Schmitt v. Chicago, St. Paul & Kansas City Railway Co.

Granger, J. We do not understand appellant to claim that the colts were killed because of failure to construct a fence, but because of failure to properly maintain a fence after it was constructed. It is not so clear that there was not a purpose to claim that there never was a sufficient fence constructed. The language of the petition is: “ That said colts escaped 427 from plaintiff’s possession and premises, and were given access to defendant’s railway track by reason of the failure of defendant company to maintain and keep in repair along said track a good, substantial, sufficient, and lawful fence, as provided by law.” The answer is a denial. The only material facts shown by the evidence on the part of the plaintiff, are that the colts went onto defendants right of way, and were killed by a locomotive. Without proof of other facts, the right of recovery is just as complete without as with the proof as to the fence, the pasture, and the colts being therein. If, without such facts, they went onto the right of way, and were killed, because of defendant’s negligence, it is liable. When reduced, it is a case in which plaintiff is asking to recover merely by showing the destruction of his property on the right of way. The court, by taking the case from the jury, held that there could be no recovery on such a showing. The holding is in precise accord with that in Wall v. Railway Co., 89 Iowa, 193 (56 N. W. Rep. 436). That was an action under Code, section 1289, to recover for a colt killed on defendant’s right of way for a failure to fence where it had the right to. The court in that case gave an instruction that, for plaintiff to recover, it was necessary to prove the injury to, or destruction of his property, The instruction was held erroneous, and the case refers to Manwell v. Railway Co., 80 Iowa, 662 (45 N. W. Rep. 568), in which the question is elaborated, and where the facts differ so that the negligence charged is not for a failure to fence, but for a failure to keep it in proper condition; so that we have the rule as announced under different conditions, or facts. The Manwell Case states some of the facts essential to be proven to warrant a recovery, and one of them is “that the corporation was engaged in operating a railway, and that the stock was killed by 428 reason of its failure to fence at a point where the right to fence existed.” In this case it appears that the railway was operated, but not that the stock was killed for any failure in regard to the fence. The rule in the Manwell Case is applied to a failure to keep the fence in condition, and the Wall Case, as we have said, to a failure to fence, so that the case is clearly within the rule. The Manwell Case reviews the other cases, and gives a conclusion as a faii- construction of the several provisions of the statute; and, as followed by the Wall Case, we have the rule conclusively settled, unless the cases are to be overruled. The question is one of difficulties and doubt. The particular statute has been the subject of repeated adjudications, and in some of the cases there may be language, as applied to different facts, not entirely harmonious, but we discover no apparent conflict as to conclusions. We may state it as our conclusion in this case, that in actions of this character it is the duty of the plaintiff to allege, as was done in this case, and also prove prima facie, the failure of the company, on which reliance is placed for a recovery. There was no error in directing a verdict, and the judgment is affirmed.