Grahlman v. The Chicago, St. Paul And Kansas City Railway Company

• Decision Date: 19 October 1889
• Citation: 43 N.W. 529,78 Iowa 564
• Parties: GRAHLMAN v. THE CHICAGO, ST. PAUL AND KANSAS CITY RAILWAY COMPANY
• Court: Iowa Supreme Court

43 N.W. 529

78 Iowa 564

GRAHLMAN v. THE CHICAGO, ST. PAUL AND KANSAS CITY RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

October 19, 1889

Decided October, 1889

Appeal from Chickasaw District Court.--HON. L. O. HATCH, Judge.

ACTION to recover the value of a certain horse killed while upon defendant's railroad track, by a train operated thereon. There was a judgment upon a verdict for plaintiff. Defendant appeals.

AFFIRMED.

J. R Bain, for appellant,

J. W Sandusky, for appellee.

OPINION

BECK, J.

I.

The evidence tends to support the allegations of the petition to the effect that the horses of plaintiff killed by the railroad train went upon the track over a cattle-guard, which was filled with snow so packed as to enable the horses to cross the cattle-guard and reach the track. It is alleged that the snow, through negligence of defendant, was permitted to accumulate in and upon the cattle-guard.

II. The defendant asked instructions to the effect that defendant was not required to exercise any care or diligence to keep its cattle-guards free from snow; and that, if the horses of plaintiff were enabled to enter the railroad track of defendant by reason of snow in the cattle-guard, it is not liable in this action. These instructions were refused, and an instruction in the following language was given: "If you find that the cattle-guard was packed full of snow, you will carefully inquire whether this condition was the fault of the defendant. The law did not require the defendant to keep its cattle-guards free from snow, regardless of circumstances, but did require the defendant to use ordinary care and diligence to do so. If such care was used, the defendant did its whole duty; otherwise not. The defendant was not required to excavate the snow from the cattle-guard unless it had notice that it was filled, or unless it might have had such notice by the use of ordinary care in looking after its road; and after such notice the law would give the defendant a reasonable time and opportunity to make the proper excavation before it would hold the defendant liable for the omission. Nor would the law require the defendant's servants to expose themselves to extreme cold, or hard storms (in which the ordinary man would not regard it safe to work), in order to remove snow from a cattle-guard."

III. It will be observed that the instruction given requires the defendant to use ordinary care and diligence to keep the cattle-guards free from snow. Surely defendant, in the operation and management of its road, can omit nothing, which may be accomplished by the exercise of ordinary care and diligence, that will protect property in any way exposed to dangers in the operations of its trains. If the snow could have been removed from the cattle-guards, or its accumulation there could have been prevented by the exercise of ordinary care and diligence, it cannot be...