Van Slyke v. The Chicago, St. Paul And Kansas City Railway Company

• Decision Date: 15 May 1890
• Citation: 43 N.W. 396,80 Iowa 620
• Parties: VAN SLYKE v. THE CHICAGO, ST. PAUL AND KANSAS CITY RAILWAY COMPANY
• Court: Iowa Supreme Court

43 N.W. 396

80 Iowa 620

VAN SLYKE v. THE CHICAGO, ST. PAUL AND KANSAS CITY RAILWAY COMPANY

Supreme Court of Iowa, Des Moines

May 15, 1890

Decided October, 1890

Appeal from Butler District Court.--HON. JOHN C. SHERWIN, Judge.

ACTION to recover double the value of a mare alleged to have been killed by defendant in operating its railway. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.

AFFIRMED.

A. J Baker, for appellant.

C. A L. Roszelle and J. H. Scales, for appellee.

OPINION

ROBINSON, J.

A mare owned by plaintiff, of the value of ninety dollars, was found dead near the railway of defendant, at a place where there was no fence, but where the right to fence existed. Plaintiff claims that the death of the animal was caused by a train of defendant; that he served the defendant with the statutory notice and affidavit of such death more than thirty days before this action was commenced; and that it is liable for double the value of the animal by reason of its neglect to pay the value thereof. The verdict and judgment were for the sum of one hundred and eighty dollars.

I. Appellant contends that there is no evidence of any contact or collision of the mare with the train; that the evidence shows that there could not have been such a collision; and that the judgment was erroneous. The cases of Asbach v. Railway Co., 74 Iowa 248; Rhines v. Railway Co., 75 Iowa 597; Brockert v. Railway Co., 75 Iowa 529, are cited in support of its claims. A train of the defendant passed over its track at the place in question at about 8:40 o'clock in the morning of November 19, 1888; about two hours later plaintiff received some notice in regard to the mare from a section boss of defendant, and in a short time went to the place where she was lying, and found her dead. The section boss and others were there. The course of the track at that place was from northwest to southeast, and the mare was lying southwest of it, thirty or forty feet from the right of way. Her right hind leg was broken above the hock, and just below the stifle. No bruises were noticed, but some hair was off the leg and right flank. Upon the track near by were several hoof-prints. Southwest of and twenty feet from the track was a ditch eighteen inches wide, and twenty-two inches deep. Between the track and the ditch was some hair, and also nearer the ditch than the track was a hoof-print. In the ditch there was a hoof-mark, and two or three feet southwest of it were indications that an animal had fallen there. From that point to the spot where the animal was lying there was a broad trail, which appeared as though made by dragging the mare from the spot where there were indications that she had fallen to the place where she was found, but there was no evidence that the mare had struggled along the trail. Of that trail plaintiff testified as follows: "The path was just about the ordinary length of a horse, dragged bodily; not lengthwise, but bodily. From the place she struck there was not a hoof-print, nor any kind of a mark, that would show she had struck going from the place to where she was." The mare was nervous, and afraid of trains. She was one of nine horses and colts in the pasture, where she was found the morning she died.

The defendant insists that the death of the mare may have resulted from her slipping into the ditch while running perhaps in play, with the other horses and clots; and that such a supposition is fully as reasonable as the one advanced by plaintiff, and adopted by the jury. Hence that, under the doctrines announced in Asbach v. Railway Co., supra, the verdict was contrary to the evidence. We do not think the claim of appellant is well founded. There is no evidence that the mare had been running. She was "a low, blocky built" animal, thirteen years old, blind in one eye, and with foal. The hoof-marks indicated that she was on the railway track, and thence jumped or was thrown, about twenty feet, to the ditch. The hair found between the track and ditch is some indication that she was struck on the track. Nothing indicated a struggle at the ditch, nor at the place where she must have fallen, just beyond. Ordinarily, the mere breaking of a leg would not cause the death of such an animal until after the lapse of considerable time, if at all. But the evidence in this case shows that the mare probably died where she fell near the ditch, and within a short time thereafter, if not instantly, and almost without a struggle. The most reasonable and satisfactory conclusion to be deduced from these facts is that the mare was frightened by the train of defendant, and jumped from the track, or was struck and thrown from it by the engine, and...