129 Iowa 507 | Iowa | 1905
I. This is an action in mandamus to compel the defendant to construct a private crossing over its track. The plaintiff., owns the north seventeen and one-half acres of the S. E. % S-. W. %, Hie N. E. yA S, W. %, and the S. E. % N. W. Y¿\. of section 18. The defendant’s railroad enters the southeast corner and passes through the seventeen and one-half-acre tract in a northwesterly direction, crossing the north line a little west of its center, and then through the ‘ southwest portion of the lower forty. There was a public highway along the east side of the land on 'the south, and in January, 1904, the company completed a bridge in the highway over the railroad at a cost of $900. In June follow
On the other hand, defendant’s engineer testified that a grade crossing could be made “around the side* of the hill ” at a descent of not more than 30 degrees. •“ Q. And grade out in this man’s farm? A. No; we have the right of way, there. Q. And then you would make a steep road down to the track, and on the other side you would make a steep climb' from the track — is that the idea ? A. 'Make a' reasonable grade. Q. What do you call a reasonable grade ? A. Ten or fifteen feet in 100. Q. Now, you would have to make the highway 200 or 300 feet away from the railroad on each side in your cut for the private road — isn’t that true ? A. It isn’t necessary to have a private road there at all. You would not want to go up there with a wagon at all. Q. That is what you mean, not a suitable road for wagons, but for cows to climb — is that what you mean ? Do you mean to exclude the 'use of team and wagon on the road ? A. No, sir. Q. Then why do you say you wouldn’t have to use wagon and team ? A. Because you have another way of getting around there with a wagon.” Beyond this, the evidence of the character of the approach to such a crossing was not meet, and in view of the undisputed evidence of the character of the embankment, and the equivocal answers of the engineer, it was open to the jury to say whether a grade crossing at this point would be practicable and afford an adequate means of passing from one portion of the farm to the other.
V. In ruling on the motion to direct a verdict, the coiirt remarked that defendant was in no position to avail itself of an agreement for a grade crossing, if made, and in any event this point was in dispute. This was correct in law as well as in fact, because no such issue was raised by the answer, and, though a- grade crossing appears to have been discussed, no one testified that it was agreed upon.
The court might well have inquired whether a grade crossing where the fill begins would furnish adequate means of crossing the track, but the defendant, as it failed to submit such an interrogatory, is not in a situation to complain.
' The record is without error, and the judgment is affirmed.