Fell v. B., C. R. & M. R., 43 Iowa 177

Fell v. B., C. R. & M. R.

43 Iowa 177 | Iowa | 1876

Rothrock, J.

ness^fonner" uiai. I. One Patrick Burns was a witness on the trial of the case before the justice of the peace. After the trial before the justice, said Burns died. On the tiaa^ °*' ^ie CaSe c^rcui* court, the plaintiff was called as a witness and asked by her counsel, “What did Patrick Burns swear to on the trial of this case before the justice?” To this question defendants objected, because it was not shown that the witness could give all of the testimony of the deceased witness. The objection was overruled, and plaintiff testified as follows:

“ I recollect all he swore to — the substance of it — but not every word. He swore that he was coming along the road under the bluff, near the railroad, with his team and a load of wood; and that the locomotive came along very fast, so fast that he took notice of it, and it killed my cow. He swore there were some young men on the locomotive laughing and cutting up, and paying no attention to what they were doing. That he saw the cow a good distance off, and the locomotive fellows could have seen her too if they had looked. He said a great deal in his testimony. I don’t remember all he said. He got excited when Mr. Richman questioned him, and talked a great deal.”

In response to a question by the court the witness testified: “ I can’t remember all that Burns said. He- said the cow was *179coming from the water, and she ran fast, but the engine ran so fast she could not get across the track.”

This testimony was material on the question as to the negligent running of the engine. Indeed it was the principal evidence on the part of the plaintiff. Two other witnesses state that at the time of the accident the engine was running very fast, but give no other particulars. The defendants introduced two witnesses who relate such a state of facts as should entirely exonerate the defendant from any liability. A witness called to give the testimony of a deceased witness upon a former trial, must state the substance of all that was sworn to by such deceased witness. 1 Greenleaf on Evidence, See. 165; Harrison v. Charlton, 42 Iowa, 573.

The witness in this case, while she stated that she recollected all Burns swore to — the substance of it, but not every word, yet before the close of her testimony and in response to the court, she admits that she can’t remember all that Burns-said, and she nowhere states that what she details is the substance of all that Burns testified to, but admits that when Mr. Rich-man questioned' him he (Burns) got excited, talked very fast, and talked a great deal, but she does not pretend to give the substance of what he said. Upon the conclusion of the examination of the witness, the defendants moved that*her testimony be excluded from ' the consideration of the jury for the reason above given,'which motion was overruléd. "We are of the opinion that the court erred in thus ruling, and that the testimony ought to have been excluded.

2. ——: city negiigenee. II. The plaintiff introduced an ordinance of the city of Muscatine, entitled “ An ordinance relating to the Mississippi c& Missouri Railroad,” which grants to said railroad right of way over certain streets and public grounds. Section 6 of said ordinance is as follows:

“ Sec. 6. Said company shall not be allowed to run its trains through said city at a greater rate of speed than six miles per hour, and shall cause the locomotive bell to be kept ringing on such train during its entire passage through the streets.”

This ordinance has especial reference to the railroad therein *180named, and does not apply to all roads running into or through the city. The defendant objected to the introduction of said ordinance, for the reason that the rule prescribed as to the .running of trains has no application to the locomotives of defendant. This objection was overruled and is assigned for error.

There is nothing in all the record of the case to show that the defendant was a lessee of the M. & M. Railroad, or that it was running its engine on the track of that road. If it had been shown that this accident happened on the track of theM. & M. Railroad, as granted and fixed by the ordinance, and that the defendant was using said track under some arrangement with the M. & M. R. R. Co., or its successor, it may be conceded that in using the track the defendant would he bound to comply with the ordinance in running its trains.-. But until some such state of facts was made to appear, it was error for the court to allow said ordinance to be introduced,- and assume in the instructions to the jury, as it did, that the-, violation of the ordinance was negligence.

3 practicejuíige^ap-Ú peal. III. The plaintiff makes a question as to the sufficiency of the certificate of the circuit judge, authorizing this appeal.^he certificate is in the language of the statute, Code, Sec. 3173, and we believe that to be sufficient without stating the particular question of law upon which it is desirable to have the opinion of this court; and that the certificate brings the whole case here to he passed upon the same as if the amount in controversy was over $100.

For. the errors above enumerated, the case will be reversed and remanded for a new trial.

Reversed.