49 Iowa 450 | Iowa | 1878
The answer of defendant alleged that the accident occurred at the depot grounds, without its fault or neglect, and that the animals were wrongfully upon the railroad track at the time. It further charges negligence upon plaintiff in permitting them to stray upon the track. The original petition charges negligence upon the servants of defendant in running the cars against the horses. It will be observed that the original pleadings, in fact, presented this very issue raised by the amendment to plaintiff’s petition. We cannot discover that the amendment changes substantially the claim or defense. It may be that the grounds upon which recovery was sought were changed, but the claim, surely, was not. The amendment was, therefore, authorized by Code, § 2689.
We do not discover that defendant was misled by the change, or that any different evidence could have been submitted had the petition originally stood as it was after the amendment. It was not claimed or shown in the court below that prejudice did result or could have resulted to defendant from the amendment. The action of the court was not erroneous.
We think the question of contributory negligence was properly left by the court to the jury. The law will not imply negligence to defendant. The plaintiff had the right to turn his mare, though she was blind, upon the prairies to graze. While it may be true that she would not so readily escape from danger of a passing train as a horse not blind, it is equally true that she would not be so likely to wander off, and become exposed to the danger of the railroad as a horse with good eyes. We cannot say that, as a matter of law, plaintiff, in turning his blind mare into the prairies or commons more than a mile from the railroad, was negligent and thereby contributed to the injury.
III. Counsel for defendant insist that the verdict is against the evidence for the reason that, in their opinion, there was no testimony showing negligence on the part of defendant’s servants operating the train. We do not concur in this view. .While it is true that the car was not running at a rate of sjoeed forbidden by law when a train is upon depot grounds — a fact very much relied upon by counsel — we think that the jury .may well have found that the engineer and fireman were negligent in not keeping a sufficiently close watch on the track to discern obstacles and animals, and in not attempting to stop the train when the horses were discovered. The low rate of speed at which the train was running would, possibly, have enabled the engineer to stop, or to cheek its progress, so that the horses would have escaped, had any effort in that direction been made. We are clearly of the opinion that there is not
The foregoing discussion disposes of all questions raised in the case. The judgment of the District Court is
AFFIRMED.