Moore v. The Burlington & Western R'y Co.
| Decision Date | 18 June 1887 |
| Citation | 33 N.W. 371,72 Iowa 75 |
| Parties | MOORE v. THE BURLINGTON & WESTERN R'Y CO |
| Court | Iowa Supreme Court |
Appeal from Mahaska District Court.
ACTION to recover damages caused by the defendant's failure to fence its road, whereby a horse, the property of plaintiff was injured. Trial by jury. Judgment for plaintiff, and defendant appeals.
REVERSED.
Kelly & Cooper and John F. Lacey, for appellant.
Bolton & McCoy, for appellee.
The evidence shows that the horse was injured early in January 1884, and that the railway was not fenced. It is not claimed that the horse was struck by the engine, or that the character of the injury would justify such an inference, but the plaintiff claims that the horse was frightened or driven along the railway by a train, and that, while running, he fell through a cattle-guard, and was injured. The court instructed the jury that, in order to entitle the plaintiff to recover, he must establish by a preponderance of the evidence that the horse was injured by being driven by one of the "defendant's trains into a cattle-guard."
The question, therefore, is material whether there is any evidence tending to sustain such proposition. The only evidence bearing on such question is as follows: There were three horses together, only one of which, however, was injured. They were on the right of way, and their tracks "showed that they were going fast," both before the cattle-guard was reached and afterwards. The horse was injured in the night-time, and no person saw the occurrence. There is evidence tending to show that during the night-time a train passed over the road.
As the burden was on the plaintiff to show that the horse, because of fright caused by the approach of a train, fell into the cattle-guard, we are required to determine whether the foregoing evidence has any tendency, when fairly considered, to establish such fact. It will be observed that the only fact which can be regarded as established is that the indications were that the horses were running before they reached and after they had passed the cattle-guard. This does not, in our opinion, constitute any evidence upon which the required presumption can be legitimately based. Horses become frightened for many causes; and, when not under control, run without any apparent reason. The presumption, then, that they were frightened by a train, is mere surmise or inference which cannot be...
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