45 Iowa 497 | Iowa | 1877
Section 2934 of the Eevision required that one cause of action should be expressed in but one statement, and, in case • ^ should be expressed in more than one, and the defendant should move to strike out all but one, it would be necessary for the plaintiff to do so, or prove as many causes of action as there were counts, or pay the costs of the whole trial.
To guard against the inconvenience which might sometimes arise, it was provided by section 2936 that a cause of action might be stated in different counts when the plaintiff could not determine which he would be able to prove. Both these sections are omitted from the Code of 1873, and the effect is, we think, to remit parties to the common law rule allowing the same cause of action to be pleaded in different counts.
But it is further objected that the petition sets up a cause of action not referred to in the original notice. It would appear from the notice that the damages claimed are those given by statute. The petition shows facts which, if true, would entitle the plaintiff to such damages. It also shows other facts which, if true, would entitle the plaintiff to only snch damages as áre recoverable at common law. Still, the 'cause of action, in either case, was the killing of the colt, and we do not think that the objection is well taken.
This instruction the court refused, and we think properly. The appellant in support of the instruction cites Alger v. R. R Co., 10 Iowa, 268 (271), and quotes from the opinion the fol lowing words: “ In those states where the owners of domestic animals are required to keep them within an inclosure, and are not allowed to suffer them to run at large, the courts have ruled that when they are suffered to run at large and happen to stray upon the track of a railroad the servants of the com pany are released from the duty of exercising ordinary care and the company is liable only for gross negligence or willful injury.”
Conceding this to be the rule, and that the animal was such as the plaintiff was prohibited by statute from allowing to run at large, we think that the instruction was properly refused. It ignored the material question upon which the jury’should have been called upon to pass, and that is as to whether the
III. The appellant claims that the verdict is not sustained by the evidence; and certain instructions, the giving of which is assigned as error, are considered by appellant in his argument with reference to the sufficiency of the evidence. It seems to us by no means certain that the injury was caused by the defendant’s fault. But certain circumstances were shown which might be considered as indicating that it was particularly the omission to sound the whistle. What should have been done under the circumstances shown it,is difficult to determine. That question, however, was peculiarly for the jury, and while we doubt the correctness of their verdict wé do not feel at liberty to-disturb it.
Affirmed.