Asbach v. The Chicago, Burlington & Quincy Railway Company
| Decision Date | 12 March 1888 |
| Parties | ASBACH v. THE CHICAGO, BURLINGTON & QUINCY RAILWAY COMPANY |
| Court | Iowa Supreme Court |
Decided December, 1887
Appeal from Decatur District Court.--HON. JOHN W. HARVEY, Judge.
ACTION for the recovery of double the value of a horse which plaintiff alleges was killed on defendant's railroad at a point where it had the right to fence its track, but where it had neglected to fence the same. The cause was tried to the court without the intervention of a jury, and judgment was entered for plaintiff. Defendant appeals.
REVERSED.
T. M Stuart, for appellant.
Bullock & Hoffman, for appellee.
The main question in the case is whether the judgment is supported by the evidence. It is undisputed that the animal in question was killed while running at large by falling from a bridge on defendant's railroad, and that the track at that point was not fenced. None of the witnesses claim to have seen the accident, and the exact time when it occurred cannot be determined from the testimony. The engineers who were employed on that part of the road were examined, and each testified in effect that the animal was not struck or thrown from the bridge by his engine, and that he did not, at any time near the date when it was found dead beside the bridge, see it upon the track or bridge. It was also proven that all the trains at that time passed the point in question by daylight. Plaintiff claims, however, to have established certain circumstances which lead reasonably to the conclusion, as she claims, that the animal, being frightened by an approaching train, ran upon the bridge until it fell upon the ties, and, in struggling to arise, it fell to the ground below, and was killed. Unless this theory as to the cause of the injury can be maintained, the judgment cannot be upheld, for there is not only no evidence that the animal was struck and thrown from the bridge by a passing train, but there is positive evidence to the contrary, and no effort was made to impair the credit of the witnesses who gave that testimony; and when we look into the testimony relied upon to establish the theory, we think it utterly fails to establish it. The circumstances relied upon are that the animal was exceedingly nervous, and was always liable to be frightened by a moving train or locomotive, and that it was with great difficulty that it could ever be driven upon or about a railroad track; that a train was stopped near the bridge on the evening of the first of August, that being two or three days before p...
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