34 Iowa 337 | Iowa | 1872
The petition alleges that, on or about the 7th day of November, 1870, the defendant, while running its train of cars, by the mismanagement of its agents, ran its cars upon and hilled eight of plaintiff’s.hogs. That said hogs were, at the time of being hilled, hept on the premises of plaintiff, and adjoining the railroad track over which said train of cars ran. That defendant had no sufficient bars, nor sufficient fence at the place along the line of its railroad where said hogs escaped or entered upon defendant’s track, to prevent them from going thereon.
The plaintiff further alleges the serving of defendant with a written notice of the hilling of said hogs, the failure of defendant to pay therefor, and the due appraisal thereof as provided by law.
The action is brought under section 6, chapter 169, laws of 1862, as follows: “ Any railroad hereafter running or operating its road in this State, and failing to fence its road on either or both sides thereof, against live stock running at large, at all points where said road has the right to fence, shall be absolutely liable to the owner of any live stock injured,” etc.
Appellant contends that this statute must be construed as though the words “ legally ” or “ properly running at large ” were inserted. This point was decided adversely to the position of appellant in the case of Stewart v. The B. & M. R. R. Co., 32 Iowa, 561. In Spence v. Northwestern Railway Co., 25 id. 139, it is held that a railroad company is liable for swine killed upon its track while running at large, at a point where it has the right but neglects'to fence, although swine are prohibited from running at large by local regulation. In Fernow v. Dubuque & Southwestern Railway Co., 22 Iowa, 528, it is held that a railroad is liable, under the same circumstances, for swine killed that came upon the track from the inclosure of the owner; and that a local regulation, rendering a fence lawful
Appellant further claims that it does not appear that defendant had a right to fence where the injury was done. This right sufficiently appears from the allegation of the answer that a fence was, in fact, built at that place.
Affirmed.