121 Iowa 550 | Iowa | 1903
Turning now to the amended and substituted! petition, and we find therein a repetition simply of the allegations of the original -petition, save that an allegation is added as follows: “That, the night being-dark, the horse which plaintiff was driving, without-knowledge on his part, went astray, and wandered over-said defective cattle guard, upon and along said railway-track of the defendant.” We think it manifest tháfc the substantial averments of the two pleadings are-the same. The effect of each is to say that without intention on the part of plaintiff his horse left the .highway,, and went over the cattle guard upon the railway track.. This being true, the motion of defendant to strike was-well taken, and was properly sustained. Town of Waukon v. Strouse, 74 Iowa, 548.—Aeeikmed.