Rhines v. Chi. & N. W. Ry. Co.

• Citation: 39 N.W. 912,75 Iowa 597
• Parties: RHINES v. CHICAGO & N. W. RY. CO.
• Decision Date: 23 October 1888
• Court: United States State Supreme Court of Iowa

75 Iowa 597

39 N.W. 912

RHINES

v.CHICAGO & N. W. RY. CO.

Supreme Court of Iowa.

October 23, 1888.

Appeal from district court, Tama county; L. G. KINNE, Judge.

Action by Jackson Rhines against the Chicago & Northwestern Railway Company to recover double the value of two horses which plaintiff alleges were killed on defendant's railway track, by a passing train, at a point where it had the right to fence its track against live-stock running at large, but where it had failed to maintain a fence sufficient for that purpose. Verdict and judgment for plaintiff. Defendant appealed.

BECK, J., dissenting.

Hubbard & Dawley, for appellant.

W. H. Stivers and J. G. Strong, for appellee.

REED, J.

1. The injury occurred in defendant's yard, at Tama City. The yard was inclosed by a fence, which, as originally constructed, was sufficient to turn live-stock. The railway was intersected immediately west of the yard by one of the streets of the town, and in the original construction of the road a cattle-guard was built in the track at that point, but it was afterwards planked over. An opening, about 15 feet in width, had also been made in the fence on the north side of the yard some time before the injury, and this remained open at the time. The horses entered the yard either through this opening or at the unguarded street crossing. Plaintiff's theory is that they entered through the opening. True, it is not expressly alleged in the petition that that was the point of entrance. But it is alleged that the injury was occasioned by defendant's failure to maintain a sufficient fence, and the damages sought to be recovered is double the value of the property; and if the street crossing had been the place of entrance, the injury would have been occasioned, not by the failure to maintain a sufficient fence, but by the failure to maintain a cattle-guard, and in that case plaintiff would not have been entitled to recover more than the actual damages. Moriarty v. Railway Co., 64 Iowa, 696, 21 N. W. Rep. 143. The court instructed the jury, in effect, that plaintiff was not entitled to recover unless he had proven that the animals entered the yard through the opening. The verdict of the jury then necessarily implies a finding that the animals entered the yard through the opening; and the first question argued by counsel is whether that finding is supported by the evidence. The recovery, it is proper to say, was for double the value of the animals. There was no direct evidence as to which was the place of entrance, but plaintiff sought to establish his theory by the circumstances. It was proven that the horses went upon the track from the north, (which was the side towards the opening,) at a point about 300 feet from the opening and about 1,000 feet from the street crossing; but they could not be tracked from that point to either the crossing or the opening, and they could have reached it as readily from the one as the other. The question, then, is not as to what facts were proven, for as to them there was no conflict or dispute, but is whether the conclusion essential to the establishment of plaintiff's claims for double damages can be drawn from them. When the facts and circumstances from which that conclusion must be deduced, if at all, are examined, all that can be...