90 Iowa 169 | Iowa | 1895
I. The petition charges the defendant-with negligence in running its' train, which struck defendant’s wagon and caused the injuries, on the-depot grounds in the city of Villisca, at a greater rate-of speed than eight miles per hour. It is averred that by reason thereof the accident happened, and that, plaintiff did not contribute thereto. It is also claimed, that defendant was guilty of negligence in the speed at-which it ran its train, regardless of the statutory negligence pleaded. The answer was a general denial. The-court, at the close of plaintiff’s testimony, and on defendant’s motion, directed the jury to return a verdict for defendant, which was done.
II. The first question raised for our consideration is as to whether defendant was guilty of statutory negligence in running its train at a greater rate of speed than eight miles an hour within the depot grounds of' defendant. There is no dispute as to the facts touching this matter. All the evidence showed that the-train, at the time of the accident, was running at a speed of from twenty-five to thirty-five miles an hour-upon depot grounds necessarily used by the company and the public. The statute relied upon by appellant.
"We think the provision in controversy has no relation to a case like that at bar. Before this speed-limit clause was inserted in this section, the section fully provided for liability for damages to live stock running at large, at all points where the company had a right to fence its right of way. This court had repeatedly held, after this original section was adopted, that railway companies were not required to fence where, in view of the public convenience, it would not be fit, proper, or suitable to do so. We need not cite the ■cases. They covered depot grounds. There was then no statutory provision whatever touching the liability of railway companies for damages to stock which might be injured while running at large at depot grounds, or ■other places where the necessities of the public in connection with the railway company were such as to prevent the latter from fencing its track. It was for the purpose of affording statutory relief in such cases that this speed-limit clause was inserted in this section. It is urged that the language used is general, and must,
III. As to negligence, other than statutory, it may be said that this court has frequently decided that no particular rate of speed can be said to be, per se, evidence of negligence, in the absence of statutory regulations. It may be considered in connection with other matters as showing negligence. McKonkey v. Railway Co., 40 Iowa, 205; Arts v. Railway Co., 44 Iowa, 284; Latty v. Railway Co., 38 Iowa, 250. In this case there is no evidence that the defendant was negligent in the rate of speed at which it ran its train. There is no •claim that the whistle was not sounded or bell rung, and no other facts which show that the rate of speed at which’ the train was running was, under all the circum