140 Iowa 190 | Iowa | 1908
— Plaintiff’s horse, which was running at large on the highway prior to the injury complained of, ran or jumped over a cattle- guard from the highway to the inclosed portion of the right of way just in front of a moving engine of defendant, and received injuries which resulted in its death.
The first case, so far as we can discover, in which this court applied the statutory provision in a case where, it was contended that there had been an original failure to fence, is that of Brentner v. Chicago, M. & St. P. R. Co., 68 Iowa, 530, in which the court sustained an instruction throwing upon the company tbe burden of proving that it bad built a good and sufficient fence. Tbe objection made to this instruction was that as plaintiff alleged the injury to have been occasioned by tbe failure of tbe company to build and maintain a sufficient fence, which allegation was denied in tbe answer, tbe burden was necessarily upon plaintiff to establish sucb allegation, but tbe court citing tbe statute said: “Tbe effect of this provision is to make the fact of tbe injury or destruction of tbe property on tbe railway track prima facie evidence of negligence on tbe part of the corporation.” In the next case involving ¿n original insufficiency of tbe fence (Morrison v. Burlington, C. R. & N. R. Co., 84 Iowa, 663), tbe court, without referring to the Brentner case, held that an instruction was properly refused which called for proof of knowledge of tbe defective condition of tbe fence which
Counsel for appellee rely upon decisions under Code, section 2056, with regard to recovery of damages sustained .from injury to property occasioned by fire set out or caused by the operation of a railway, and insist that, as proof of damages by fire- set out by the company makes out a prima facie case of liability without evidence of negligence on the part of the company, we ought to hold that proof of injuries to stock on the right of way in the operation of the road make out a prima facie case of failure or neglect of the company to- .maintain a sufficient fence. They rely upon Small v. Chicago, R. I. & P. R. R. Co., 50 Iowa, 338; Kennedy v. Iowa State Ins. Co., 119 Iowa, 29, and other like cases holding that, when plaintiff shows the fire which caused the injury to his property was set out by one of the.company’s engines, then the presumption arises that it was caused by the negligence of the company. Proof of the setting out of the fire by the defendant company is strictly analogous to the proof we now require of failure to have a sufficient fence or cattle guard at the place where the animal comes upon the right of way in order to throw upon defendant the burden of proof. "We think that the conclusion we have reached is entirely consistent with the rule announced in the fire cases.
Por the error in giving the instruction above referred