84 Iowa 663 | Iowa | 1892
I. The first question discussed is whether the petition brings the case within the provi-
III. It is not claimed that there was an abuse of
*667 “12. Yon ]iave been permitted by the court to go to the place where the accident in question is claimed to have occurred for the purpose of examining the gate in controversy. You are instructed, gentlemen, that the only purpose of this examination, and the only purpose for which you can consider such examination, is to aid you in determining the issue, with the other evidence in the case, as to whether or not the material which went into said gate in its construction was defective, and whether or not the manner of its construction was defective; and in considering this you should take into consideration the length of time which has elapsed since the accident and the time of your examination.”
"Whether the view was had under authority of section 2790 or of Nutter v. Ricketts, the same rule will apply as to the purpose of the view. In Close v. Samm, 27 Iowa, 503, 508, the court says, as to the purpose: “It seems to us that it was to enable the jury, by the view of the premises or place, to better understand and comprehend the testimony of the witnesses respecting the same, and thereby the more intelligently to apply the testimony to the issues on trial before them, and not to make them silent witnesses in the case, burdened with testimony unknown to both parties, and in respect to which no opportunities for cross-examination or correction of error, if any, could be afforded either party.” In that case the jury were instructed to decide “from all the evidence in the case, and all the facts and circumstances disclosed on the trial, including your personal examination.” This instruction was held to be erroneous. In this case the jury were told that the only purpose for which they could consider the examination “is to aid you in determining the issue, with the other evidence in the case, as to whether or not the material which went into said gate in its construction was defective, and whether or not the manner of its con-
They were not told that the only purpose was to ’ enable them to better understand and apply the testimony, but it was to aid them in determining the issue, with the other testimony. From this language the jury must have understood that they were to give to their own observations, as to the construction of the gate and the materials used, the place and weight of evidence. We think, the giving of this instruction was error prejudicial to the appellant.
IV. The appellant complains of the ruling refusing to admit the appraisement returned by the administratrix
V. It is further insisted that the liability under section 1289 is to the owner of the stock, and that the
YI. The appellant complains of the refusal to give the first and second instructions asked, and of the first
In the fourth instruction the court directed the jury to take into consideration ‘ The place where the gate was erected, the purpose for which it was erected, and the danger or w;ant of danger to animals running at large, which should escape on said railway track.” We fail to discern wherein this instruction could lead the jury to ignore a lawful or reasonably sufficient gate. What would be a sufficient gate at one place might not be at another. The place, purpose and liability of animals to get upon the track at that place were proper to be considered in determining whether the gate was sufficient. We think the court instructed correctly in the fifth and sixth paragraphs as to the care required of the defendant in constructing the gate, and that there was no error in giving these instructions, nor in refusing the fourth, fifth and sixth asked by the appellant. Our conclusion that the action is under section 1289 answers the objection to the thirteenth paragraph of the charge, and to the refusal to give the seventh instruction asked.
The case being under section 1289, and the defendant having failed to pay upon service of notice and affidavit as prescribed in that section, the plaintiff was entitled to recover, if at all, double damages; hence, there was no error in refusing the seventeenth instruction asked, nor in instructing as the court did upon that subject.
These considerations dispose of all the questions presented. For the error in giving the twelfth paragraph of the charge, we think the judgment of the district court must be reversed.