62 Iowa 518 | Iowa | 1883
The question we are called on to determine has been certified to us by the trial judge, and is in these
It is provided by statute that “any. corporation operating a railway that fails to fence the same against live-stock running at large, at all points where the right to fence exists, shall be liable to the owner of any stock injured or killed by reason of the want of such fence.” Code, § 1289..
If the statute is construed literally, railway corporations are liable if they fail to fence at any place, except where the line of the road crosses or encroaches on a highway. But in Davis v. B. & M. R. R. Co., 26 Iowa, 549, it was held that the statute should not be so construed, and it was further held in that case that the right to fence depot grounds did not exist. In Rogers v. C. & N. W. R. R. Co., 26 Iowa, 558, an instruction in these words: “that if the horse was killed in the town plat of Oxford, but not on the depot grounds or within the switches, and not on any street crossing, and the road was not fenced, their verdict should be for the plaintiff for double the value,” was held to be erroneous, because “in principle this case is on all fours” with the case first above cited. It is insisted by counsel for the appellant that this case is decisive of that at bar, but we think there are material differences between the two. In the case last cited, the horse got on the track at the “ Madison street crossing, ran west along the track one square to Yine street, and was then killed.” The question was whether, under the facts above stated, the instruction was correct?
The right to fence clearly did not exist at the place where the horse got on the track, and yet the liability of the defendant was made to depend on the fact that the road was not fenced within the limits of the town, provided the horse was not killed on the depot ground, or within the switches, and not on any street crossing. As applied to the facts in that case, the
Counsel for the appellant insist that the statute has no reference to incorporated towns, and that it is inoperative except where lands are used for agricultural purposes, where cattle would properly be kept and allowed to run at large. And it is assumed, without evidence to warrant the assumption, we think, that the lands owned by the plaintiff are not used for such purposes. That lands within the limits of air incorporated town may be so used we think is exceedingly probable. But whether this is so or not is, perhaps, not material, because the burden is on the defendant to affirmatively show that the court below erred, and if, therefore, the question to be determined depends upon the fact whether the lands of the plaintiff were not used for agricultural purposes, such fact should either appear in the question propounded to us, or otherwise sufficently appear from the record.
In addition to the question propounded by the court, the record contains the facts found by the justice. Therefrom we ascertain that the plaintiff was the owner of between five and six acres of ground, which abuts on the defendant’s right of way; that land in the locality of plaintiff’s, and including his, had not been platted as lots and blocks, but consisted of small tracts of from one and one-fourth to eleven acres in extent; that corn was planted on the plaintiff’s land the year in which the calf was killed.
We think, under the circumstances above stated — and it must be assumed that the question propounded to us is asked with reference thereto — that the foregoing question must be answered in the affirmative. Indeed, we go a step further,
Affirmed.
