87 Iowa 276 | Iowa | 1893
The evidence shows that in the latter part of April, 1890, a colt owned by the plaintiff was killed on or near a road crossing; the plaintiff contending that it was killed on the railroad right of way a few feet west of the crossing, while the defendant contends that it was killed on the crossing, where it had no right to fence, and thrown by the engine onto the right of way where it was found.
The part of the south half of the northwest quarter of the section south of the right of way fence is inclosed with fences, and is subdivided into two fields by a fence which extends from the right of way fence southward to the road fence at a point about equidistant from the west line and from the center of the section. At the time of the accident, there was a gap in the fence on the west side of the road at its junction with the right of way fence near the crossing; there was a gap in the partition fence described at its junction with the road fence, and an open gate in the road fence near that gap. The east one of the two. fields south of the right of way had been cultivated, and contained no grass. The west field was a pasture in which the colt had been kept with its dam the previous season. In the northwest part of that field was a pond of water. There was evidence tending to show that the fence on the west side of the road at the crossing was defective at the time of the accident, and that the right of way fence in the west field, especially where it crossed the pond, was defective, and in such condition' that the colt could readily have gone through it and onto the right of way. Although there was some attempt on the part of the plaintiff to show that the fence of the defendant on the west side of the crossing and south of the cattle guard was defective, yet the evidence that the colt could have gone through it is slight, and but little reliance seems to be placed upon it. If the colt was killed on the right of way, it is probable that it went onto it from the west field, at or near the pond. When it left
It is said to be unreasonable to suppose that the colt would have gone onto the right of way by either of the routes described, and that it is more reasonable to suppose that the colt went onto the crossing from the first gap, and was there struck by the engine. That it could have done so is evident, and, if there is nothing in the evidence to make it more probable that the colt was killed on the inclosed part of the right of way than on the crossing, the plaintiff must fail under the rule announced in Asbach v. Chicago, B. & Q. Railway Co., 74 Iowa, 248, and followed in Wheelan v. Chicago, M. & St. P. Railway Co., 85 Iowa, 167, and other cases, to the effect that a theory can not be said to be. established by circumstantial evidence, unless it be the only one which can be fairly or reasonably deduced from the facts proved. It is not unreasonable, nor contrary to nature, to suppose that the colt went through the east field, or around by the road and through the gate into the pasture. Having gotten into the road it would be natural for it to pass along it to the barn lot, and from there along the road westward, which it had been accustomed to travel, through the gate to the pasture, with which it was familiar, and to the pond, at which, no doubt, it had been accustomed
The defendant, as supporting its theory, relies largely upon the following facts: The tracks of a colt were found' east of the cattle guard on the crossing, so made as to indicate that the animal which made them was going northward. No tracks were found west of the cattle guard. A report of an engineer, received by agreement as his evidence, which stated that at thirty minutes after eleven o’clock of the night of the accident his train, which was then going west, killed “one head of horned cattle” on a highway crossing two and one-half miles east of Buda, and that the animals came on the right-hand side just as the train reached the crossing. ‘The colt was found dead about forty-five feet west of the cattle guard and fifteen feet south of the railway track. It had been struck by the engine on the left side of the head and neck and on the left shoulder.
It is shown on behalf of the plaintiff that about the time of the, accident several colts were seen at the crossing, Lad that one of them belonged with a team which was used in plowing the field through which the colt of the plaintiff went to the first gap; that the wagon was left in the road near that gap, and the horses.were fed there; that the team came down the road from the north to work, and returned the same way; that the colt that was billed was but one year and ten days old; that the ground west of the cattle guard was of such a character that the colt would have made no tracks in walking over it; that the crossing
The defendant admits with much frankness that it did not assail the petition for the reason that, had it done so, the plaintiff would have amended, and avoided the objection. The failure to state that the colt was running at large when killed made the petition' demurrable. Section 2650 of the Code provides that “when any of the matters enumerated as grounds of demurrer do not appear on the face of the petition, the objection maybe taken by answer. If no such objection is taken it shall be deemed waived. If the facts
The evidence is sufficient to sustain the verdict, and the judgment of the district court is affirmed.