This is a controversy between two railway companies, and the suit seems to be in the nature of a double action, each seeking to recover damages against the other; the plaintiff demanding judgment against the defendant for the sum of $1,619.76 and interest as damages, and the defendant demanding judgment against the plaintiff for $2,093.77 and interest as damages. The amount of damages is not contested.
It is the right of each party to recover at all that is in controversy.
The lines of the respective parties cross each other at right angles between the stations called Taopi and Adams, in this state. The plaintiff alleges in its complaint “that on the 29th day of October, A. D. 1891, a passenger train of said plaintiff, under the care and control of its servants and agents, was passing over the said crossing, in a northerly direction, and the said agents and servants of said plaintiff in charge and control of said train were exercising due care and control of said train when the defendant negligently and carelessly ran its certain freight train into and upon said passenger train of plaintiff, which was then and there lawfully and right*409fully upon said crossing, so that the two trains collided, and thereby wrecked and greatly damaged the engine and baggage car belonging to and attached to the train of said plaintiff, and tore up and damaged the track, and roadbed of said plaintiff; that the collision of said trains was caused solely by the carelessness and negligence of the defendant and its employés, agents, and servants.”
In its answer the defendant denies these allegations of the plaintiff, and, in substantially the same language, alleges a counterclaim against plaintiff, charging that while defendant’s freight train was passing over said crossing the plaintiff négligently and carelessly ran its passenger train into and upon said freight train of the defendant, and caused the damage and injury of which it complains. Upon the trial the plaintiff recovered a verdict against the defendant for the sum of $1,780.38.
There are no material or difficult questions of law in the case.
That there was gross negligence on the part of the plaintiff or defendant is very evident, and such neglig'ence resulted, not only in damage to the property of each party, but in the death of an employé of defendant and that of a young man who was riding on the plaintiff’s car, although not a passenger.
At the time of the collision of the trains there existed a contract between the parties, whereby it was agreed that, in using the crossing where the two trains collided, the passenger trains of each party should have preference over the freight trains of the other party. The éollision was between the passenger train of the plaintiff and the freight train of the defendant. The evidence related principally to the management of the respective trains, and in many respects it was contradictory. There is no ground for the contention of the appellant that the verdict is not sustained by the evidence. A careful examination of it leads to the opinion that the verdict was fully warranted b.v the evidence. And readme: the evidence in connection with the charge of the court, and its refusal to give certain requests asked by the defendant, we find no errors of law.
The order denying the motion for a new trial is affirmed.
(Opinion published 57 N. W. Rep. 943.)