The State v. Craig.

one George H. Smith signed the bond as surety. After that the signatures of the other sureties were obtained. No names at that time had been inserted in the body of the bond. Before they were inserted, and before the bond was approved or offered for approval, the name of Geo. H. Smith was erased by the drawing of two lines through it with purple ink. The erasure was made partly because Smith requested it, and partly because he refused to justify in an amount sufficiently large to be satisfactory to Craig. It does not appear that the sureties, who signed the bond before Smith did, had knowledge that Smith signed it until after the commencement of the action. None of the sureties consented to the erasure.

Before trial, upon the issue tendered by the sureties, they moved that the case be transferred to the equity docket, and tried as in equity. The motion does not appear to have been resisted, and was, by the court sustained. Trial having been had, judgment was rendered in favor of the defendant sureties, and the plaintiff appeals.

Smith McPherson, Attorney-general, and Galusha Parsons, for appellant.

Casey & Casey and W. H. Hobbs, for appellees.

1. PRACTICE: transfer to equity

docket.

It is true

ADAMS, J.-I. The appellant contends that the court erred in transferring the case to the equity docket. But it does not appear that the appellant demanded a jury trial or excepted to the ruling of the court. the appellant states in its abstract that it excepted, but no record entry is set out showing such exception; and` the appellees, by an amended abstract, set out a copy of the entry containing the ruling upon the motion which does not show any exception taken. The correctness of the amended abstract is not denied and must be taken as true.

For anything that appears, then, the trial of the case as an equitable action, was satisfactory to the appellant. If we

The State v. Craig.

were of the opinion, therefore, that the appellee's motion was improperly sustained, we should not be justified in reversing upon that ground.

bond alter

delivery:

sureties.

II. Coming, then, to the merits of the case, we will first consider the liability of the sureties whose signatures were 2. OFFICIAL obtained subsequently to that of Geo. H. Smith. ation before The appellant does not deny, and cannot properly deny, that the instrument signed by them was materially different from the instrument in suit. But the appellant contends that the instrument is the same now as when delivered, and that all the sureties must be deemed parties to the delivery, because Craig, who delivered the instrument, had been intrusted with it by them for that purpose; that they must be presumed, therefore, to have assented to the delivery of the instrument as it was at that time, and cannot now be heard to complain.

The true idea, however, we think is, at least so far as the subsequent sureties are concerned, that Craig was not authorized to deliver the instrument after it had been altered to their prejudice. There is nothing in the nature of the transaction that can justify us in supposing that they contemplated anything of that kind. In no proper sense, then, can they be deemed parties to the instrument sued on.

III. When we come to the question as to whether the sureties can be held who signed before Geo. H. Smith did, we find more difficulty. The bond with all the subsequent sureties released, differs in no material respect from the bond which the prior sureties signed.

If the understanding had been that the bond was to be delivered with their signatures and no one's else, and afterward, and before the delivery, the signature of another person had been obtained and erased, there would be much ground for contending that the instrument was precisely their contract. But the bond had been put in circulation for the purpose of obtaining such number of signatures as Craig deemed necessary, and such number as should be found necessary to

The State v. Craig.

secure its approval. We may assume that the sureties in question, signed with the understanding that that number would be obtained, and it could not have been understood that that number was to be obtained in such a way that a portion of them could not be held. Yet that is what Craig did. If we hold for the appellant, a liability would be imposed upon the sureties in question more burdensome than they had any reason to anticipate. Their real contract was expressed by the bond as it stood when all the signatures had been obtained, and before the erasure. That is the instrument which we must suppose that the sureties in question authorized Craig to deliver. When, afterward, he not only released Smith by erasure of his name, but released all who signed subsequently to him, and then delivered the bond, we must hold that he acted contrary to the understanding of the sureties in question and without authority. In our opinion, they are not liable. Our attention has been called to no adjudications which are precisely in point, but as tending to support the views which we have expressed, see Smith v. United States, 2 Wallace, 219; McCramer v. Thompson, 21 Iowa, 244; Dickerman v. Miner, 43 Iowa, 508.

We think that the judgment of the Circuit Court must be

VOL. LVIII-16

AFFIRMED.

58 212 100 211

Beatty v. The Central Iowa R. Co.

BEATTY V. THE CENTRAL IOWA R. Co.

1. Railroads: PROXIMITY TO HIGHWAYS: NEGLIGENCE. The mere fact that a railway is constructed and operated in close proximity to a highway, although it may render the use of the highway less safe, does not of itself constitute negligence on the part of the railway company. Such increase of danger is necessarily incident to and attendant upon this improved mode of transportation.

2.

3.

:

-: DAMAGES: CARE AND DILIGENCE. In an action for personal injuries, the proper inquiry is whether, in the light of all the existing circumstances, the company exercised reasonable care and diligence to guard against danger.

: HIGHWAY CROSSING. Under the facts found in this case, that portion of the highway from the point where the railroad track first infringes upon the highway, to the point of actual crossing, cannot be regarded as a part of the highway crossing.

Appeal from Poweshiek District Court.

SATURDAY, APRIL 22.

THE plaintiff as administratrix of the estate of John W. Beatty, deceased, brings this action to recover damages for the death of said John W. Beatty, occasioned by a train of cars operated by the receiver of the Central Railroad of Iowa. Under the direction of the court, the jury returned only a special verdict. Both parties filed a motion for judgment upon the special findings. The court overruled the plaintiff's motion for judgment, and sustained that of the defendant. The plaintiff appeals.

John F. Lacy and Redman and Carr, for appellant.

H. E. J. Boardman and A. C. Daly, for appellee.

DAY, J.-The jury returned the following special verdict: 1. Was the plaintiff's intestate killed at a point where the railroad crosses the public highway substantially as stated in the petition?

Ans. Yes.

Beatty v. The Central Iowa R. Co.

2. Was the railroad then operated and under the control of Morrill as receiver?

Ans. Yes.

3. How did the plaintiff's intestate come in collision with the engine?

Ans. He was carried there by an unmanageable horse. 4. Was the crossing and its immediate approaches in a suitable and safe condition?

Ans. It was.

5.

If you say the crossing was not in a suitable and safe condition, then it what particular was it lacking?

6. Does the railroad cross the highway on a level with it about the point of crossing or otherwise?

Ans. Nearly on a level.

7. How far north of the immediate crossing does the defendant's track or ground by it actually occupied first enter upon the ground of the highway?

Ans. About twenty rods.

8.

From the point where the railroad track first enters upon the highway south to the crossing could the railroad company reasonably have graded a track for wagons farther to the west on the highway?

Ans. Yes.

9.

Was the highway passable along its west line without such grading or preparing?

Ans. No.

10.

How far north of the immediate crossing is the point where the plaintiff's intestate mounted his horse to ride down

to the crossing?

Ans.

11.

About twenty rods.

At the place he mounted his horse did he have a view

of the railroad north?

Ans.

12.

No.

From the point where he came upon the highway south of the crossing was the railroad in plain view to the side of the road or was the view obstructed?