Grove v. Burlington, C. R. & N. Ry. Co.
| Decision Date | 08 September 1888 |
| Citation | 39 N.W. 248,75 Iowa 163 |
| Court | Iowa Supreme Court |
| Parties | GROVE v. BURLINGTON, C. R. & N. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from district court, Hancock county; G. W. RUDDICK, Judge.
Action by John Grove against the Burlington, Cedar Rapids & Northern Railway Company to recover double the value of two horses, which it is alleged were killed by a train of the defendant at a point on its railroad where it had the right to fence its right of way and track, and failed to do so. There was a verdict and judgment for the defendant. Plaintiff appeals.A. F. Call, for appellant.
E. B. Soper and S. K. Tracy, for appellee.
The undisputed facts, as shown by the evidence, are, in substance, as follows: The plaintiff loaned his team to one Goeders, to go from Luverne to Livermore for a priest. Goeders hired one McCaffray to make the trip, and drive the team, which was hitched to a sleigh. McCaffray arrived at Livermore at about dusk in the evening, and there remained until about 10 o'clock in the night, when he started on his return to Luverne. While at Livermore he became very drunk, and shortly after leaving there he fell into a drunken stupor, and the team wandered off the road some two or three miles, and circled around on the open prairie, and brought up on the railroad track, and were struck by an engine and killed. McCaffray testified as a witness that he was in a profound sleep until after the team was killed. The statute provides that for a failure to fence a railroad the corporation operating the same shall be liable for damages done to “live-stock running at large.” Code, § 1289. The defendant moved the court to instruct the jury to return a verdict for the defendant, and the motion was sustained on the ground that the team was not running at large within the meaning of the statute. The question presented by the appeal is whether this ruling was correct. Counsel for appellant cites us to Hinman v. Railway Co., 28 Iowa, 494, and other cases determined by this court, and claims that, under the rule of the cited cases, the question as to whether the team was running at large should have been submitted to the jury We do not think any of the cases relied upon sustain the claim of plaintiff. In all of them the animals were without a driver, and not under the control of any one. In the case at bar there was a driver in the sleigh. Plaintiff, in effect, contends that he was not a driver, because he was so drunk that he was insensible. We are,...
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