Mundhenk v. Central Iowa R. Co.

• Decision Date: 24 March 1882
• Citation: 11 N.W. 656,57 Iowa 718
• Parties: MUNDHENK v. THE C. I. R. CO
• Court: Iowa Supreme Court

11 N.W. 656

57 Iowa 718

MUNDHENK v. THE C. I. R. CO

Supreme Court of Iowa, Des Moines

March 24, 1882

Appeal from Marshall District Court.

ACTION to recover double damages for injury to two horses done by one of the defendant's trains; also to recover the amount of a veterinary surgeon's bill paid for doctoring one of the horses. There was a trial by jury, and verdict and judgment were rendered for the plaintiff. The defendant appeals.

REVERSED.

Boardman & Daly, for appellant.

J. M Parker, for appellee.

OPINION

ADAMS, J.

I.

The railroad runs north and south. The horses were struck either where the railroad crosses a highway, running east and west or a few feet north of the highway. The train which struck them was going north. The plaintiff claims that they were struck north of the highway, and where the defendant had a right to fence. The defendant claims that they were struck in the highway. The defendant also claims that if they were struck north of the highway they were struck where it is not fit, proper, or suitable to fence, and therefore where it had no right to fence.

There was some evidence tending to show that they were struck north of the highway, and the question as to whether they were or not is not reviewable by us.

The question as to whether, if they were struck north of the highway, they were struck at a point where it was fit proper, and suitable for the defendant to fence, the defendant claims was a question of fact, which should have been submitted to the jury. The defendant propounded a special question upon this point, and asked that it be submitted to the jury; but the court refused to submit it. This refusal is assigned as error.

In respect to the character of the place the facts are undisputed. The land north of the highway was fenced, but no cattle guard was constructed where the railroad enters the land after leaving the highway. The defendant's design was that a certain railroad bridge, which commenced fifty-two feet north of the highway and extended forty-eight feet, should serve as a cattle guard Fences were constructed on each side of the railroad from the bridge to the highway where the fences connected with the highway fence. These fences in connection with the bridge formed a pocket. The embankment of the railroad at the bridge was ten feet high with precipitous sides. The company omitted to put in a cattle guard at the highway because its officers thought that a cattle guard at the highway, so near the bridge, approached as it was upon such an embankment, would imperil the safety of trains. They claim that such would have been the effect, and hence that they were not required to put in a cattle guard at the highway, and could not properly have done so, and could not properly have fenced that part of their road between the highway and the bridge.

Whether the safety of trains would not have been promoted rather than impaired by a cattle guard at the highway is a question which to our mind admits of great doubt. Possibly the jury might have found for the company upon this point. But the refusal of the court to direct the jury to make a finding upon it was not in our opinion error. The statute is imperative. It provides that every "corporation constructing or operating a railway shall make proper cattle guards where the same enters or leaves any improved or fenced land." If an exception ought to be engrafted upon the statute it is the province of the legislature, and not the court, to do it.

The defendant contends, however, that the court has already made a ruling which would justify us in holding that the defendant was not bound to put in a cattle guard if it was not fit, proper, and suitable to do it. The case relied upon is Davis v. B. & M. R. Railroad Co., 26 Iowa 549, 550. In that case it was held, in substance, that a railroad company has not a right to fence, within the meaning of the statute, except where it is fit, proper, and suitable to fence, and hence that it has not a right to fence depot grounds. But the question there decided is not analogous to the one before us. There is no statute requiring a railroad company to fence anywhere. It has, in the nature of the case, a right to fence except where the public convenience must be held to exclude the right, and in the case cited it was thought that the public convenience must be held to exclude the right to fence depot grounds.

II. The defendant assigns error upon the refusal to give an instruction which is in these words: "4. If the plaintiff's stock was injured in the so-called pocket or curve of the fence towards the bridge, yet, if the point where they were first struck was within the limits of a traveled highway of ordinary width--a de facto highway--then the defendant would not be liable."

It was contended by the defendant that the evidence showed that the public travel had deviated a little to the north, and had spread over ground not enclosed in the legally established highway.

To this we have to say that we find no such evidence.

III. The plaintiff was allowed to show, against the defendant's objection, the acts and declarations of one John Sherman the defendant's road-master. It was made to appear that he agreed with the plaintiff upon an arbitration, and selected an arbitrator, while the plaintiff selected an arbitrator.

The evidence of Sherman's acts and declarations was, we think, inadmissible, and not without prejudice. It was manifestly introduced as evidence tending to show that the defendant deemed itself liable. But an offer to arbitrate is not an admission of liability. Besides Sherman's admission, if he had made any, could not be deemed the admission of the company. "The representations declarations, and admissions of the agent of a corporation, stand upon the same footing with those of the agent of an individual." ...