38 Iowa 518 | Iowa | 1874
• Section 3, of Chapter 169, of the Laws of 1862, being an act entitled “ An act in relation to the duties of railroad companies,” provides that, “where any railroad runs through any improved or fenced land, said railroad company shall make proper cattle guards on such roads, when they enter or leave such improved or fenced land.”
• It is insisted by appellant’s counsel that this section “refers to outside fences only, and to the land of a particular owner, and has no application to what they call division fences.” We find nothing to warrant us in adopting this construction. The language is plain and unambiguous, that where the railroad enters or leaves improved or fenced land, the railroad company is required to make proper cattle guards.
The requirement is not limited to the boundary fences of the land owner, but wherever the road enters or leaves what is inclosed by a fence, a cattle guard must be put in at the place of entry, and one at the place .of leaving the fenced land. This is the plain and unmistakable meaning of the language ■used in the enactment. The evident intention of the legisla
The instructions given by the court on this branch of the case embodied the views above stated, and were correct. The refusal to give those asked by defendant, embodying a contrary doctrine, was not erroneous.
II. The next question, presented in argument, is as to the proper measure of damages for a failure on the part of the railroad company to put in the proper cattle guard.
The first instruction is just and reasonable, and has the support of authority; see Chicago & Rock Island R. R. Co., v. Ward, 16 Ill., 522, and cases cited; Bucknam v. Marsh, 12
This instruction contains a correct statement of the law, applicable to the circumstances of the case. It embodies the doctrine contended for by appellant as to the duty of plaintiff, and it tells the jury that, for any damage sustained by him which was the result of his own negligence, he cannot recover.
So, also, if his cattle were necessarily injured because of the failure of defendant to put in the cattle guard, the plaintiff should, upon the same principle of compensation, be allowed to recover therefor. ■
IV. It is claimed by counsel for appellant that plaintiff should not have planted his crops, knowing as he did, that they would be destroyed for the want of a cattle guard, where the railroad enters the cultivated field from the pasture, and that he cannot therefore recover for the destruction of the crops so planted. ■ There was evidence tending to show that plaintiff had applied to different persons connected with the railroad to have the cattle guard put in, and that he had reason to expect that it would be so done in time to protect his crops. While there is a conflict of evidence on this point, yet there is
We find no error in the record, and the judgment will therefore be
Affirmed.