Fernow v. Dubuque & Southwestern Railroad

22 Iowa 528 | Iowa | 1867

Wright, J.

1. Railroad: injury to swine. In the first place, plaintiff’s hogs were on his own premises. He had a fence,,not alone such as required by

TJpon these facts, our opinion is, that the court below should have found for plaintiff. the vote and the statute (Bev., SS 15, 45V but . v 7 00 ' n one fully answering the general statute defining a lawful fence. In other words, his lot was so inclosed that his hogs could not escape or run at large, save through and over defendant’s track; but this track, by the terms of the deed granting the right of way, the company were to fence. Treating the company, therefore, as an adjoining proprietor, this duty, by the very terms of the grant, to say nothing of the general law, devolved upon it, and not upon plaintiff.

Now, if the plaintiff’s hogs had escaped from his land and been killed while on the track at another and different place, a different question might arise. But when they are properly within the inclosure of the owner, and pass to the track in no manner fenced, a track built over a ■^**'»*" right of way, granted upon condition that the road should*^ K V-- • ’ be fenced by the company, our opinion is, in the absence of negligence, or the like, on plaintiff’s part, that he may recover for the loss.

2. _ local regulation against swine at large. It is urged, however, that if the company had fenced, there was no obligation to build one to turn swine or sheep, and that as these hogs, not being propei'ty con:&ne(l; would or might have still passed ori to the track, the failure to fence placed plaintiff in no worse condition, and, therefore, he should not recover.

To this we answer, that it by no means follows that a compliance with the general law, might not have afforded some protection to plaintiff’s stock. But, however this may be, our opinion is that this local regulation does not apply to a fence aloug the track of a railway. The law of 1862 (p. 198, § 6, ch. ) contemplates a fence adequate to keep stock from the track. The legislature, fully cpnscious of the rapid movement of the rolling stock on these roads, the danger to property when passing on or along the same; knowing, too, that, in almost all parts of the State, cattle, swine and sheep are allowed to run at large, had in view a fence as defined by the general law. This is clearly so, if the company would avoid liability as to stock (hogs or swine) rightfully within the owner’s in closure, and passing from thence directly to the track. There may be some doubt, if the swine or sheep are improperly at large and are injured, either when there is no fence, or one not complying with the local regulation. But, as to such a case, we intimate no positive opinion, confining ourselves for the present to the one before us.

3. Practice: bill of exceptions. Entertaining these views it follows that the judgment below should be reversed. Before closing, however, we remark that the appellee is correct in his claim that the bill of exceptions should have been, brought to this court by copy and not in its original form. It is only in some exceptional cases, or when it becomes necessary to see the original, that it should be sent to this court, and if the objection had been made by motion or before the case was submitted, the proper rule would have issued. Raised, however, for the first time in the printed argument, the objection, being one not fatal to the appeal, working at most a continuance to obtain a corrected transcript, conceiving, in their absence, that counsel preferred an early decision upon the merits, we have waived a compliance with the rule, satisfied, as we are, that in this case there was no intention to evade it.

Reversed.