Claus v. Chicago Great Western Ry. Co.

• Decision Date: 14 March 1907
• Citation: 111 N.W. 15,136 Iowa 7
• Parties: E. H. CLAUS, Appellant, v. CHICAGO, GREAT WESTERN RAILWAY COMPANY, Appellee
• Court: Iowa Supreme Court

111 N.W. 15

136 Iowa 7

E. H. CLAUS, Appellant, v. CHICAGO, GREAT WESTERN RAILWAY COMPANY, Appellee

Supreme Court of Iowa, Des Moines

March 14, 1907

REHEARING DENIED THURSDAY, OCTOBER 24, 1907.

Appeal from Delaware District Court.--HON. F. C. PLATT, Judge.

ACTION to recover damages for injuries to live stock upon a private crossing. There was a directed verdict for the defendant, and the plaintiff appeals.

Reversed.

Bronson Carr & Sons, for appellant.

T. P McNamara and Yoran, Arnold & Yoran, for appellee.

OPINION

WEAVER, C. J.

The evidence tends to show that the private crossing on the plaintiff's farm was originally protected by a gate in the fence on the margin of the right of way, but the same had become badly rotted, warped, and dilapidated, and was difficult to open and close or to securely fasten. Nearly three months before the accident the gate was opened and left open, according to the plaintiff's showing, until after the cattle were killed. It is also his claim that the foreman in charge of the railroad told him the gate need not be closed, and that a new one would soon be furnished; but whether this was or was not true, or whether the foreman had authority to make such statement, we think it immaterial now to consider. Plaintiff's cattle were placed in a pasture not bordering upon the right of way at this point, but on the night of the accident they broke out and wandered to the crossing, where they were struck by a passing train. The ruling of the trial court which is challenged by the appeal was to the effect that the act or negligence of the plaintiff in leaving the gate open was sufficient in law to defeat his claim for damages.

Under our statute (Code, section 2057) it is made the duty of every railroad company to fence its right of way. The same section provides that, to be regarded sufficient, such fence, when made of barbed wire, shall have at least five wires placed upon posts not more than twenty feet apart, the top wire being fifty-four inches from the ground; and, when of boards, shall have at least five boards securely nailed to posts not more than eight feet apart, and be of the height above mentioned. No express mention is made of gates, but it is a reasonable implication that it is the duty of the company to erect and maintain gates where a suitable open crossing is not provided, and that such gates shall be of a weight, strength, and efficiency corresponding to the legal requirements for a railway fence. Mackie v. Railroad, 54 Iowa 540.

When a railway company fails in the duty thus imposed to protect its right of way against intrusion, by erecting and keeping in repair fences and gates (where gates are required), substantially such as are described in section 2057, above cited, it becomes liable for all injuries resulting from such failure to domestic animals entering upon said right of way, unless it shall appear that the injury was occasioned by the willful act of the owner himself. Code, section 2055. In other words, when the company provides and maintains fences and gates such as the law requires, its duty is done, and if the landowner by his own act, whether willful or negligent, leaves a gate open through which his animals enter upon the right of way to their injury, he has no recourse upon the company. But if the company does not perform its duty in this respect, and its fence or gate is not up to the standard of efficiency which the law prescribes, then it is absolutely liable for all damages thereby resulting to all domestic animals, save only where the injury is chargeable to the willful act of the owner, and it is only necessary to prove the loss or injury in order to make a prima facie case for a recovery. Contributory negligence of the owner, no matter how clearly it appears, will not defeat his action. Therefore, to justify a directed verdict for the defendant, it being admitted that the cattle were killed by a passing train, it must be shown without substantial dispute that the gate was such as the law required, and was left open by the act or negligence of the plaintiff; or, if the gate was not such as the law requires, that the plaintiff by his own willful act exposed his cattle to the injury which they sustained.

As to the first alternative, it is very clear under the evidence that the court could not say as matter of law that the gate sufficiently complied with the statutory requirement, or that when closed the fence of which it formed a part was a sufficient fence. There was...