Barnhart v. Chi., M. & St. P. Ry. Co.

• Citation: 66 N.W. 902,97 Iowa 654
• Court: United States State Supreme Court of Iowa
• Decision Date: 11 April 1896
• Parties: BARNHART v. CHICAGO, M. & ST. P. RY. CO.

97 Iowa 654

66 N.W. 902

BARNHART

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Iowa.

April 11, 1896.

Appeal from district court, Marshall county; S. M. Weaver, Judge.

Action for damages to a horse. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.Dyer & Stevens and Binford & Snelling, for appellant.

Brown & Hurd, for appellee.

KINNE, J.

1. Plaintiff seeks to recover damages for the value of a horse, which he claims was so badly injured by reason of defendant's negligence as to be rendered useless. The negligence charged is: First, in maintaining an insufficient cattle guard, over which said horse, which had escaped from an inclosure, passed upon the defendant's right of way, and was injured; second, that the employés of the defendant in charge of its engine and train, and knowing that said horse had passed over said guard onto defendant's track and right of way, which was inclosed by a fence, and also knowing that there was a bridge over a stream about 80 rods east of said guard, “wrongfully, willfully, and maliciously started said train across the cattle guards, and ran the train east, frightening said horses so that they ran past the parties in pursuit, and drove them upon said bridge, where plaintiff's horse, being unable to escape, was driven into it, and crippled, so that it became absolutely worthless, by the gross willful and reckless negligence of the defendant.” Defendant denied all of the allegations of the petition, and avers that the injury was caused by the plaintiff's own negligence. At the close of the plaintiff's testimony the defendant moved for a verdict, which motion was overruled, and defendant excepted.

2. The first question for our consideration is, did the court err in refusing to direct a verdict for the defendant? Ordinarily, the question of negligence is one for the jury, though there are cases where it is a question of law for the determination of the court. The rule in this state is, if from the undisputed facts, but one conclusion can be reasonably drawn, then the question is one of law; but if, under the facts, different minds might reasonably reach different conclusions, it is a question of fact for the jury: Milne v. Walker, 59 Iowa, 186, 13 N. W. 101;Whitsett v. Railway Co., 67 Iowa, 150, 25 N. W. 104;Mathews v. City of Cedar Rapids, 80 Iowa, 463, 45 N. W. 894;Collins v. Railway Co., 83 Iowa, 353, 49 N. W. 848;King v. Bird, 85 Iowa, 538, 52 N. W. 494. So it is now the rule that a motion to direct a verdict should be sustained when, considering all of the evidence, it clearly appears to the trial judge that it would be his duty to set aside a verdict, if found in favor of the party upon whom the burden of proof rests. Meyer v. Houck, 85 Iowa, 322, 52 N. W. 235;Reeder v. Dupuy (Iowa) 65 N. W. 338. At the close of plaintiff's case the following facts had been established by his witnesses, and there was no conflict in relation thereto. The horse escaped from plaintiff's inclosure, and ran along the highway until it came to the railway crossing. When it reached that point, it turned east, and ran or jumped over the cattle guard into the defendant's inclosed right of way. The cattle guard was described to the jury, and a plat of it shown some of the witnesses, but it does not appear from the evidence introduced by plaintiff that this plat was introduced in evidence, or seen by the jury. The guard was constructed like all other guards on defendant's road. No evidence had yet been introduced showing it in any respect insufficient. Indeed, the evidence tended to show it to have been sufficient, as all the evidence touching the matter was to the effect that animals had never before been seen to go over these guards. So far as we can see, when plaintiff rested there was no evidence whatever which tended to show that this guard was insufficient, either in construction or repair, unless the fact that the horse passed over it is to be deemed evidence of insufficiency. It is clear that the fact that the horse passed over or jumped over the guard is not of itself evidence of its improper...