Krause v. B., C. R. & N. R. Co.

• Decision Date: 15 December 1880
• Citation: 7 N.W. 598,55 Iowa 338
• Court: Iowa Supreme Court
• Parties: KRAUSE v. B., C. R. & N. R. CO.

55 Iowa 338

7 N.W. 598

KRAUSE

v.B., C. R. & N. R. CO.

Supreme Court of Iowa.

Filed December 15, 1880.

Appeal from Linn district court.

Plaintiff claims a mare, belonging to him, was greatly injured by a train on defendant's road, and this action was brought to recover damages therefor. Trial by jury, verdict and judgment for the plaintiff, and defendant appeals.J. & S. K. Tracy, for appellant.

J. C. Davis, for appellee.

SEEVERS, J.

For the purposes of this appeal it must be conceded the defendant's road was not fenced, and, by reason thereof, the plaintiff's mare got on the track, and, being frightened by a train, ran along the track in front of it until she came to a bridge forming a part of the road, in attempting to cross which she was greatly injured without having been struck by the train.

1. The court gave the jury the following instruction:

“ Third. Upon the question as to what was the direct or proximate cause of said injury, you are instructed that you will consider all the evidence before you as to the situation and condition of defendant's railroad track at and near and adjacent to the place where said injuries occurred; you will also consider the height of said track at and near said place, in relation to the lands on either side; you will consider the condition of the defendant's right of way on either side of the defendant's road-bed, at and near where said injury occurred, and whether there were natural or artificial means of egress for animals from said track, where said mare and colt were after defendant's train came in sight; and you will also consider the acts and conduct of defendant's agents in the management and control of the train, that, it is alleged, was the cause of the said injury, and the distance said train was from said animals from the time they were discerned on the track until the injury occurred; and, in view of all the facts and circumstances in evidence, you will determine whether defendant's train was the direct cause of the injuries complained of or not. If, under the circumstances in evidence, it was natural for said mare and colt to take and follow said track, then the approaching train may be presumed to be the direct cause of the injuries, and defendant is liable; but if, under such circumstances, it was natural for said mare and colt to leave said track, then the defendant is not liable, and your verdict should be for it.”

This instruction is said to be erroneous, because “there was no...