77 Iowa 29 | Iowa | 1889
The cause came into this court on the following certificate of the trial judge: “Plaintiff’s cow, being at large in the vicinity of defendant’s unfenced track, strayed upon the track. Defendant’s employes rang the bell, sounded the whistle, applied the brakes, and did all in their power to stop the train, but failed to stop the train, before it struck the cow. Plaintiff, being present, and having the ability to prevent the accident by driving the cow from the track, and having ample time to do so, (speed having been reduced to about two miles per hour), wilfully neglected and refused to take any steps or to do any act to drive said cow from the tract, and wilfully permitted the cow to remain on defendant’s track, in front of the engine, and to be run down thereby, and said cow was run down and killed, without fault or negligence on part of defendant’s employes in charge of the train. First Question. Was the plaintiff’s loss due to his wilful act, within the meaning of section 1289 of the Code, which prevents recovery when the loss is occasioned by the wilful act of the owner of stock killed % Second Question. Does section 1289 operate to make a railroad company absolutely liable for the value of the stock killed by reason of the want of a fence, in cases where the owner had the power to prevent the injury, but wilfully refused to exercise such power f ’
That portion of section 1289 necessary to be considered in determining the questions certified is as follows: “Any corporation operating a railway, that fails
Reversed.