89 Iowa 708 | Iowa | 1894
This ease was once before in this court, and is- reported in 80 Iowa, 662. On that appeal some questions were determined that affect the consideration of the case at this time, the issues on the two appeals being the same. The pleading for the plaintiff, on which issue, was joined, is a substituted petition. The principal facts alleged are that the plaintiff was the owner of a pair of mares running at large, which escaped onto the right of way of1 the defendant through an open gate in the fence inclosing the right of way, and while there they were frightened by a passing train, find ran ipt? a barbed wir§ fence along the
It will be well to next notice the condition of the record as to the formation of the issues. To the substituted petition there was a demurrer upon two grounds, the court-sustaining it as to the first, and overruling it as to the second. This was followed by a motion to strike from the petition, which was overruled, and this by another demurrer, which was also overruled. The defendant then took issue by answer, after which, came the stipulation and trial. The defendant now urges, in argument, that the district court erred in its rulings on both demurrers
It is to be understood, then, that a recovery could be had on the averments of the petition if sustained by the proofs. To waive the pleading of a material fact
The judgment is aeeibmed.