70 Iowa 185 | Iowa | 1886
I. The plaintiff, before the commencement of the action, took the testimony of three witnesses, to
Tlie depositions were taken under a statute wbicb provides for perpetuating testimony. Gode, §§ 3745 -3750, and .the sections included. It is not necessary to set out all tlie objections made, nor tbe statute in full. The statute provides that “the applicant shall file in the office of the clerk of the district or circuit court a petition, to be verified, in wbicli shall be set forth, specially, the subject-matter relative to
In the case at bar, the party interested, as the only party sought to be charged with liability, was the Chicago, Burlington & Quincy Railroad Company, the defendant herein. Under the statute, the petition should have set forth the name of the company. It is insisted by the defendant that the petition filed in this case does not do so. The fact is that the petition shows that the injury was caused by the “C., B. & Q. R. R. Go.,” and that the plaintiff expected to bring an action against the same to recover his damages; and it does not contain the name of the defendant, unless the letters above set out constitute its name. They do not, of course, constitute its legal name; but it is said that they are the name by which it is popularly known, and that the court can take judicial notice of such fact. But, in our opinion, we should be going too far to hold that we can. It is certainly not true that every railroad company is popularly known by the initial letters of the words constituting its legal name, nor is there any dividing line between those which are thus known and those which are not. ■ To hold, then, that a railroad company can in legal proceedings be properly designated by the initial letters of the words constituting its name, where it is popularly known by such initial letters, and that it cannot be thus properly designated where it is not thus popularly known, would lead to such difficulties as to demonstrate at once the impropriety of the rule.
It is said, however, that in the case at bar the defendant appeared, and filed cross-interrogatories in the proceedings to perpetuate testimony, and so it was not prejudiced by the error in name, if there was any. But the plaintiff’s difficulty is that he fails to furnish any proper evidence that the defendant did thus appear. A paper was filed, with cross-in
It is said, however, that the defendant’s objections, going to the depositions as a whole, are to be treated substantially
II. The plaintiff was allowed to recover upon the ground that his animals were injured by reason of a want of a fence.
The case is peculiar, and not entirely free from difficulty. The mules in question had been tied, and escaped from the plaintiff’s control, and were killed before he could retake them. The case is somewhat different from what it would have been if they were being pastured upon the land adjacent to the right of way. Three gaps in the fence, in 400 feet, would have exposed the animals but little more than two. But where animals are in use, as in this case, and where the intention is to keep them at all times under control, the case is different. The danger of their escaping upon the track when they have broken temporarily from their fastenings, and the owner is in p.ursuit of them, is enhanced by every additional gap. Because, then, the plaintiff might be deemed to have incurred the responsibility of preventing his mules
For the error in admitting the depositions, the judgment must be
REVERSED.