37 Iowa 344 | Iowa | 1873
The substance of this count of the answer is, that the killing of the plaintiff’s cow is admitted; but defendant claims that because its train killed the cow while running and operating the same on the track of the Davenport and St. Paul railroad, under a lease from said company, by the terms of which the Davenport and St. Paul Railroad Company was required to make and keep up all repairs, etc., and defendant’s trains were run under a time-table made and directed by that company, it is not liable.
In Stephens v. The Davenport and St. Paul Railroad Co., April term, 1873, which was an action to recover of the defendant for stock killed by the defendant in this case, while running its trains on the railroad track of the Davenport and St. Paul Company, under a lease, it was held that a railroad company, which has constructed a railroad and is actually operating it, is not liable for injuries to stock caused by another
This holding would seem to be decisive of this case, but appellants’ counsel claims that this is unlike the case of Stephens v. Davenport and St. Paul Railroad Co. in this, that in that case it was “ admitted that the railroad was used and operated by both companies, each having its own time-table, and the right to use and operate the same, and to run any and all trains thereon, and that the lessees had the right, and were required to fence said railroad; ” whereas, in this case, it is “ admitted that the Davenport and St. Paul Railroad Company owned, operated, managed and eontroled the road; had the exclusive charge and control of making all renewals and repairs, and of constructing and maintaining fences,” etc.
In the case above cited, the fact that the lessee had the right, and was required to fence the road, and run its trains upon its own time-table, did not enter into the decision of the question before the court. The decision was the result of the proper interpretation of section 6, of chapter 169, Laws of 1862, and of section 1, of chapter 79, Laws of 1868. The principle of the decision is, that the particular company causing the injury by the operation of its trains on the road, whether it be the owner or lessee thereof, is the party held liable for such injury. Mr. Justice Cole, in delivering the opinion, says, note carefully the language used : “Any railroad company hereafter nmrnmg or operat/i/ng its road. ” Why limit the liability to those only which-run and operate their roads, if they are to be liable for acts or injuries not connected with such nmning and operating ? But further, they are made liable for the value of the property “so injured.” How injured ? Certainly it is not “ by reason of the want of such fences,” for that does not apply to the way or manner of the injury; it is but the occasion. The cause of injury, or the
It is insisted, however, by appellant’s counsel, that defendant “ had no right to fence; the owners had reserved the right to do so.” The presumption of negligence, created by the statute, so as to impose an absolute liability for stock injured by a railroad company, or a lessee thereof, attaches to the company or person whose train does the injury, at any point where the road is not fenced, and where it is lawful to fence it. See. 6, chap. 169, Laws of 1862. It is lawful, and railroad companies have the right, to fence their roads, and their absolute liability attaches for stock killed or injured at any point on the line of their road where the same is not fenced, except at crossings of streets and highways, and on depot grounds. Davis v. Burlington & Mo. River R. Co., 26 Iowa, 549; Rogers v. Ch. & N. W. Ry. Co., id. 558; Durand v. The Same, id. 559; Himman v. The Ch. R. I. & P. R. Co., 28 id. 491; Swift v. The North Mo. R. Co., 29 id. 243 ; Spence v. The C. & N. W. Ry. Co., 25 id. 139 ; Stewart v. The Same, 28 id. 282 ; Andre v. The Same, 30 id. 201.
Section 1 of chapter 79, Laws of 1868, imposes the same liabilty upon the lessee of a railroad for killing or injuring stock, by the running of its trains thereon, as is imposed by chapter 169, Laws of 1862, upon railroad companies who own and operate their roads. Stephens v. Dav. & St. Paul R. Co., supra. The obligation to fence the road rests upon the lessee, by the statute, as much as upon the lessor, and if the former runs and operates the road without having it fenced at all points where it is lawful to fence it, the same absolute liability attaches to the lessee as to a company owning and operating
II. Again, it is urged that the fact that the time-table was made by the Davenport and St. Paul Company, and that defendant’s trains were run and operated in subordination thereto, therefore, the Davenport and St. Paul Company was operating the road in part by means of defendant’s trains. The division of the answer demurred to clearly shows that the train which caused the injury belonged to, and was being run and operated by defendant on a portion of the track of the leased road. There is no averment to the effect that the Davenport and St. Paul Pailroad Company had any interest in the running of the trains of its lessee, or that it had any control over them. The mere fact that the defendant run and operated its trains in conformity with a time-table made by its lessor who was also running its trains on the same road, does not in any sense
The allegations of the petition in this respect are, “ that defendant has been duly notified of the killing of said cow, and payment thereof duly demanded, and that said defendant has neglected and refused to pay for said cow.”
It maybe^eonceded that these allegations are not sufficiently specific; that they would have been so held on a motion for a more specific statement in respect to the notice, etc., but no such motion was made, and this general form of statement is not ground of demurrer.
If defendant had made a motion for a more specific statement and the same had been overruled, it would have waived the objections made thereby by answering. Rea v. Flathers, 31 Iowa, 545; Benedict v. Hunt, 32 id. 27. The waiver is at least as clear when it has failed entirely to make the motion or raise any objection until after answering the petition.
The allegation is that the defendant was duly notified. In this statement it is implied that such notice, and for such a length of time as the law requires, had been given to the defendant. As before remarked, this statement may be conceded to be faulty if objected to in proper time and manner, but it is too late to do so for the first time after judgment on a demurrer to the answer.
Affirmed.