Bartlett v. Dubuque & Sioux City Railroad

Wright, J. i. bail“enees." Plaintiff insists that, under the statute, the company is required to build “ cattle guards ” at farm crossings. Ch. 169, 9th General Assembly. Defendant denies this, and maintains," that as the road was fenced, and bars put up at the farm crossings, it is not responsible for injury to stock straying upon the track at such crossing, when the bars were left down by the land owner or other person than the servants or employes of said company. These positions are alike unsound. I. The act of April 8, 1862, chapter 169, section 6, only makes it incumbent on the company to make proper cattle guards on the road where it “enters or leaves improved or fenced land,” and to construct good, sufficient and safe crossings “ where the road crosses any public highway.” The next section makes the company liable for all injuries sustained by reason of a neglect of refusal to comply with the provisions of the preceding ones. There is certainly nothing in these sections requiring the company to make cattle guards at a private crossing. And in" the" absence of such requirement, the company is not bound to make the same. Of course the company might erect these guards at private as well as public crossings; and the failure to do so might,. under some circumstances, be evidence of negligence or want of due care in the duty of so constructing tbe road as to exclude stock from the track. But the right to do it is very different from the duty, and especially when the latter is based upon the language of the statute. We hold, therefore, that the failure by the company to erect cattle guards at a private way does not [193] make it liable as contemplated by tbe sections above quoted. Those sections contemplate the right to recover by proof of the injury, and the neglect or refusal to make the cattle guards or crossings. There is nothing said, however, about a private way, and there is no warrant for extending the language beyond its plain and obvious meaning. The New York act (Laws 1850, 238, § 44) is different in its language from ours. And, therefore, what is said in the case of Brooks v. New York and Erie Railroad Company, 13 Barb., 594, upon the subject, might be conceded (and see Corwin v. Same, 13 N. Y., 42) without in the least conflicting with the views above expressed. 2. •— ness, It only remains to inquire whether the fact that the bars were left down by the land owner or other person than the employés of the company would, as a matter of law, relieve the latter from liability. This question is considered in Russell v. Hawley, infra, and consonant therewith we hold that the company cannot thus shift responsibility. The obligation as to third persons is primarily on the company. Cases may arise where such third persons would be liable and the company not. It is the duty of the company, however, to not only put up the fence but to see that it is kept in repair. If farm crossings are made and bars leading thereto, care must be used that these bars are kept up. That they were left down by the proprietor would not absolve the company from the duty of putting them up. Care and diligence is required, at its hands. If the requisite amount of care is used, and injuries result by the act of the proprietor in leaving down the bars or leaving open a gate, the company might escape liability. Without such care it would be liable. As the defendant’s position denies the liability, if the bars were left down by others, whatever the carelessness or want of attention on the part of the company, it is not sustainable, [194] and all instructions based upon that view were correctly refused. The case of the Great Western Railroad Company v. Helm, 27 Ill., 198, is very briefly reported, and yet it is there held that in order to excuse the company, it must be without fault in relation to leaving down or open the bars or gate at the farm crossing. In such cases the company is held to more than the least care, and as a consequence is liable for less than gross negligence. If the road is fenced and so kept, or if it should be down or open without fault on the part of the company, then as stock on the track would be there without right or as trespassers, the company would only be liable for gross negligence. The doctrine, as laid down in Alger v. Mississippi & Missouri Railroad Company, 10 Iowa, 268, is, that when the road is properly fenced the company is liable for gross negligence. But to apply this rule in measuring the company’s liability, the road must not only be fenced but kept so. And if not so kept because of the company’s want of care or negligence, it would be liable for less than gross negligence. The case of the Indianapolis, Pittsburg & Cleveland Company v. Shimer, 17 Ind., 295, differs from this in the very essential fact that the stock belonging to the tenant of the land owner passed on to the track by reason of his own negligence to' maintain bars erected by the owner for his own convenience, and used by the tenant with the consent of the company. The case of .the Terra Haute & Wabash Railroad Co. v. Fowler, 22 Ind., 316, does not conflict with the views above expressed, for there the fence was thrown down by third persons without the authority or knowledge of the company. The company exercised reasonable care and diligence, and the cattle strayed upon the track before the company had notice of the injury to the fence. The only remaining case cited by appellant’s counsel, is [195] The Indianapolis & Cincinnati Railroad Company y. Adkins, 23 Inch, 340. This case is -unquestionably correct, so far as it gives the rule for stock belonging to the owner of the land. Its correctness, so far as it attempts to lay down a general rule touching the property of third persons, may admit of more doubt. (See prior cases in that court, particularly New Albany and Salem Railroad Company v. Maiden, 12 Id., 10; Same v. Pace, 13 Id., 411.) But however this may be, several considerations seem to distinguish the case from this. In the first place, the statute of Indiana did -not require the company to grant or construct a private way over the road or through its fence. In the next place, the plaintiff’s stock was trespassing, when it passed on to the land through which the road was constructed. And, finally, the owner knew that the bars were down; that they were erected as a private way for tbe accommodation of tbe land owner, and that bis. stock was liable to pass to and upon tbe track. Affirmed.