Kingsbury v. Chicago, Milwaukee & St. Paul Railway Co.

104 Iowa 63 | Iowa | 1897

Granger, J.

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3 I. The petition alleged a failure to fence the right of way at a point where defendant had a right to fence, and also negligence in the operation of defendant’s train, as the cause of the injury. The answer is a -denial. The court gave the case to the jury only on the question of the neglect to fence the right of way. We do not understand appellant to 'claim- but that defendant had the right to fence its right of way at the point where the horses came onto it, — that is, between the points east and west of the coal land; but its claim is that, because of the mutual interests of the parties:, the defendant was excused from keeping a fence on that part of its right of way. It is not claimed that plaintiff ever made any agreement to that effect. If he has no right now to insist that the company should maintain a fence at the place in controversy, or -be liable for a neglect to do so, it must be because of his acts in leasing the land for mining purposes, iand fencing around it as he did. The legal effects of the -acts, if sufficient as a defense, would be an estoppel, which is not pleaded, and it must be before advantage could be taken of it. Glenn v. Jeffrey, 75 Iowa, 20. The rule is familiar. The issues under a general denial, presented simply the question, had the company the right to fence its right of way at the point in question? not, has it a legal excuse for not so doing? The latter, if it -should be that, because of the acts of plaintiff, or the relationlship of the parties arising from plaintiff’s acts, or the mutual interests of the parties growing out of the coal-mining interests, it was not bound to fence; would be an affirmative defense, to be pleaded as such, and does not arise on a denial, as in this. case. We take it that the court below took this view of the issues, for it denied the admission of evidence on the theory of an affirmative defense, and submitted the case on the •theory alone of the defendant’s liability if it had neglected to build or maintain a fence along its right of way at the point in question, and the horses went onto the right of way, and were killed in consequence of it. It told the jury that if there had been such neglect, and the horses were so killed, there should be a recovery. ,We think the rule thus stated is the correct one under the issues. Thus understood, the facts to warrant a recovery were without dispute so far as the acts of the defendant wepe involved conlcerning the fence. It was simply a question if the horses were killed in conse'quence of the failure to maintain the fence, and the amount of damage. It is said in .argument that the company could not keep a fence along the right of way at this place without making a cattle guard on1 the 'spur ■track. That, of course, would involve expense, but it would not change the right of defendant to maintain the fence. The case turns on the right to maintain the fence and the failure to do so. If difficulties or costs in so doing would be ian excuse in law, it would, as before-stated», be a matter of affirmative defense to be pleaded. Some -assignments are argued on the ruling as to th;e admission of evidence. Such rulings were in line with the court’s theory that the claim- of mutual interests or understandings, as a defense, was not involved, which we hold to. be correct. The court said to the jury that the fence built by plaintiff around the leased land was not a right of way fence, and the court was clearly right. The undisputed facts show it to be a fence built by plaintiff from the right of way line, on the east of the coal land to the same line on the west, inclosing a piece of plaintiff’s land that he had leased. It could only be treated as a right of way fence by virtue of some agreement, expressed or implied., to that effect; and, as we have said, no such issue is presented. The court, however, offered defendant the right to show that the fence built by the plaintiff was, by arrangement, to be 'taken and adopted in lieu of a right of way ¡fence; but the offer was disregarded. Bond v. Railroad Co., 100 Ind. 301, and some other cases are cited. None of them are against onr conclusion here. This case turns on a question of pleadings. Those deal with issues presented.

4 II. A question is made as to- the sufficiency of the evidence to show that the horses went onto, the right of way where there was no fence. In this respect we experience a difficulty because of what we have said as to the defective plat to. which the testimony refers, and, without the reference letter, figure, or mark, the evidence is in some respects obscure. A witness refers to a dotted line on the plat as indicating the p oint at which it is thought the horses went onto the right of way. There is no such dotted line on the plat before us. The only dotted line is that indicating the railway track. It does, however, appear that there were indications that the horses went from the coal land onto the right of way, becanse of tracks to show that fact. Some cases cited, holding the evidence insufficient to show that stock went onto the track at the point where no fence was kept, are not like this in their facts, and do not control it. We think the evidente in this respect is such that the question was one for the jury. The judgment in each case will stand affirmed.