175 Iowa 483 | Iowa | 1915
Lead Opinion
The accident in question occurred near the defendant’s railway station at the incorporated town of Blanchard, in Page County. While the general course of the railway is east and west, its track curves, as it enters the town from the east, and runs thence substantially due north for a considerable distance. Some 1,500 feet or more north of the station is a stockyard or stock pen, adjacent to the track on the east side. On the opposite side and near the right of way is a slaughterhouse and stock pen. From this house running north about 300 feet, where it turns at a right angle eastward and thence across the tracks, is a lqne or road, affording communication between the public street on the east side of the right of way and the slaughterhouse and stockyards. It is graded
“The crossing where the accident occurred was in the nature of a private crossing. A railway company is not required to use the same care towards persons using private crossings as it is toward those who are using public ones.”
The only criticism made of this language is based upon the use of the words, “in the nature of,” when, counsel say, the court should have told the jury unequivocally that it was in fact a private crossing. It is indeed difficult to imagine how the form of expression employed by the court could have prejudiced the defense. The crossing was not a public one in the sense that it was a recognized or legally established highway; and on the other hand, it was something more than a private one, as that phrase is commonly used with reference to crossings furnished by a railway to connect the parts of a farm severed
Several objections were made and exceptions taken to
“Mr. Ferguson closed for the plaintiff. In his closing argument, the court being absent from the room, defendants asked for return of the court and reporter, and made the following objections to remarks of counsel in closing argument.”
Following these words, defendants’ counsel undertook to repeat as part of his objection certain language which he said
Most of the other assignments of error have not been argued, and, so far as the remaining points made have been mentioned in argument, but not referred to in the opinion, we think that they are without merit.
We find no sufficient ground for setting aside the judgment below, and it is — Affirmed.
Concurrence Opinion
(specially concurring). — I think that the question propounded to the fireman, treated by the majority in the third division of the opinion, should be considered on its merits, and not put aside because we cannot say what the answer of the witness would have been. Surely counsel should not be permitted to ask a leading question suggesting to both the court and witness what the answer would be, and, if it sufficiently appears what the purpose of the question was, this should be held sufficient. It is perfectly manifest from the questions put to the witness that the defendants were trying to prove by this witness that the fireman on the engine, after passing the depot or station in Blanchard and after looking up the track, proceeded to coal the engine and to otherwise attend to it, thereby leaving his station when he should have been on the lookout for people on the track, and that in so doing he was simply doing his duty to his employer, and therefore was not negligent in temporarily leaving his seat. He was asked, "What do you say as to that being your duty?” and "What is your ordinary duty after you pass a public highway or other opening ? ’ ’ To my mind it is apparent what the purpose of these questions was and just as clear that the