136 Iowa 7 | Iowa | 1907
The evidence tends to show that the private crossing on the plaintiff’s farm was originally protected by a gate in the fence on the margin of the right of way, but the same had become badly rotted, warped, and dilapidated, and was difficult to open and close or to securely fasten. Nearly three months before the accident the gate was opened and left open, according to the plaintiff’s showing, until after the cattle were killed. It is also his claim that the foreman in charge of the railroad told him the gate need not be closed, and that a new one would soon be furnished; but whether this was or was not true, or .whether the foreman had authority to make such statement, we think it immaterial now to consider. Plaintiff’s cattle were placed in a pasture not bordering upon the right of way at this point, but on the night of the accident they broke
As to the first alternative, it is very clear under the evidence that the court could not say as matter of law that the gate sufficiently complied with the statutory requirement, or that when closed the fence of which it formed a part was a sufficient fence. There was evidence, as we have already noted, that the gate was, and for a long time had been, warped and broken, and was “ somewhat rotten.” The cleats on which it originally hung were both broken off, so that when closed it rested on the ground. To use the language of one witness, there were “ several hoards half rotted off. The whole of it was decayed.” Others say that, by reason of its weight and dilapidated .condition, 'it was difficult to properly open and close it. If the jury believed this testimony (as it had a right to do), it could properly find that the railroad track was not fenced as required by law, and therefore that plaintiff was entitled to recover, unless the injury to his property was chargeable to his own willful act.
This distinction has been frequently affirmed in our decisions. Nor instance, where swine enter upon an unfenced railroad track and are there killed, it is no defense to show that their owner allowed them to run at large, in violation of law. Spence v. Railroad Co., 25 Iowa, 142. We there said: “ This liability exists, regardless of the question of negligence. Indeed, the statute expressly declares that liability to eiist, unless the injury was occasioned by the willful act of the owner or his agent. If the plaintiff had driven his hog upon the track, or had permitted him to escape for the purpose of going upon the track, such acts, being willful, might well be held to have occasioned the injury, and therefore defeat a recovery. But there is no such showing. The only fact shown was that the hog was at large, contrary to the regulation of that county. This alone will not defeat the plaintiff’s right to recover.” This holding was reaffirmed in Krebs v. Railroad Co., 64 Iowa, 670, where we said that willfulness, in this connection, “ implies something more than mere negligence. It is
"We think, therefore, that if plaintiff, in leaving the gate open, had no intention or purpose thereby to permit his cattle to go upon the track or to expose them to the injury which they sustained, he cannot be said as a matter of law to have willfully occasioned the damage ■ for which he now seeks to recover, even though his act was negligent, and the accident might possibly not have occurred but for his said act. The inquiry whether a given act is willful or otherwise, depending, as it ordinarily does, upon inferences to be drawn from all the circumstances attending and characterizing such act, is peculiarly a matter for the consideration of the jury, and it can seldom, if ever, be determined by the court, as a matter of law. In our judgment, the question of whether the gate when closed afforded a fence substantially such as the law requires, and, if not, then the further question whether plaintiff by his own willful act •occasioned the injury to his cattle, were matters of fact on which he was entitled to go to the jury, and that the per
A new trial must be granted, and the judgment appealed from is therefore reversed.