Bennett v. Wabash, St. Louis & Pacific R'y Co.

Seevers, J. — There was a fence constructed at the place where the stock was killed, but the plaintiff claimed it was [356] ■nota lawful fence, that it had, become opt of repair, and was insufficient to restrain stock. The court gave proper instructions to the jury as to the right; of the defendant to fence its track; and its responsibility, if it failed to do so; and also instructed the jury that if the fence became out of repair, and thereby .the stock was killed-, yet the defendant was not liable, unless it' had' knowledge of 'its condition, or the fence had been out of repair for such a length of time that by the exercise of reasonable care and diligence- the defendant could or should'.have known it was out of repair and ■ insufficient. There was evidence to warrant the givipg of the instructions just stated. If they were excepted .to, defendant has failed to .assign the same as error, and they therefore must be regarded as the law of the case. Counsel insist, as we understand him, that the evidence of' the"condition of the fence, and the length of time it was in bad condition, was insufficient to warrant the_finding of the jury.- But'we think otherwise. It is unnecessary to set out the evidence as contained in the amended abstract.' It'is deeified sufficient to say that the evidence clearly tends to show the essential facts; and we think it fully sustains the finding of- the jury. Counsel insists that if the road has been fenced, and the fence gets out of repair, ahd,' because of such want of repairs, stock gets on the track and are killed, double damages cannot be recovered. The argument being that it is the failure to fence only which gives the fight to-such damages.' Code, § 1289. But we' think the only proper construction of the statute is that, in order to .escape liability, the company must not only fence, ,bjit keep the-road sufficiently fenced: and this has been more than once ruled. Aylesworth v. C., R. I. & P. R. R. 30 Iowa, 459; Perry v. D. S. W. R. R. Co., 36 Id., 102; McCormick v. C., R. I. & P. R. R. Co., 41 Id., 193. Affirmed.