25 Iowa 139 | Iowa | 1868
It was agreed that this statement should stand as the finding of the facts by the court. As a conclusion of law therefrom, the District Court found that plaintiff was not entitled to recover, and rendered judgment in favor of defendant for costs. This action is now complained of as error.
The decision of the case does not rest upon common law principles which preclude a plaintiff from recovering where he has himself been negligent or where the negligence is mutual; but it must be decided under our stat
TJnder the ordinary and well recognized rules of law, it is very clear, that, since this plaintiff was himself guilty, not only of negligence, but of the violation of a positive regulation or law, in suffering or allowing his hog to run at large, he could not recover. But our statute, quoted above, makes the railroad company absolutely liable for stock killed on its road if not fenced. This liability exists regardless of the question of negligence. Indeed, the statute - expressly declares that liability to exist, “ unless the i/ngury was occasioned by the willful act of the oioner or his agent,” and then it casts the burden of proving this willfulness upon the railroad company, by providing that “ it shall only be necessary for the owner of the property to prove the injury or destruction complained of.” The agreed statement is silent, as to whether the hog was running at large by accident, or by the care
What measure of proof the legislature intended to require, in order to show that the stock was injured, killed or destroyed, “ by reason of the want of such fence," may not be so entirely clear as to exclude every doubt. And yet, it seems to us, that the fact that such fence is not constructed, is of itself sufficient, prima facie, to entitle the owner of such stock as may be injured, to recover. Whether the company could defeat such prima facie case, by showing the particular animal injured to be so unruly as not to be stopped or turned by such fence, we need not now determine. In this case there is no showing that the fence required by law, if built, would not have prevented the accident. The agreed statement of facts shows “ the injury or destruction complained of,” and that makes the plaintiff’s case, so far as that branch of it is concerned. If the plaintiff had driven his hog upon the track, or had permitted him to escape for the purpose of going upon the track, such acts, being “ willful,” might well be held to have “ occasioned” the injury, and therefore defeat a recovery. But in this case there is no such showing; the only fact shown is, that the hog was at large contrary to the regulation in that county. This alone, under our statute, will not defeat the plaintiff’s right to recover. The same rule is held in New York under a statute much less rigorous than ours. See Corwin v. N. Y. & E. R. R. Co., 13 N. Y. (3 Kern.) 42; followed and approved in Shepherd v. The B. N. Y. & E. R. R. Co., 35 N. Y. (8 Tiff.) 641; Bradley v. The Same, 34 id. 427. See also Fernow v. Dubuque & South-western R. R. Co., 22 Iowa, 528; Russell v. Hanley, 20 id. 219. Reversed.