was but one train per day running each way; the return train going south in the morning.

In the examination of the question presented the contributory negligence of defendant in error-it must not be forgotten that all questions of fact were for the jury to determine, and that where the testimony was conflicting, it was for them to decide as to which of the witnesses were entitled to belief. In addition to the foregoing statement of facts, there was sufficient evidence to support the finding that the train was running at an unusually high rate of speed, and that no signals were given of its approach to the crossing; that when defendant in error approached the track, before turning parallel with it, he looked along the track and saw no train, and that he again looked when about half way from there to the crossing, with the same results; that the road upon which he was driving was very rough and frozen hard, so that he could not or did not hear the approach of the train as it came up in his rear, no other noise being made by it than the exhaust of steam and that caused by the running of the train, neither bell nor whistle being used, and that he had no knowledge of its presence until he was on the track and saw it not more than 50 feet away bearing down upon him at what some of the witnesses testified to be double its usual rate of speed. There is no question as to the fact of the accident. One of the horses was thrown upon the right, the other to the left, side of the engine. The wagon was thrown from the track with great force, and the sound of the collision was heard a half mile away, yet the engineer testified that he neither saw nor heard anything of the accident, and knew nothing of it until the next day.

If it be true that the train was running at the rate of speed described by the witnesses through the village, and that no signal of any kind was given, the train being one hour and a half later than its usual and regular time, these facts would be proper to be considered by the jury in ascertaining whether the employes of plaintiff in error were negligent or not, the law requiring the signals to be given. Comp. St. 1885, p. 203, § 104. Upon the other hand, if the jury found that defendant in error had sufficient reason to believe the train had gone, that when he approached the railroad track he looked down the track and saw no train, and that this was repeated before trying to cross, with the same result, and that under all the circumstances he exercised that degree of care usually exercised by, and required of, reasonably prudent men, they would be justified in finding that he was guilty of no such negligence as would defeat his recovery. These questions of negligence were for the jury to decide, and we cannot conceive how, as matter of law, it can be said either that plaintiff in error was not, nor that defendant in error was, negligent. The first duty was upon plaintiff in error; a part of this was the compliance with a plain mandatory statute. Defendant in error had the right to expect this duty to be observed in case a train should pass at that time. Not that a failure to perform it would exonerate any fault of his, nor release him from the exercise of proper care, but that he might have the opportunity of knowing of the approach of the train. It is true that plaintiff in error had the right to expect due care of any one who might be near its track with a design to cross, but that would not justify it in running at the reckless rate of speed described by the witnesses against a high wind, and in violation of law. The degree of care required of a person who is about to cross a railroad track is such care as could be reasonably expected of an ordinarily prudent person under like circumstances, and this was a question for the jury to determine under all the circumstances of the case. This case seems to us to be peculiarly within the rule stated by the supreme court of the United States in Railroad Co. v. Stout, 17 Wall. 657, and approved in Railroad Co. v. Bailey, 11 Neb. 332, 9 N. W. Rep. 50, and in City of Lincoln v. Gillilan, 18 Neb. 115, 24 N. W. Rep. 444. See, also, upon this part of the case, Railway Co. v. Hutchinson, 11 N. E. Rep. 855; Railroad Co. v. Rudel, 100 Ill. 603;

Railroad Co. v. Troutman, 6 Amer. & Eng. Ry. Cas. 117; Smedis v. Railroad Co., 88 N. Y. 13; Railway Co. v. McLin, 82 Ind. 435, 452; Sherry v. Railroad Co., 10 N. E. Rep. 128. The verdict cannot, therefore, be molested as not being sustained by the evidence.

Objection is made to instruction numbered 10 given to the jury by the trial court, but as the question of its correctness was not presented to that court in the motion for a new trial, it cannot be considered here. Schrecken gast V. Ealy, 16 Neb. 510, 20 N. W. Rep. 510; Railroad Co. v. Walker, 17 Neb. 432, 23 N. W. Rep. 348.

The judgment of the district court is affirmed.

(The other judges concur.)

ILLINOIS CENT. R. Co. v. HAMILTON Co. and others.

(Supreme Court of Iowa. December 6, 1887.)

1. TAXATION-RAILROAD PROPERTY-WITHIN CITY LIMITS-LOCAL TAXES. Code Iowa, 22 1317-1322, provides for the valuation of railroad property by the executive council, and makes it the duty of such council to transmit to the county auditor of each county a statement showing the length of track in each county, etc., and the rate per mile of assessment. It is then made the duty of the board of supervisors to determine the length of the main track, and the assessed value of such railway lying in each city, township, or lesser taxing district in their county. Section 1322 provides that all such railway property shall be taxable upon said assessment at the same rates, by the same officers, and for the same purposes as the property of individuals within such counties, cities, etc. Chapter 10, tit. 4,2 4, provides that agricultural lands within city limits shall not be taxed for city or town purposes. Held, that the boards of supervisors do not assess the railroad property lying within their respective districts, but fix the proportion of the aggregate assessment made by the counsel which shall be subject to the local taxes of those districts, and the provisions of chapter 10, tit. 4, 4, do not apply to property of this character.

2. SAME-ROAD TAX IN ADDITION TO GENERAL TAX.

Acts 19th Gen. Assem. Iowa, c. 158, provides that property in a city not subject to taxes for general municipal purposes shall be liable to a road tax not exceeding five mills on the dollar. Code Iowa, 2 496, provides that for general municipal purposes the tax shall not exceed 10 mills on the dollar. A railroad company was taxed at the rate of seven mills on the dollar, for general purposes, and five mills on the dollar for road tax. Held, that as the road was liable for a general tax, the road tax was improperly levied.

Appeal from district court, Hamilton county.

Action in equity to restrain the collection of certain taxes levied on plaintiff's property by the authorities of Webster City. The district court sustained a demurrer to the petition, and plaintiff electing to stand on the demurrer, judgment was entered dismissing the petition. Plaintiff appealed. John F. Duncombe, for appellant. N. B. Hyatt, for appellee.

REED, J.

There is included within the corporate limits of Webster City a large amount of agricultural lands which are not subject to taxation for general city purposes. Plaintiff's railroad extends through the corporate limits of the city for about five miles. Only about one mile of the main track, however, lies within that portion of the territory which is subdivided into blocks and lots. Plaintiff was taxed for general city purposes on a valuation which was determined by multiplying the valuation per mile, as fixed by the executive council, upon the main track by the number of miles of track within the corporate limits. It denied that it was subject to taxation for city purposes in that portion of the track which is outside of the subdivided territory, and it paid a part of the tax which bears the same proportion to the whole amount thereof as the portion of the track within the subdivided territory bears to the number of miles within the corporate limits, and brought this action to restrain the collection of the remainder.

1. The provisions of statute governing the assessment of railroad property

for purposes of taxation and the levy of taxes thereon are contained in sections 1317-1322 of the Code. It is provided that the right of way, road-bed, bridges, culverts, rolling stock, station grounds, shops, buildings, and all other real and personal property exclusively used in the operation of the railway is to be ineluded in the assessment, which is made by the executive council. The valuation, however, is to be fixed at so much per mile of the main track, the amount being arrived at by dividing the sum of the values of all the items included in the assessment by the number of miles in the main track; and it is made the duty of the executive council to transmit to the county auditor of each county through which any railroad runs a statement showing the number of miles of track within his county, and the rate per mile at which the same is assessed. Section 1321 is as follows: "At the first meeting of the board of supervisors held after said statement is received by the county auditor, they shall make, and cause to be entered in the proper record, an order, stating and declaring the length of the main track, and the assessed value of such railway lying in each city, town, township, or lesser taxing district in their county through which said railway runs, as fixed by the executive council, which shall constitute the taxable value of said property for taxable purposes, and the taxes on said property when collected by the county treasurer shall be paid over to the persons or corporations entitled thereto as other taxes, and the county auditor shall transmit a copy of said order to the city council or trustees of such city, incorporated town, or township." And section 1322 provides that "such railway property shall be taxable upon said assessment at the same rates, by the same officers, and for the same purposes as the property of individuals within such counties, cities, towns, townships, and lesser taxing districts."

The effect of these provisions is plain. By them the valuation upon which the railroad company is to be taxed within any city or other corporation or taxing district is to be determined from the number of miles of main track within the corporation or district, as determined by the order of the board of supervisors, and the valuation per mile, as fixed by the executive council. No other basis is provided for determining the valuation of the property for purposes of taxation. The scheme or plan of the statute is to treat the property, although it may consist of many distinct parcels or tracts of real estate, and many articles of personalty, as an entirety, and assess it as such; and as the owner is subject to taxation for local purposes, the values upon which -such taxes shall be levied are arrived at by taking for those purposes a proportion of the aggregate valuation corresponding with that which the property lying within the corporation or taxing district bears to the whole property assessed. The order of the board of supervisors determining the number of miles of track within the cities, incorporated towns, and taxing districts is not in any sense an assessment or valuation of those portions of the property; but its officers are to fix the proportion of the aggregate assessment or valuation made by the executive council, which shall be subject to the local taxes levied by the corporations or districts. The provisions of the statute exempting agricultural and horticultural lands lying within the limits of incorporated towns and cities from taxation for city purposes, have no application to property of this character. Nor does the case involve the grounds upon which it has been held that lands so situated could not be subjected to such taxation, which are that the lands are in no manner benefited or protected by the city government. See Morford v. Unger, 8 Iowa, 82. For, as we have seen, the statute does not provide for the assessment of outside property for taxation within the city, but establishes merely a rule by which may be determined the proportion of the aggregate assessment upon which the company shall be taxed for local purposes.

2. The tax levy amounted to 12 mills on the dollar, seven mills being levied for general city purposes, and five mills as a road or highway tax. The city, while it has power to levy a road tax upon property within its limits which is

not subject to taxation for general municipal purposes, (chapter 158, Acts 19th Gen. Assem.,) has no power to levy such tax upon property which is subject to taxation for general purposes, and 10 mills is the extent to which it may tax, for general purposes. Code, § 496. As plaintiff is subject to taxation for general purposes on the whole valuation, it is not liable for the road tax. The demurrer should therefore have been overruled as to the paragraphs of the petition in which relief is demanded against said road tax, and the judgment as to that tax will be reversed; but as to the tax for general purposes, it will be affirmed. The case will be remanded for a final judgment in the district court, or, if defendant so elects, it may answer as to the road tax. Reversed.

CALLENDER v. DRABELLE.

(Supreme Court of Iowa. December 6, 1887.)

1. SET-OFF AND COUNTER-CLAIM-BURDEN OF PROOF.

Defendant being sued on a note alleged payment and counter-claim. Held, that the burden of proof was on him to show all the facts necessary to determine the amount due on the counter-claim and a judgment for a greater amount than his proof shows must be reversed.

2. EVIDENCE-PAROL-TO SHOW ASSIGNMENT OF JUDGMENT-COLLATERAL SECURITY. Parol evidence is admissible to show that an assignment of a judgment, absolute in form, was intended merely as collateral security.

Appeal from district court, Des Moines county; CHAS. H. PHELPS, Judge. Action upon a promissory note. The cause was tried without a jury and judgment was rendered for defendant upon a counter-claim pleaded by him. Plaintiff now appeals.

Kelley & Cooper, for appellant. C. S. Poor, for appellee.

BECK, J. 1. The defendant in his answer admits the execution of the note, but as showing payment thereof, which he alleges, and as a counterclaim, he avers that in February, 1879, he was owner of a judgment against one Switzer for $290, which he assigned to one Lee to secure an indebtedness of defendant to him. The answer proceeds to state the defense pleaded therein, in the following language as set out in defendant's amended abstract: "About the date of the note in suit, and for the purpose of securing its payment, defendant gave plaintiff an order on Lee to be paid out of the proceeds of said judgment when the same should be collected, and Lee's claim satisfied, plaintiff well knowing that said judgment was assigned to said Lee only as security for said debt, and it was ample to secure both of said claims; that on or about the second day of February, 1883, plaintiff paid to said Lee the full amount of this defendant's debt to him, being one hundred and sixty-one dollars and sixty-five ($161.65) cents; the said Lee then assigned said judgment to plaintiff; that on or about the second day of March, 1883, plaintiff collected the entire balance of said judgment, being two hundred and eightyseven dollars and five ($287.05) cents, which not only paid the debts owing by defendant to Lee and the plaintiff, and discharged their liens on and interests in said judgment, but left a balance in the hands of plaintiff belonging to defendant of fifty-five ($55) dollars, which is defendant's property which plaintiff neglects and refuses to pay. The evidence shows that the Switzer judgment was rendered January 8, 1879, and drew interest at 10 per centum per annum, and that the note sued on was for $52.70 with 10 per centum interest and attorney's fees. It was executed May 28, 1879.

2. The defendant introduced evidence tending to show declarations or admissions of Lee, who at the time of the trial was dead, tending to show that he held the judgment under the assignment to him as collateral security for the sum owed to him by defendant. The evidence was objected to on the ground that it was not competent under Code, § 3639, being a personal trans

action with a deceased person, contemplated by that section. The evidence was admitted subject to decision upon the objection afterwards. The abstracts do not clearly show the rulings upon the objections, and it is not affirmatively shown that the evidence was considered in the decision of the case. We find it unnecessary to determine the question of the competency of the evidence for the reason that our conclusions are based upon matters not affected by this evidence.

3. The defendant insists that parol evidence was not competent to show that the assignment of the judgment to Lee, which was absolute in form, was intended as collateral security. But it is always competent to show by parol the precise interest which a person holds in property to which he has the absolute paper title. A deed may be shown by parol to be intended as a mortgage.

De

4. It may be assumed, without so deciding, that the evidence establishes that the judgment was held by Lee as collateral security. It is shown that it was assigned by Lee to plaintiff who paid $161.65 for it. He afterwards collected on the judgment $287.05, less attorney's fees, which probably could not have been less than $25. The evidence authorizes the conclusion that the sum paid by the plaintiff for the judgment was the sum which defendant owed Lee. Now if it be in a like manner assumed that the difference in these sums, $100.40, should be accounted for to defendant, it appears beyond a doubt that the judgment of the district court is largely excessive, and is for such excess wholly without the support of any evidence. Defendant received the money March 7, 1883; the judgment in this case was entered February 25, 1887. Interest added to the excess would swell it to about $124. fendant's note with interest at the date of the judgment amounted to not less than $98, leaving due defendant $26 instead of $64.65 as determined by the judgment of the district court. This conclusion is based upon facts which are established by the evidence beyond dispute except the amount paid by plaintiff to the attorney who recovered the judgment in question. It is shown that these fees were deducted from the sum collected on the judgment, $287. The attorneys held a lien therefor and had authority to deduct their fees from the sum collected by them. The burden was on defendant to show the amount due from plaintiff he was seeking to recover, and he was required to show the amount of money held by plaintiff to which he was entitled. was required to make proof of all facts necessary to be considered in order to determine the amount which he was entitled to recover.

Не

We determine no question in this case except that if defendant be entitled to recover at all the judgment is excessive, and for that reason it should be reversed.

STATE v. ARCHER.

(Supreme Court of Iowa. December 6, 1887.)

1. HOMICIDE-KILLING ADMITTED-INSTRUCTIONS.

In a trial for murder the witnesses, of whom defendant was one, concurred in the statement that he killed the deceased. The court in its charge said the killing was conceded. Held, that it was not error.

2. CRIMINAL PRACTICE-REFUSAL OF WITNESS TO TESTIFY AS TO EVIDENCE ON FORMER TRIAL STRIKING OUT TESTIMONY.

Thirty-four questions were propounded to a witness on cross-examination, as to her testimony in a former trial, which she refused to answer. The court refused to strike out her testimony, but instructed the jury that her demeanor on the stand should be considered. Held, it was not error, as her former contradictory testimony could have been proven, or the court asked to compel her to testify. 3. SAME-IMPEACHMENT OF WITNESS-GENERAL REPUTATION FOR TRUTH.

The state introduced testimony showing that defendant and his wife had made statements contradictory to their evidence. The defendant offered to prove their general reputation for truth. Held, that the offer was properly refused.

v.35N.w.no.3-16