent, employed in the management of the business of the corporation in the county where the injury complained of was committed.” Code, § 1289. To the notice was attached the affidavit of IT. II. Bush, in which it was stated he -had served the notice on “II. E. Barber, station agent of the defendant, at Garner, Iowa;” and Mr. Bush testified as a witness that ho had served the notice on “H. E. Barber, the agent of the defendant, at Garner,” The foregoing evidence was objected to on the ground that the same was immaterial and incompetent. The objection was overruled, and this ruling of the court is assigned as error. The point now made is that under the evidence the plaintiff was not entitled to recover double damages, because it was -not shown that the person on whom the notice was served was “employed in the management of the business of the corporation.” In Welch v. C., B. & Q. Railway Company, 53 Iowa, 632, the notice was served on “J. B. Sullivan, at the station at Clarinda, in said county, said Sullivan being the station agent of said road at said place;” and it was held that the service was sufficient. Following that case, we must hold the service of the notice in this case to be sufficient. 2. IfTSTEtrOden'of prooi It is assigned as error that the court failed to say to the jury that the burden of proof was on the plaintiff, and that before he could recover he must establish the necessal7 facts by a fair preponderance of the evidence. The charge of the court fairly and fully [237] sets forth the facts which must be found by the jury before the plaintiff could recover. There was no conflict in the evidence, and wé infer that the defenant did not introduce any evidence. The only question before the jury, therefore, was as to the sufficiency of the evidence introduced by the plaintiff. Under such circumstances, the defendant could not have been prejudiced by the failure of the court to say to the jury that the burden was on the plaintiff, and that he must establish his right to recover by a preponderance of the evidence. We doubt whether this point was made in the court' below until after the verdict. If so, it came too late. The record fails to show that the attention of the court was called to the omission before the jury retired to consider as to their verdict. 3 eaimíoads: íéfioe:°evicience. III. It is said, there was no evidence tending to show that the right to fence existed at the place whére the stock was But we think there was. The plaint- • iff testified that the cattle killed were “feeding on my place,” and that “there was no highway or public crossing where they were killed.” Another witness testified: “I saw the engine strike the two heifers. There was no public highway or crossing at the place.” The sufficiency of this evidence was for the jury. By the term “place” the plaintiff meant farm, and the jury, no doubt, so understood him. The defendant had the right to fence its road through the plaintiff’s farm, unless at a place where it was crossed by a highway. We think the evidence was sufficient to warrant the verdict. The appellee asks that he be allowed damages under the statute, on the ground, that the appeal was not taken in good faith, but for the purpose of delay. But we are not prepared- to say that this so clearly appears as to justify us in awarding damages. Aeeirmed.