47 Iowa 76 | Iowa | 1877
Under the statute (Code, section 1289) railroad corporations
The statute in force when plaintiff’s cause of action accrued provides that “ when any pei’son owns land on both sides of any railroad, the corporation owning such railroad shall, when required so to do, make and keep in good repair one cause-way, or other adequate means of ci’ossing the same.” Rev., § 1329. Was a railroad company authorized to maintain a fence with a gate at a crossing provided for by this statute?
These private crossings.are in the nature of private ways; gates are not inconsistent with their use, and the interest of all concerned requires that they be maintained. Cates are not required or permitted at the crossing of highways, because the convenience of the public forbids their use; at such crossings railroad corporations have no right to fence. They have a right to fence at private crossings because it is not in conflict with the convenience of the public, or the rights of the land ownei’, and the safety of the property of the adjoining proprietors and of the corporations themselves demand it. We conclude, therefore, that railroad corporations had a right to construct fences at pi’ivate crossings under the statutes existing when plaintiff’s cause of action accrued. But the fence at the crossing must be constructed with a gate, for without it the road would not be practically fenced if an opening be left for the crossing. The fence with such openings without a gate would not protect stock and trains of the l’oad, but increase danger to each. But the law, as we have seen, authorizes the railroad companies to fence at a pi’ivate crossing. This can be done in no other way than by the construction of gates.
V. It is argued that the verdict is in conflict with the evidence; that the fact of the gate being opened by the wind or by the horses was mere theory or supposition, and was not established by the evidence. Testimony was introduced tending to show that the gate could be, and had been, opened in that way. This evidence was introduced, with other testimony, to show the insufficiency of the fastenings of the gate. The gate was found open after the horses were hilled. The jury were required to determine whether the gate was sufficient. They considered the testimony before them in regard to its fastenings. Independent of the evidence just stated, other facts, as the manner of the construction of the fastenings, etc., were in evidence. If the structure of the fastenings appeared insufficient, and in addition thereto it was shown that the wind had blown the gate open, and horses had opened it, the jury were authorized to conclude that the fastenings were insufficient. The issue determined by the jury involved not the manner in which the gate was opened, but the sufficiency óf its fastenings. In our opinion they were authorized to find them insufficient. The law will regard insufficient fastenings as no fastenings; a gate without fastenings, as no gate, and a fence with agateway and without a gate, as no fence. ■ A find
The foregoing discussion disposes of all questions discussed by defendant’s counsel; others must be regarded as waived.
Affirmed.