Bothwell v. Chi., M. & St. P.R. Co.
| Decision Date | 13 July 1882 |
| Citation | 59 Iowa 192,13 N.W. 78 |
| Court | Iowa Supreme Court |
| Parties | BOTHWELL v. CHICAGO, M. & ST. P. R. CO. |
OPINION TEXT STARTS HERE
Appeal from Jones district court.
This is an action to recover the value of two colts which it is alleged were killed by being run over by one of defendant's trains. There was a trial by jury. At the close of the introduction of the plaintiff's evidence the court, on motion of the defendant, directed the jury to return a verdict for the defendant. Plaintiff appeals.
DAY, J., as to the sufficiency of the evidence, dissenting.J. W. Jamison, for appellant.
Sheean & McCarn and D. S. Wegg, for appellee.
The plaintiff owns a farm through which defendant's road passes in such a manner that there is a field or pasture of five or six acres on the north side of the road. The road is fenced through the farm, and there is a private crossing and two gates, one on the north and one on the south side of the track, erected and maintained for the convenience of the plaintiff in the use of her land on the north side of the road. The gate on the north side opened into the pasture. It did not turn or swing into the right of way of the road. On the morning of October 11, 1881, the gate was open some two or three feet, and two of the plaintiff's colts were found dead upon the right of way, having been killed by a passing train. For some time before the accidentthe two colts which were killed, and another colt and some calves, had been pasturing in the field north of the track.
It appears to be conceded that the colts went upon the track through the gateway. There is no claim that the fence at any other point was defective, and we do not understand that the gate as originally constructed was insufficient either in its construction or fastenings. The only evidence on that point is by one witness, who states that “this kind of gates are ordinarily used and considered good.” It appears it was made of inch pine lumber, but of how many boards, what length, and how constructed, we are not advised by the record. This is probably to be accounted for by the fact that there was a model of the gate used upon the trial, and the court and jury were thereby enabled to see at once how it was constructed, and the extent of the defect therein, which plaintiff claimed was the cause of the accident. As near as we can tell, from the evidence, the board in the gate next to the top was broken some two or three feet from the end where the gate fastened. The short end of the break hung down at the broken end of it, and the long end remained in place. It is not claimed by appellant that this opening was sufficient to allow the colts to pass through. It is evident from the above statement that this would be impossible. But it is claimed that one of the colts put its head through this opening and pushed the gate back so that it would open, and thus opened the gate, and that all of them then passed through and onto the railroad track. If this theory were supported by evidence, either direct or circumstantial, the court erred in directing the jury to find for the defendant. It will be observed that plaintiff does not claim that the gate was liable to be opened by the action of the wind, or by animals rubbing against it, as was found to be true in McKinley v. C., R. I. & P. Ry. Co. 47 Iowa, 76. Neither is it claimed that any witness saw the gate opened by the colts. The evidence which, it is urged, supports the plaintiff's theory is...
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