Giger v. Chicago & Northwestern Railway Co.

Rothrock, C. J. 1. Appeal: less than $100 : reduction by disclaimer after verdict. — I. The amount claimed in the petition was ninety dollars and interest. The verdict for the plaintiff was $101.10. After verdict plaintiff filed an amendment ^ to his Potion, in which he withdrew all claims for damages in excess of $99.99. The defendant moved to strike • the amendment from the files upon the ground, among others, that the same was made solely to prevent the defendant from appealing the cause to this court, and is in hindrance of justice. The motion to strike was overruled,'and a motion for new trial was overruled, and judgment was entered for the plaintiff for $99.99 and costs. Counsel for defendant contends that the plaintiff could not, by an amendment after verdict, prevent an appeal without a certificate of 494 the trial judge as provided by section 3173 of the Code. This precise question was determined by this court in Wilson v. Insurance Co., 74 Iowa, 212. It was there held that where an amendment was made to the petition after verdict, so as to reduce the amount claimed to less than one hundred dollars, this court had no jurisdiction of the appeal without a certificate of the trial judge. The principle involved in Bateman v. Sisson, 70 Iowa, 518, and Milner v. Gross, 66 Iowa, 252, is to the same effect. Following the cases cited, we are of the opinion that the appeal can only be entertained upon the certificate of the trial judge. 2. Railroads: cattle-guards filled with snow: liability. II. The trial judge made a certificate in which he specifies some five questions upon which it is desirable to have the opinion of this court. Four of these questions embrace really but one question of law, and may be considered together. The question is fairly stated as follows: “If a corporation operating a railway negligently permits its cattle-guard at a highway crossing to become and remain full of snow, is it liable, as for a failure to maintain a good and sufficient cattle-guard, under section 1288 of the Code, for damages by reason thereof?” This question should be answered in the affirmative. See Grahlman v. Railway Co., 78 Iowa, 564, and Robinson v. Railway Co., 79 Iowa, 495. We are content to follow those cases without further discus-' sion or comment; 3. —: colt killed in cattle-guard: proximate cause: question for jury. III. The fifth question certified is a recitation of the evidence as to how or why the colt got into the cattle-guard, and we are asked to determine whether the court erred in refusing to hold, as a matter of law, that there was no eviqence that the failure to remove the snow from the cattle-guard was the proximate cause of the damage sued for. This evidence embraces a large number of facts, such as that the colt was playing with other colts near the cattle-guard a short time before the accident, the tracks made by the colt, its position in the 495 cattle-guard when, found, and other facts. It is contended by counsel for appellant that the evidence did not show that the colt went on the cattle-guard because it was full of snow, but because the animals were playYng in the neighborhood, and the plaintiff’s colt fell into the guard, and that it would have fallen just as it did if there had been no snow in the guard. We agree with the learned judge of the district court that this was a question for the jury to determine, and that it cannot be said, as matter of law, that the colt was not killed by reason of the snow in the cattle-guard. The judgment of the district court is Affirmed.