53 Iowa 632 | Iowa | 1880
of the constitution of the State. This section was g-Q^ed in 1862, and in Jones v. The Galena & Chicago Union Railroad Company, 16 Iowa, 6, it was held to be a valid enactment, and not repugnant to any constitutional provision. Since the decision in that case the law has been regarded as settled, and it is now no longer a debatable question.
III. The horse was struck by an engine of the defendant. His leg was broken, and he was otherwise injured so far as to be entirely valueless. The employes of defendant on the next morning after the injury killed and buried him. Plaintiff introduced evidence showing the fact that the horse was killed by the employes of defendant. This evidence was objected to, and is made the ground of an assignment of error. Prob
IY. The court instructed the jury that it is the duty of a railroad company to fence its road against live stock running at large, at all points where such right to fence exists. It is objected to this instruction that no such duty exists.
While it is true the statute does not impose an abstract duty or obligation upon railway companies to fence their roads, yet as to live stock running at large a failure to fence fixes an absolute liability for injuries occurring in the operation of the road, by reason of the want of such fence. The corporation owes a duty to the owners of live stock running at large, either to fence its road or to pay for injuries resulting from the neglect to fence. This was sufficiently explained to the jury in the instructions, and they could not have .been misled in regard to the rights of the parties, as affected by the want of fences on that part of the road where the injury occurred.
This instruction is correct; and we think the jury was fully
It is objected that there was no evidence to warrant this instruction. The objection is well taken. There is an entire absence of evidence of the ownership of the horse. There is no proof of possession. The ownership was an issuable fact. It was necessary for the plaintiff to prove in some way that, he was the owner. He did not even make the prima facie proof by showing possession in himself. For this error the judgment must be reversed, and the cause remanded for a new trial.
Beveesed.