78 Iowa 391 | Iowa | 1889
I. The points presented in argument require that we notice the pleadings with care. After alleging the defendant’s corporate capacity, and that it was operating a railway through O’Brien county, the petition goes on to state that the plaintiff was the absolute and unqualified owner of one hundred and forty tons of hay in stack upon certain lands described; that said hay was of the actual value of five hundred and sixty dollars; that about the eleventh of October, 1887, said hay was totally destroyed and burned up by a fire, communicated by the spreading of a prairie fire, started and originated from a spark thrown from an engine running on defendant’s road; that the fire was caused by the negligence of the defendant and its employes in running the engine, the same not being properly constructed and supplied with the best-known appliances for the prevention of the escape of fire, and being in a defective and damaged condition; that the engine was negligently handled, and that the employes negligently burned wood as fuel instead of coal; and that the engine was being used in drawing an extraordinarily heavy train of cars, thereby using an unusually excessive amount of steam, and that sparks were emitted, and said fire started, by reason thereof. So much of defendant’s answer as is necessary to notice is as follows: ‘‘Comes now the defendant, and for answer herein admits that it is a corporation owning, operating and managing a line of railway through the county of O’Brien, in the state of Iowa, as charged in the plaintiff’s petition, a.nd it denies each and every other allegation contained in said petition, unless the same is herein otherwise admitted. Division Second. And,
Appellant’s first contention is that the court erred in not excluding said testimony. Appellee contends that the objection was made too late, and that plaintiff’s ownership of the hay was not in issue, and hence that the failure to exclude the testimony was without prejudice. The grounds upon which appellant asked to exclude the testimony were made to appear by the cross-examination, and this was followed by the motion. We think the objection was made in time.
The first division would have stated a complete defense if it had closed with the words “ in the plaintiff’s petition,” or if it denied “each and every other allegation contained in said petition not hereinbefore admitted.” The denial is of “each and every other allegation contained in said petition, unless the same is herein otherwise admitted.” “Herein” refers to the whole answer. The words “unless the same is herein otherwise admitted ’ ’ are surplusage and indeed meaningless, as applied to the first division. It is not a statement of different defenses in a distinct division, and is not within the rule as laid down in Barr v. Hack, 46 Iowa, 308. Plaintiff ’ s ownership of the property burned was directly in issue in Murphy v. Railway Co., 55 Iowa, 476, and Lewis v. Railway Co., 57 Iowa, 127. The point decided in those cases was that one who cut hay on unenclosed lands owned by others, without authority, acquired no property in the hay. We are of the opinion that the answer does not show a statement of affirmative defenses in distinct divisions, but must be all taken together, and that the admission of plaintiff’s ownership of the hay rendered the testimony sought to be excluded immaterial, and hence that the failure to exclude the same was without prejudice.
III. In the instructions to the jury the court said: “And it is also admitted in the. answer that the fire in question was set out by one of defendant’s engines.” It is contended that thereby appellant was deprived of the full benefit of the defense pleaded. The so-called “division second” admits that the fire was set out by defendant’s engine number 300. As we have seen, the answer did not . state different defenses in distinct
VI. Appellee, maintaining that it appears from the record that defendant’s appeal was taken for delay only, moves this court for an assessment against the appellant under Code, section 3196. We think the record shows that the appeal was prosecuted in good faith and not for delay, and therefore overrule the motion. The judgment of the district court is Affirmed.