McLenon v. Kansas City, St. Joseph & Council Bluffs R'y Co. ( 1886 )

Rothrook, J.

1 RAILROADS: injuryto afsMvice°o£ notice. I. The cause involves less than $100, and the appeal comes to us upon questions . .... certified by the the trial judge. The first oí these questions is as follows: “(1) Whether the COpy 0f the notice and affidavit of injury to plaintiff’s cow was properly allowed by the court to be introduced in. evidence before the jury as original evidence; it having been shown to have been a true copy of the original notice and affidavit served upon the defendant more than thirty days prior to the commencement of this suit, and no notice to produce said orignal notice and affidavit having been first proven to have been given to defendant or its attorneys, and the loss or destruction of said original notice and affidavit not being proven.”

It is insisted by counsel for appellant that a copy of the notice was inadmissible without showing that the plaintiff was unable to produce the original; that notice should have been given to the defendant to produce the original, to authorize secondary evidence of its contents. It is provided by section 3698 of the Code that “the posting up or service of any notice or other paper required by law may be proven by the affidavit of any competent witness attached to a copy of said notice or paper, and made within six months of the time of such posting up.” And in Shawhan v. Loffer, 24 Iowa, 217, it was held that his mode of the proof of service of a notice is not exclusive of any other, but that service may be proved by the oath of any person cognizant of the fact. When it was shown that the paper was a true copy of the original by an affidavit, or by the oath of the person who made the service, the copy, with the affidavit attached, or in connection with the oath, was competent evidence. The question should be answered in the affirmative, and this answer accords with the ruling of the district court.

2. APPKAito court'Aess than <£*100 • certificate. II. The second question certified propounds the inquiry whether the affidavit of loss is such “ as is required by statute.” It is sufficient to say of this question that it does not point out any anything in which it is j j <d claimed the affidavit is defective. The question of law should be plainly set out in the certificate of the judge.

III. The third, fourth and sixth interrogatories are vulnerable to the same objection. They do not point out any questions of law. The}' merely refer this court to the record, and ask us to determine whether the court erred in all of the instructions to the jury, and in overruling the motion for a new trial, and in overruling a motion to direct the jury to return a verdict for the defendant.

IY. The fifth question certified is as follows: “(5) Whether, in a case where a railroad is owned and operated by a railroad company, and is also operated by another railroad company having no ownership in said road-bed, the company so owning said road-bed and running its train on the same is liable for stock killed by a train on said road by reason of its failure to fence its track, without proof introduced on the part of the plaintiff' showing, or tending to show, that the stock was injured or killed by a train being operated by the railroad owning said road-bed.1’

We have examined the record and evidence to see whether this question fairly arises in the case, and we think it does not; that is, we do not think that an answer to the question in the negative should lead to a reversal of the judgment. The question itself is liable to the objection that it states an abstract proposition of law, with no reference to the facts of this case, and it assumes that it is important that the proof of the ownership of the train that lriiled the stock should be introduced “ on the part of the plaintiff.” Now, it is wholly immaterial whether evidence is introduced by the one party or the other, and the additional abstract filed by the appellee shows that the defendant procured one McFarland, who had before been called by the defendant to appraise stock that had' been injured or killed, to see the cow after she w;as injured. This was evidence in the nature of an admission that it was defendant’s train that caused the injury.

We have repeatedly held that the certificate in this class of cases should point out the questions to be determined, and they should recite the facts upon which the questions of law arise, so that they may be determined without resorting to the evidence in the case. Akkirmbd.