89 Iowa 193 | Iowa | 1893
The pleadings and evidence show that on the morning of Sunday, the ninth day of November, 1890, a colt owned by the plaintiff was found dead a few feet from the railway track of the defendant, at a point north of Panora, where the right to fence its right of way existed, but where there was no fence. Nothing in the external appearance, of the colt indicated the cause of its death. Its skin was removed, and a severe bruise on the right shoulder, and a less important one over ■the right hip, were disclosed. The bruise on the shoulder extended below the surface, and a dissection showed that the immediate cause of death was the rupture of an artery under the sternum. When last seen alive, late in the afternoon of November 8, the colt, with three others, was a short distance west of the railway, moving
It is the theory of the plaintiff that the colt, while attempting to cross the track, was struck by the engine of the train of the defendant which passed northward at the place of the accident a few minutes before 6 o’clock in the afternoon of November 8, and thrown from the track a distance of twenty or twenty-five feet, thereby receiving the injuries which caused its death. The defendant denies that the theories are sustained by the evidence, and insists that the death of the colt might have been caused by a kick from one of the other colts as well as by a blow from the engine.
II. The fifth paragraph of the charge to the jury was as follows:
The defendant complains of this on the ground that no issue in regard to negligence was tendered by the pleadings, the failure to build the fence alleged in the petition having been admitted in the answer. The plaintiff concedes that this is true, but insists that no prejudice resulted from the giving of that portion of the charge. We are of the opinion, however, that the record does not show that no prejudice resulted from it. Its natural effect would be to confuse the jury in regard to the real issues they were required to determine, and to induce them to seek for evidence of negligence on the part of the employees of the defendant. It appears that the glass of the headlight of the engine which it is claimed struck the colt was broken, and at Panora a lantern was placed in the reflector, and used in lieu of the ordinary light. What effect that had in the minds of the jury, in connection with
For the errors pointed out, the judgment of the district court is eeveesed.