121 Iowa 340 | Iowa | 1903
Plaintiff introduced evidence tending to show that the road along which plaintiff was riding was a legally established highway, and defendant in various ■ways interposed the objection that the evidence introduced, consisting of the records of the board of supervisors with reference to the establishment of this highway,, was
The action of the court in directing a verdict for defendant was not based on any specific ground, but if the plaintiff, under the issues and the evidence, was, as matter ct law, not entitled to recover, then the court committed no error, and the judgment should be affirmed. We direct our attention, therefore, to the ultimate issues presented to the court for determination, and find that the wrong compained of on" the part of the defendant was maintaining his fence along and in the highway, eleven feet from the true boundary line between his premises and such highway; that the injury alleged to have been sustained by plaintiff was the result of this wrongful act of defendant; and that plaintiff was free from negligence. The evidence shows that the traveled track in the highway, if there were a highway, was about six feet from defendant’s fence; that, as plaintiff rode his horse along this track after dark, the horse shied or stumbled towards the fence, which was of barbed wire, and forced plaintiff’s leg against the fence, with the result that the leg was badly cut and injured. It occurs to us that the only question we need consider is whether, under the issues presented, this evidence tended to show plaintiff entitled to recover damages as against defendant.
It is very doubtful whether there is any competent evidence that defendant’s fence was in the highway. No
The controlling question, as it seems to us, is whether there was any proximate connection between the alleged wrongful act of defendant in having his fence in the highway and the injury received by plaintiff. It appears from, plaintiff’s testimony, that he was riding in the traveled track; that he could see the posts of the fence; that it was quite dark at the time; and that, without any volition on his part, his horse.carried him out of the traveled track, and against the fence.. It does not appear that plaintiff had any knowledge as to where the true line of the, highway was, or that he was directing his course with reference to that line, independently of the fence which-defendant had constructed, nor that the fence had been newly constructed, so as to encroach on the highway as previously used. Plaintiff knew where the traveled track was, and knew where the fence was, and was not misled nor surprised by reason of any act of the defendant with reference to the location and maintenance of the fence. To illustrate the view we take, we may suppose a case which, as we think, involves exactly the same legal proposition as the one before us. If the traveled track had been near the other side of the highway, which, as legally established, must [lave been sixty-six feet wide (and all the evidence before us on the subject is to the effect that it was of this width), and a person traveling along such