Collins v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 19 January 1904
• Citation: 97 N.W. 1103,122 Iowa 231
• Parties: W. M. COLLINS v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant
• Court: Iowa Supreme Court

97 N.W. 1103

122 Iowa 231

W. M. COLLINS v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

January 19, 1904

Appeal from Dallas District Court--HON. A. W. WILKINSON, Judge.

THIS is an action brought to recover double damages for the killing of a mule. There was a verdict and judgment for the plaintiff, and the defendant appeals.

Reversed.

White & Clarke, J. C. Cook and H. Loomis for appellant.

Giddings & Winegar for appellee.

OPINION

SHERWIN, J.

The mule and other stock passed through a gate in the defendant's right of way fence at a private crossing, and the mule was killed by one of the defendant's trains. The negligence charged is that the gate was insufficient; that it was not kept in proper repair, or furnished with the necessary fastenings. The gate was an ordinary sliding farm gate sixteen feet long, made of common six-inch fencing, hung at the rear end in the usual way, and fastened at the front end by a single strip or tongue slid over a cleat between two posts. When the gate was discovered the next morning after the stock escaped through it, it was found open about three feet toward the railroad track, but just how far back it had been pushed before it was opened does not appear, and the top board near the front end was broken. The stock in question had for some three weeks before this been pastured during the day in a field across the track, and kept at night in the inclosure from which they escaped, passing back and forth through this gate and over the private crossing. It was shown that the stock was frequently found gathered around the gate in the morning. The evidence also tended to show that the bearings of the gate at both ends were worn so that it would slip back easily if started. It was also shown that it was not an uncommon thing for stock to rub against gates, nor for like gates to be opened by stock rubbing against them. While the case is a close one on the evidence, we are unwilling to say as a matter of law that the evidence was insufficient to support a verdict. The sole question for trial was the sufficiency of the gate as it then was with its worn bearings and the manner in which it was fastened. In other words, the question to be determined by the jury was whether the gate as it then was, and without other fastenings than it then had, was a sufficient gate. The court permitted the plaintiff to testify, over the defendant...