See v. Wabash Railroad

Siierwin, J. The plaintiff was injured in Missouri, where a statute was in force at the time, requiring railroad companies to construct and maintain-good and sufficient crossings where their railways cross public roads or streets. The character of the crossing necessary was specified-, and it provided that upon a failure to construct or maintain such crossings, the municipal authorities or the parties having legal control of the roads or streets should notify the company of the necessity of the construction of the crossing, and, if there was a failure to construct the same within thirty days from the service of the notice, the parties having charge of the street or road might construct it at the expense of the delinquent company. The same act also made the railway com [445] pany liable for all damages resulting from sucb failure or neglect to construct the crossing. i. crossings: approaches. This statute absolutely required the companies to construct the specified crossings wherever their roads crossed public streets or roads, and made them absolutely liable for a failure to do so. The provision for notice when there had been such failure, and for the construction thereof by the municipal or other authorities, was for the protection and accommodation of the public only, and did not affect or lessen the duty or liability of the delinquent company. Lincoln v. St. Louis, I. M. & S. Ry. Co., 75 Mo. 27. That an approach 1° a crossing, situated on the company’s right Qf way, is a part of the crossing, can hardly be questioned. Farley v. C., R. I. & P. Ry. Co., 42 Iowa, 234; City of Kansas v. K. C. Belt Ry. Co., 102 Mo., 633 (14 S. W. Rep. 808, 10 L. R. A. 851); Chesapeake, O. & S. W. R. Co. v. Dyer County, 87 Tenn., 712 (11 S. W. Rep. 943). And that the duty to erect a crossing would necessarily imply a duty to maintain it cannot, we think, be seriously questioned. The statute under consideration, however, expressly says that it shall be maintained by the company. 2 contribggeniL’bSr-" den of proof. The twenty-fourth ground of the motion for a new trial was not based upon the statute in question, and there was no error in overruling it for this reason alone. What we have already said disposes of the contention that the instructions based upon the statute in question wer6 wrong_ The court properly instructed that the burden of proof was upon the defendant to show contributory negligence on the part of the plaintiff. This is true under any view which may be taken of the case. If it be held that the procedure of this state is to govern, it is settled by our own cases under a similar statute. McKelvy v. B., C. R. & N. Ry. C., 84 Iowa, 455; Reeves v. Dubuque & S. C. R. Co,. 92 Iowa, 32. And the rule is the same in Missouri. Thompson v. Railroad, 51 Mo., 190 (11 Am. Rep. 443); Petty v. H. & St. J. Ry. Co., 88 Mo., 306; Parsons v. Mo. P. Ry. Co., 94 Mo., 286 (6 S. W. Rep. 464.) [446] Practically all of the thirty paragraphs of the court’s instructions are challenged, and it is obvious that it would be impracticable to attempt a discussion of each separately, and we shall specifically notice but one in addition to those disposed of by what has already been said. crossing-. duty to take another road: instruction. The injury complained of was received while driving a team, over the crossing and on to a bridge constituting a part thereof. The team, and the wagon in which the plaintiff was at the time, went over the bank at the end of the bridge into a ravine. It was claimed by the ° , appellant that the approach had been m its then x x . . x x . condition for a lopg time, and that the plaintiff was aware of such condition. The way was icy and slippery on the night of the accident, and the night dark, and the defendant offered evidence tending to show that the plaintiff might have traveled another and safe road to reach her home. The court instructed on this point, and told the jury that “if the plaintiff had knowledge of the dangerous and defective condition of the crossing, but had reasonable grounds for believing and did in fact believe that she might pass over it in safety in the exercise of ordinary care, and did not believe and was not bound to believe, as a reasonably prudent person, that it was imprudent to undertake its passage, she was under no obligation to take another road.” This 'instruction states the rule which has often been held to obtain in cases of defective ways. Graham v. Town of Oxford, 105 Iowa, 705; Nichols v. Town of Laurens, 96 Iowa, 388; Kendall v. City of Albia, 73 Iowa, 241. We find no other prejudicial error in the instructions when considered as a whole, as they must be under the well-settled rule. There are expressions in some of them which, considered separately and distinct from the subject-matter being treated, might constitute error, but as an entirety they fairly and fully submitted the case to the jury. Nor do we think there was error in refusing to give the instructions asked. When material and correct, they were embodied in those given. [447] 4. Evidence: repair of crossing. We shall only notice such rulings on the introduction of evidence as we think erroneous and prejudicial. Many witnesses were permitted to testify to the repair of the crossing in question after the injury. This testimony . , . . , was clearly incompetent, for its evident purpose and intent was to show its unsafe condition at the time of the accident, and the defendant’s negligence. The force of this objection is sought to be broken by the argument that the appellant did not make timely objections to the testimony, and that it afterwards offered evidence contradicting it. But we find objections made to the testimony — fully as many as were necessary to preserve a record of the error — and that they were overruled. It ivas not a waiver of such objections to offer testimony contradicting the statements. The defendant had done all that it could do to protect its rights, and was either compelled to meet the incompetent evidence, or let it go to the jury as true. We think it had the right to disprove it if possible, without being held to have waived the ruling by so doing. There was error in receiving the testimony of Singleton as to what the wagon wheel would have done under certain conditions. It was his conclusion only. The testimony of the witnesses Seamster, Dotser, and Jumper,, given on a former trial, and read from the shorthand notes of such trial, was not objected to. Furthermore, it is said that it went in by agreement on the trial, which does not appear of record. We have given the evidence careful consideration, and we cannot say that it does not furnish sufficient support for the verdict. It is urged that the case should be reversed on account of the misconduct of counsel in the cross-examination of witnesses and in argument to the jury. Were it necessary, we would not hesitate to plant our decision on these grounds alone, although much of the objectionable matter injected into the ease, both in the cross-examination of witnesses and in argument, was not objected to. But this necessity not existing, pride in the profession deters us from setting out the [448] objectionable matter or discussing it in detail. The record presents a much more flagrant case than was before us in either Welch v. Union Cent. Life Ins. Co., 117 Iowa, 394, or Sullivan v. Chicago, R. I. & P. Ry. Co., 119 Iowa, 464, and it is strange that courts find it necessary in this enlightened age to deal with such questions. Furthermore, much of the time of the trial court was consumed by counsel in crimination and recrimination which would have been out of place, to say the least, in any tribunal, legal or otherwise. It was also necessary for the trial court to threaten-summary proceedings to protect itself against the appellee’s charges of unfairness. That proceedings of this kind more nearly represent a farce than a legal investigation of the relative rights of the parties is too manifest for discussion. "We leave the unpleasant subject with the hope and expectation that we shall not again be called upon to consider it. 5. additional motion to strike. A motion to strike the appellee’s additional abstract was submitted with the case. The appellant’s original abstract of the evidence, and of the excerpts from the appellee’s argumeilts to tlie covers nearly four hundred Pag’es- ' The appellee’s additional abstract makes a book of eighty-eight. It denies the correctness of the appellant’s abstract, and says that the appellant’s abstract contains many errors, but that they are not specifically pointed out, and that the appellee is content to refer to one error specifically. This was done, but nothing more. The rule requires the denial to be as specific as the case will permit, and is not complied with by following the bare denial with what purports to be the entire evidence of a witness, and this without a reference to the original abstract. The reporter’s transcript of the case covers one thousand'two hundred and thirty-six pages, and it is very evident that we cannot read it through, in connection with the abstracts, for the purpose of determining which abstract is correct. The motion to strike is sustained, and, for the reasons pointed out, the case is reversed.