93 Iowa 561 | Iowa | 1895
I. Appellant’s first contention is that the verdict is contrary to the evidence. The evidence shows thla/t the horses entered the right of way
Appellant contends that the fence was in proper condition when repaired, was in that condition at four p. m. on Saturday, and, from these facts and its condition on Sunday morning, insists that it must have been opened by some trespasser after four p. m. Saturday, and therefore the defendant is not liable. There is a conflict in the evidence as to the manner in which the fence was repaired, and as to its condition on Sunday morning. We cannot say that the jury was not warranted in finding that the horses got upon the right of way because of the fence not being properly replaced.
■ Appellant also contends that there is no evidence that the horse which was found lying dead between the rails was killed by the train that passed over the road that night. It is true but one train passed that night; that it could not have passed over the dead horse; and that the engineer testifies that he hit but one horse. It is not impossible, however, 'that this horse was hit without either the engineer or fireman knowing it, and that it came again npou the track after the train passed. The topography of the right of way indicates that such was the fact, and there is no other apparent cause for the death of the horse than that it was struck by the train, and we think the jury was warranted in so finding.
II. Appellant complains of the refusal to give certain instructions asked. Thie substance of these instructions is that if George Vickers., who had care
Appellant asked an instruction, in effect, that, if the fence was repaired so as to be reasonably safe to turn stock, and was-in that condition between three and
III. Appellant’s remaining contention is that there is no foundation for the allowance of double damages because the notice on which the award was permitted
Our conclusion from the record is that the judgment of the. District Court should be affirmed.