McCormick v. C., R. I. & P. R.

Beck, J. — 1. railroads: duty to fence. I. There was evidence tending to show that defendant’s railroad had been fenced, but the fence, three or '^ays- PrÍOT to the killing of the hogs, had destroyed by fire set by passing trains. The court instructed the jury that defendant was liable for the value of the hogs, if they were killed at a place where defendant had a right to fence it§ .road, “unless the owner of the, hogs willfully or wrongfully placed them oh the track of the railroad.” The rule as stated by the court would be unobjectionable, if applied to a case of failure to fence a railroad track.. But the case before us is one wherein defendant is sought to be held liable for failure to keep in repair a fence built, or to rebuild a fence that has been 1 destroyed. It is the duty of the railroad company to build proper fences as required .by law. When this duty has been performed it is liable, in case of the destruction of the fence, for a failure to exercise reasonable and ordinary diligence and care in rebuilding it. Reasonable time must be allowed for performing the duty in this respect. Perry v. Dubuque & S. W. R. Co., 36 Iowa, 102; Aylsworth v. The Chicago, R. I. & P. R. Co., 30 Id., 459. The instructions failed to present this rule to the jury; it was involved in one asked by defendant and ought, in a proper form, to have been given. The jury were, therefore, not fully and properly instructed upon a question of law arising in the case. 2i _. negligence. II. A portion of the damages claimed resulted from fires caused by defendant’s engines, prior to the time the provisions upon that subject found in Code, § 1289, went into effect. Upon this branch of this case, the court instructed the jury as follows: [196] “3d. Negligence in permitting fire to escape from a locomotive or a passing train may be shown by showing the absence of a spark arrester, the nse of an excessive amount of steam, an extraordinarily heavy train, the stirring of the fire in the engine at a peculiar place of peril, the repeated and unusual" dropping of coals, or excessive and continued emission of spai’ks, and also by the further fact that the rail-l’oad company neglected to remove combustible matter from the sides of its ti’ack.” The effect of this instruction is, that the facts and circumstances enumerated, or any one of them, as a matter of law, are sufficient to charge defendant with negligence. All or each of them may be considered by the jury for the purpose „of detennining whether proper care was exercised, but the acts or omissions enumerated, in themselves, would not be sufficient to charge defendant with negligence. It might not be negligence in defendant to draw “an extraordinary heavy train,” or to omit the removal of “ combustible matter from the sides of its track.” If proper prudence and cai’e does not forbid the one or require the other, defendant would not be charged with negligence. The jury were required to determine the question of negligence from the facts proved. Garrett v. C. & N. W. R. Co., 36 Iowa, 121; Kuse v. C. & W. W. R. Co., 30 Id., 78. The instruction is erroneous. Other questions presented in this case need not be considered as, for the errors pointed out, the judgment of the Circuit Court must be Reversed.