Gibson v. Iowa Cent. Ry. Co.
| Decision Date | 19 November 1907 |
| Citation | 113 N.W. 927,136 Iowa 415 |
| Parties | FREMONT S. GIBSON, Appellant, v. IOWA CENTRAL RAILWAY Co., Appellee |
| Court | Iowa Supreme Court |
Appeal from Cerro Gordo District Court.--HON. CLIFFORD P. SMITH JUDGE.
ACTION at law to recover the value of a mare killed upon or near defendant's right of way in the city of Mason City. Trial to a jury, verdict for plaintiff, which was set set aside upon defendant's motion for a new trial, and plaintiff appeals.
Affirmed.
Glass McConlogue & Witwer, for appellant.
John I Dille, Geo. C. True, and Blythe, Markley, Rule & Smith, for appellee.
Plaintiff 's petition is in two counts. In the first he asked recovery upon the ground that his animal was killed upon defendant's right of way at a place where it had the right to fence, and in the second he sought to hold defendant liable for the negligence of its employes in charge of the train which killed the animal. At the conclusion of the testimony, the trial court, upon motion, directed a verdict for defendant upon the first count, or refused to submit the same to the jury. The second count was submitted, and a verdict was returned for plaintiff, which was afterward set aside on defendant's motion for a new trial, upon the ground that there was no testimony showing that defendant's employes saw the mare in time to have prevented the accident. The evidence shows that plaintiff's mare was kept in a barn upon the fair grounds near Mason City, Iowa in charge of one Swift. On the evening of January 21, 1906, the barns took fire, and the horses were gotten out as quickly as possible, and some of them, including plaintiff's mare, were permitted to escape. The next morning plaintiff's animal was found dead near the south abutment of a viaduct on defendant's right of way, crossing what is known as "Superior street" or "Merrill avenue," in the city of Mason City. There was evidence tending to show that the mare had followed defendant's right of way from the north for some distance until she reached the viaduct, where she was either struck by a train and thrown into the street below or where she fell from the embankment into the street, receiving injuries from which she died. All the evidence tended to show that the animal went upon the track within the city limits and within that portion thereof which was platted, and through which ran various streets and alleys, and, in so far as the case rests upon the first count of the petition, the sole question is: Did the mare go upon the track, or was she killed at a place where defendant had a right to fence?
It is conceded that at neither place did defendant maintain a fence. This, of course, it was not required to do; but, if the accident occurred at a place where defendant had a right to fence and by reason of the want of such fence, then defendant is liable on the first count of its petition. Code section 2055, and cases cited. That these places were both within the city limits is not controlling, but, if at such place within the boundaries of the city as was platted into lots and blocks and was intersected by streets and alleys, the railway company had no right to fence, and is not responsible for stock killed by reason of the want of fences along its right of way. Blanford v. Railroad , 71 Iowa 310; Rogers v. Railroad , 26 Iowa 558; Coyle v. Railroad , 62 Iowa 518, 17 N.W. 771. It is not important that the lots and blocks are irregular in shape or variant in size; nor is the mere fact that the streets and alleys were not used or open to the public travel controlling. Lathrop v. Railroad , 69 Iowa 105; Long v. Railroad , 64 Iowa 657. Whether or not the place was one where defendant had a right to fence is a question of law for the court, and not ordinarily under undisputed facts one of fact for a jury. Blanford v. Railroad, 71 Iowa 310. Now, the evidence shows without dispute that both at the place...
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