59 Iowa 33 | Iowa | 1882
I. Two persons were allowed to testify against the objection of the defendant, that they judged from the sound of the train that at the time of the accident it was running very rapidly and more than six miles an hour, which it appears was the highest speed allowed by ordinance of the city. The defendant insists that the speed of a moving train cannot be determined by the sound with sufficient accuracy to justify the- admission of evidence in regard to it, where the witness has no knowledge of it except as derived from the sound.
Small differences in the speed of moving trains cannot probably be determined by the sound, but we think that the difference between the speed of a slowly moving and of a rapidly moving train, could be distinguished quite easily from the sound by a person in the immediate vicinity. The evidence, we think, was not inadmissible. Such evidence, we think, could not, under all circumstances, be deemed wholly unreliable. What weight the evidence in question was entitled to, under the circumstances shown, it was for the jury to determine.
II. The defendant offered in evidence an ordinance of the city of Vinton prohibiting horses from running at large. The plaintiff objected to the ordinance and the Objection was sustained.
The defendant’s position is that where a person owning horses in a city allows them to run at large by night, and lie down and sleep on a railroad track, and the horses are injured
The rule contended for appears to have been held in Halloran v. Railroad Co., 2 E. D. Smith 257, and Bowman v. Railroad Co., 37 Barb., 37. And our attention has been called to no case which holds the contrary. It was held, it is true, in Kuhn v. Railroad Co., 42 Iowa, 420, that the plaintiff was not precluded from recovering, because the cattle which were injured at a public crossing were being allowed to run at large. But the case turned upon the fact the plaintiff had the legal right to allow Ms stock to run at large. Where such right exists, the owner must be held to take the risk only of such injuries as do not result from the defendant’s negligence. In the case at bar the ordinance offered would have shown that such right did not exist. We have a case then, where the 'plaintiff without excuse or justification allowed her horses to lie at night where they were obviously exposed to such accident as happened. We think that the ordinance should have been admitted.
It is not claimed, and could not, we .think, be properly claimed, that the provision of section 1289 of the Code, respecting the restraint of domestic animals, has any application to tMs case. It would doubtless be applicable if the . injury had occurred where the defendant had a right to fence, but it did not.
Eeversed.
