McCool v. Galena & Chicago Union Railroad , 17 Iowa 461 ( 1864 )

Wright, Ch. J.

1. nbw tocein«Se record. Much of appellant’s argument as devoted to the first and second causes assigned as grounds for a new ^ being insisted that defendant’s cot-porate character was not established, or if estab-ijspe¿) n0 negligence was shown. To this appellee responds, and with entire correctness, that the bill of exception does not purport to set out all the evidence, and that there is, therefore, nothing in this part of the case which we can review. It is recited, it is true, that certain facts were established, but whether these were all, or how many others important and material were shown, nowhere appears from the record. In this attitude of the case, of course there is nothing to rebut the presumption that the evidence did prove the existence of the corporation, and even the grossest negligence. As to one, and the main question discussed by counsel, however, we refer to Jones v. Galena and Chicago Union Railroad Company, 16 Iowa, 6.

2. Rail-B°ingof' querei The third point made in the motion, has but little if any more to sustain it in the record. Appellant’s position is this: Defendant is only liable for injuring or killing live stock lawfully running at large. By § 1522 of the Rev., hulls are expressly prohibited from running at large, and defendant would not therefore be liable for injuring or killing such an animal, unless the loss was the result of gross negligence. But the existence of gross negligence is in no manner rebutted in this record. Por aught that appears, the killing was occasioned bj the grossest negligence. And as it is admitted that the defendant would be liable for gross negligence (and we accept the admission, without inquiring into, or expressing an opinion upon the correctness of the rule), and as we are required to indulge in any fair and allowable presumption which will sustain the rulings below, we feel constrained, without elaborating the points made in appellant’s briefj to affirm the judgment. As bearing, however, upon this question, see the following authorities: Sarch v. Blackburn, 4 Carr. & P., 297; Sills v. Brown, 9 Id., 601; Bush v. Brainard, 1 Cord., 78; Rathburn & West v. Payne, 19 Wend., 399; Buckle v. New York Dry Dock Company, 2 Hall, 151; Smith v. Smith, 2 Pick., 621; Lynch v. Nurdin, 1 A. & E. (N. S.), 29; Marriott v. Stanley, 1 M. & G., 568; Brown v. Maxwell, 6 Hill, 592; Hartfield v. Roper and Newell, 21 Wend., 615; Pluckwell v. Wilson, 5 C. & P., 375; Manger v. Tonawanda Railroad Company, 4 Com., 349; Syke and Dumond v. Van Leuven, 4 Denio; 127; The Tonawanda, Railroad Company v. Munger, 5 Id., 255.

Affirmed.