Cohoon v. Chi., B. & Q. R. Co.

• Decision Date: 31 January 1894
• Citation: 57 N.W. 727,90 Iowa 169
• Court: Iowa Supreme Court
• Parties: COHOON v. CHICAGO, B. & Q. R. CO.

90 Iowa 169

57 N.W. 727

COHOON

v.CHICAGO, B. & Q. R. CO.

Supreme Court of Iowa.

Jan. 31, 1894.

Appeal from district court, Adams county; H. M. Towner, Judge.

Action to recover damages for personal injuries, and for damages to horses and wagon. Jury trial. Verdict, by order of court, for defendant. Plaintiff appeals.James G. Bull and Thomas L. Maxwell, for appellant.

Smith McPherson and H. T. Granger, for appellee.

KINNE, J.

1. The petition charges the defendant with negligence in running its train, which struck defendant's wagon and caused the injuries, on the depot grounds in the city of Villisca, at a greater rate of speed than eight miles per hour. It is averred that by reason thereof the accident happened, and that plaintiff did not contribute thereto. It is also claimed that defendant was guilty of negligence in the speed at which it ran its train, regardless of the statutory negligence pleaded. The answer was a general denial. The court, at the close of plaintiff's testimony, and on defendant's motion, directed the jury to return a verdict for defendant, which was done.

2. The first question raised for our consideration is as to whether defendant was guilty of statutory negligence, in running its train at a greater rate of speed than eight miles an hour within the depot grounds of defendant. There is no dispute as to the facts touching this matter. All the evidence showed that the train, at the time of the accident, was running at a speed of from 25 to 35 miles an hour upon depot grounds necessarily used by the company and the public. The statute relied upon by appellant is Code, § 1289. In order to present the matter intelligently, it is necessary to set out this section, as the particular clause in controversy is so connected with the balance of the section that, to properly construe it, it should be read in connection therewith. The section reads: “Any corporation operating a railway, that fails to fence the same against live stock running at large at all points where such right to fence exists, shall be liable to the owner of any such stock injured or killed by reason of the want of such fence for the value of the property or damage caused, unless the same was occasioned by the willful act of the owner or his agent. And, in order to recover, it shall only be necessary for the owner to prove the injury or destruction of his property; and if such corporation neglects to pay the value of or damage done to any such stock within thirty days after notice in writing, accompanied by an affidavit of such injury or destruction, has been served on any officer, station or ticket agent employed in the management of the business of the corporation in the county where the injury complained of was committed, such owner shall be entitled to recover double the value of the stock killed or damages caused thereto; provided, that no law of this state, nor any local or police regulations of any county, township, city or town, regulating the restraint of domestic animals, or in relation to the fences of farmers or land owners, shall be applicable to railway tracks, unless so specifically stated in the law or regulation. The operating of trains upon depot grounds necessarily used by the company and public, where no such fence is built, at a greater rate of speed than eight miles per hour, shall be deemed negligence and render the company liable under this section. And provided further, that any corporation operating a railway shall be liable for all damages by fire that is set out or caused by operating of any such railway, and such damages may be recovered by the party damaged in the same manner as set forth in this section in regard to stock, except to double damages.” The original of this section was enacted in 1862. See chapter 169, § 6, Acts 9th Gen. Assem. As originally passed, the act did not contain any provision limiting the speed of trains upon depot grounds. That provision first appears in the Code of 1873, and in its present form. The section, as it now reads, contains a provision making railway companies liable for killing stock running at large, at all points where they have a right to fence, and have not done so, if the damage or injury resulted from a want of such fence. It contains a provision making such companies liable for damages by fire set out or caused by them in the operation of their roads, and also the provision in controversy, relating to the rate of speed upon depot grounds. We think the provision in controversy has no...