Coyle v. Chicago, Milwaukee & St. Paul R'Y Co.
| Decision Date | 14 December 1883 |
| Citation | 17 N.W. 771,62 Iowa 518 |
| Parties | COYLE v. THE CHICAGO, MILWAUKEE & ST. PAUL R'Y CO |
| Court | Iowa Supreme Court |
Appeal from Jones Circuit Court.
ACTION before a justice of the peace to recover double the value of a calf killed by a train on defendant's road, at a place as claimed by the plaintiff, where the right to fence existed.
By agreement of the parties, the justice made a finding of facts, and rendered judgment for the plaintiff. The defendant sued out of the circuit court a writ of error.
The judgment of the justice was affirmed, and the defendants appeal.
AFFIRMED.
Struble & Kinne, for appellants.
Herrick & Doxsee, for appellee.
The question we are called on to determine has been certified to us by the trial judge, and is in these words "Is it necessary for railroad companies, for the purpose of avoiding the statutory liability for killing stock on the line of its road within the limits of corporate towns, and outside of the first street or alley of said town, to fence same against stock running at large?"
It is provided by statute that "any corporation operating a railway that fails to fence the same against live-stock running at large, at all points where the right to fence exists, shall be liable to the owner of any stock injured or killed by reason of the want of such fence." Code, § 1289.
If the statute is construed literally, railway corporations are liable if they fail to fence at any place, except where the line of the road crosses or encroaches on a highway. But in Davis v. B. & M. R. R. Co., 26 Iowa 549, it was held that the statute should not be so construed, and it was further held in that case that the right to fence depot grounds did not exist. In Rogers v. C. & N.W. R. R. Co., 26 Iowa 558, an instruction in these words: "that if the horse was killed in the town plat of Oxford, but not on the depot grounds or within the switches, and not on any street crossing, and the road was not fenced, their verdict should be for the plaintiff for double the value," was held to be erroneous, because "in principle this case is on all fours" with the case first above cited. It is insisted by counsel for the appellant that this case is decisive of that at bar, but we think there are material differences between the two. In the case last cited, the horse got on the track at the "Madison street crossing, ran west along the track one square to Vine street, and was then killed." The question was whether, under the facts above stated, the instruction was correct?
The right to fence clearly did not exist at the place where the horse got on the track, and yet the liability of the defendant was made to depend on the fact that the road was not fenced within the limits of the town, provided the horse was...
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