134 Iowa 736 | Iowa | 1907
The defendant’s railroad passes through the farm of thirty-eight acres belonging to plaintiff’s mother from the northwest to the southeast, leaving about four acres on the south side of the right of way. There is a cut where it enters at the northwest, so that the south side is about fifteen feet above the level, and the north not so high. The road is graded up from that point toward the southeast to a bridge or tressel about three hundred feet distant. This grade is about fifteen feet above the general surface. A creek runs along the north side of the right of way and parallel with it. The right of way fence north of the track for a distance of two or three hundred feet had been washed out about a year before, and had not been repaired or replaced. In the morning of April 12, 1905, plaintiff turned a mare and colt into his pasture north of the railroad, and, after a while, noticed that they were on the right of way. The evidence on the part of plaintiff tended to show that when he called to the horses they threw up their heads, looked towards him, and then whirled and went on the railroad track toward the east; that immediately thereafter a hand car came along the track from the northwest, with several men on it, holloing, and did not stop until the mare ran into the bridge; that the horses were running their best, and the hand car followed about as fast to a point about sixty yards from said bridge. The witnesses agree that the horses could have passed from the cut northwest of the bridge to another southeast of it without going on the track; but, while plaintiff testified that the grade extended so near the fence that an animal could hardly get through, and that the north side was strewn with
The inquiry is that of sequence, not of foresight, and is directed to the determination of whether the damages to stock as proven are the proximate result of the failure to fence in connection with the operation of the road. The rule deduced in Young’s case makes this clear, for it was there announced thus: “ When, then, may it be said that an animal is injured by reason of a want of a fence within the meaning of the statute? It is when the want of a fence in connection with the acts of the defendant is the proximate cause of the injury.” This is referred to with approval in Ashbach v. Railway, 74 Iowa, 248, and in both cases the defendant was adjudged liable, though in neither had there been a collision, and in each the horse was merely frightened by an approaching train so that it ran into a bridge. The entire subject is somewhat elaborately considered in Meeker v. Railway, supra, and the like conclusions reached. The section-men, running a hand car over the track, were engaged in the operation of the road. Larson v. Railway, 91 Iowa, 81; Chicago, M. & St. P. R. Co. v. Artery, 137 U. S. 507 (11 Sup. Ct. 129, 34 L. Ed. 747). The use of such car is peculiar to railroading, and when in motion is quite as likely to frighten animals within the right of way as moving trains. If, then, the plaintiff’s mare got on the right of way because of the failure of defendant to inclose it with a sufficient fence, and this, in connection with the fright caused by the approach or movement of the hand car on the track, or the sectionmen engaged in moving the car and acting therein within the scope of their employment, even though not negligent, was the proximate cause of the injury, the plaintiff is entitled to recover. If the mare went into the bridge solely of her own volition, and was uninfluenced by the conduct of the men or by their acts in connection with the movement of the hand car, the company is not liable. The test is not, as appellant contends, whether the result might have
The judgment is affirmed.