20 Iowa 188 | Iowa | 1866
I. The act of April 8, 1862, chapter 169, section 6, only makes it incumbent on the company to make proper cattle guards on the road where it “enters or leaves improved or fenced land,” and to construct good, sufficient and safe crossings “ where the road crosses any public highway.” The next section makes the company liable for all injuries sustained by reason of a neglect of refusal to comply with the provisions of the preceding ones. There is certainly nothing in these sections requiring the company to make cattle guards at a private crossing. And in" the" absence of such requirement, the company is not bound to make the same. Of course the company might erect these guards at private as well as public crossings; and the failure to do so might,. under some circumstances, be evidence of negligence or want of due care in the duty of so constructing tbe road as to exclude stock from the track. But the right to do it is very different from the duty, and especially when the latter is based upon the language of the statute. We hold, therefore, that the failure by the company to erect cattle guards at a private way does not
The case of the Great Western Railroad Company v. Helm, 27 Ill., 198, is very briefly reported, and yet it is there held that in order to excuse the company, it must be without fault in relation to leaving down or open the bars or gate at the farm crossing. In such cases the company is held to more than the least care, and as a consequence is liable for less than gross negligence. If the road is fenced and so kept, or if it should be down or open without fault on the part of the company, then as stock on the track would be there without right or as trespassers, the company would only be liable for gross negligence. The doctrine, as laid down in Alger v. Mississippi & Missouri Railroad Company, 10 Iowa, 268, is, that when the road is properly fenced the company is liable for gross negligence. But to apply this rule in measuring the company’s liability, the road must not only be fenced but kept so. And if not so kept because of the company’s want of care or negligence, it would be liable for less than gross negligence.
The case of the Indianapolis, Pittsburg & Cleveland Company v. Shimer, 17 Ind., 295, differs from this in the very essential fact that the stock belonging to the tenant of the land owner passed on to the track by reason of his own negligence to' maintain bars erected by the owner for his own convenience, and used by the tenant with the consent of the company.
The case of .the Terra Haute & Wabash Railroad Co. v. Fowler, 22 Ind., 316, does not conflict with the views above expressed, for there the fence was thrown down by third persons without the authority or knowledge of the company. The company exercised reasonable care and diligence, and the cattle strayed upon the track before the company had notice of the injury to the fence.
The only remaining case cited by appellant’s counsel, is
Affirmed.