L. S. Huntley & Son v. Chicago, Burlington & Quincy Railroad , 142 Iowa 697 ( 1909 )

Sherwin, J.

The plaintiffs are dealers in fancy cattle, and loaded the bull in question on one of the defendant’s cars for shipment to the state fair at Des Homes, Iowa. They allege that in making up the train at Chariton, Iowa, the defendant was guilty of such negligence in moving its cars, and the car in which the bull and other stock was loaded, as to fatally injure the bull, from which injuries it died a few days later. The defendant’s answer was a general denial.

1. Railroads: injury to stock in transit: damages: The principal ground upon which the defendant asks a reversal is that the evidence is insufficient to sustain the verdict of $400, which was returned for the plaintiffs. There was evidence produced for the defend- - . 1 ,. 1 _ _ ant on the trial tending to show that the ° bull had tuberculosis at the time of his death, and the appellant also' contends that there was no warrant in the evidence for the finding of the jury, in answer to a special interrogatory, that the bull did not at that time have tuberculosis.- It would serve no useful purpose to review in detail the evidence presented by the record. The defendant’s negligence is practically conceded, and it is also practically conceded that the plaintiffs were entitled to recover some amount for the loss of the bull. As in all cases of this kind, there was a wide diversity of opinion among cattlemen as to the value of the bull at the time of the injury. Some of the witnesses testified that his value was $1,000, and, on the other hand, there was- testimony that he was not worth to exceed $200, and, based upon the theory that he had tuberculosis, that he was not even worth that sum. The defendant does not seem to have made the claim during the trial that his death was caused by tuberculosis, but seems to have relied upon the evidence touching that question for the purpose of reducing the plaintiffs’ damages. The jury was fully justified in returning the special finding that the bull did not have tuberculosis at the time of his death: The most that can be claimed for the- defendant’s evidence on that question is that, some five years before that, the bull may have been afflicted with the disease; but the defendant’s own expert, who made a post mortem examination of the bull, testified ■ that, while in his judgment the bull had at one time been afflicted with tuberculosis, he was not at all sure that the disease was still in his blood. He testified that the .nodules that he found when he made the post mortem examination, and which indicated tuberculosis, were encysted, so that the circulation was not and could not be affected thereby. So that, whatever the bull’s condition may have been five years before the post mortem examination, it was practically conclusively shown that there was no such diseased condition at the time in question. Furthermore, an expert veterinary surgeon called by the plaintiffs,- who had also made a post mortem examination of the bull, testified that no indications of tuberculosis were present, and that in his judgment the bull had never been afflicted therewith; and, still further, there is no very satisfactory evidence that the bull had been so afflicted five years before. Taking all of the evidence together, therefore, the jury could not well have found otherwise than that the bull was not afflicted with tuberculosis at the time of his death. The evidence as to the value of the bull was amply sufficient to support the finding of the jury, and the verdict should not be disturbed.

2.Newtrial: misconduct of juror. The only other question diseussed by counsel for appellant is the alleged misconduct of one of the jurors after the case had been submitted. The showing as to the alleged misconduct is to the effect that, after the jury had retired for deliberation, the J J . . . ,' juror Toney, m discussing the case with the other jurors, referred to some minor difficulties that he had had with the railroad company. It appears from the record, however, that what he said in the jury room was practically a repetition of what he had stated to the attorneys and the court in his voir dire examination as to his qualification as a juror, which was to the effect that he had theretofore had some trouble with the railroad company over the loss of some straw or hay by fire, but that it had been fairly and satisfactorily adjusted. He further stated that he had had a calf killed or injured on the railroad, but that he made no claim for it, because he did not consider the railroad company in any manner responsible for the loss. In the jury room the only additional statement made by him was to the effect that some of the section men on the railroad sometimes blocked a private crossing with a handcar, but that he did not blame the company for that. It appears from Toney’s affidavit that the statements made by him in the jury room were not hostile to the railroad company, and that he had no prejudice against the company. We see nothing in the ground of the motion for a new trial which would have justified the trial court in setting aside the verdict on account thereof, or which would warrant a reversal at our hands.

The record in this case is unduly voluminous, but nevertheless we have given it the care which the interests of the parties require, and reach the conclusion that the judgment should be sustained.

3. Cost of additional abstract: taxation. The appellant submitted with the ease a motion to strike the appellees’ additional abstract, because it was not filed in time. The motion is overruled; but, as the additional abstract consists almost entirely of testimony in the form of questions and answers, for which there is no justification at all in this case, we conclude that the plaintiff should be taxed with the cost of printing sixty pages of the ninety-two pages of said abstract, and it is so ordered. The judgment is affirmed.