Lee v. Minneapolis & St. Louis R'Y Co.

• Decision Date: 24 April 1885
• Citation: 23 N.W. 299,66 Iowa 131
• Parties: LEE v. THE MINNEAPOLIS & ST. LOUIS R'Y CO
• Court: Iowa Supreme Court

23 N.W. 299

66 Iowa 131

LEE v. THE MINNEAPOLIS & ST. LOUIS R'Y CO

Supreme Court of Iowa, Davenport

April 24, 1885

Appeal from Hancock Circuit Court.

THIS is an action to recover double the value of two hogs, the property of the plaintiff, which were killed by a train of cars on defendant's railroad, at a point where it had the right to fence its road, but had not done so. Upon a trial of the case a judgment was rendered for the plaintiff, and defendant appeals.

AFFIRMED.

J. D Springer and Bush & Wichman, for appellant.

J. E Bradford, for appellee.

OPINION

ROTHROCK, J.

I.

The amount in controversy, as shown by the pleadings, does not exceed $ 100, and the appeal comes to us upon the following certificate of the trial judge: "(1) Where hogs, which are prohibited by statute from running at large, are allowed by the owner to run at large upon his unfenced premises through which a line of railway runs, with the full knowledge, sufferance and consent of the owner, and while so running at large go upon the line of defendant's unfenced railway, at a point where defendant has a right to fence its railway, and are killed by defendant's train running thereon, is the defendant railway company liable for damages, under section 1289, Code, without any showing that said loss or damage was caused by negligence of defendant railway company's servants? (2) Does said statute require railway companies operating railway lines in this state to fence their said railway lines against hogs running at large, which are prohibited by statute from running at large?"

In the cases of Fernow v. Dubuque & S.W. R. Co., 22 Iowa 528, Spence v. Chicago & N.W. R. Co., 25 Iowa 139; and Stewart v. Same, 27 Iowa 282, it was held that under chapter 169, Laws of the Ninth General Assembly, a railroad company was liable for swine killed on its track, while running at large, at a point where the company had the right to fence its road and had not done so, although swine were prohibited from running at large by local county regulations where the injury occurred, unless it were shown that such injury was occasioned by the willful act of the owner or his agent. It is claimed by appellant that by section 1289 of the Code a material change was made in the act of the Ninth General Assembly above cited, and that the above cases are no longer applicable. In the case of Krebs v. Minneapolis & St. L. R. Co., 64 Iowa 670 21 N.W. 131, the same question was presented, and we held that the change made in the statute did not effect the...