Campbell v. Iowa Central Railway Co.

Bishop, J. i. Private cattle guards, I. Plaintiff owns a farm through which passes the line of defendant’s railway. . For many years a private crossing over the track, protected by wing fences and cattle guards, had been maintained by the defendant company for the benefit of plaintiff. Plaintiff’s mare in question passed over the cattle guard, and while upon the inclosed right- of way was struck by a passing train and killed. Under the pleadings and upon the trial the primary issue was as to the sufficiency of the cattle guard, and this issue was submitted to the jury under instructions which are not the subject of criticism. As we understand it, the contention of appellant is that the verdict, involving, of necessity, a -finding that the guard was insufficient, was not warranted by the evidence. We are not disposed to share in this view. The duty incumbent on the railway company was to maintain' a good and sufficient guard. This does not mean one that may not under any circumstances be crossed by an animal, but, rather, one that is reasonably adápted to the intended purpose. Here the guard constructed between the rails- was made of slats or rods, on which were placed a succession- of rings. When [250] stepped upon, the loose rings made the footing uncertain; also the movement thereof resulted in a rattling noise, calculated to produce fright. This device, it appears, is a new one, and in use by no other company. On either side of the rails there was a piece of sheet iron, set at close intervals-with spikes. There was some testimony tending to prove that at the time in question such spikes, in greater or less number, had been broken off. It is not known whether plaintiff’s mare passed over the guard between the rails, or at one side thereof. Whatever may be the fact as to that,, it is clear that the whole'situation was one proper to go to-the jury. The record is such that a finding might be made-that the one device was insufficient to reasonably accomplish, the intended purpose, or that the other device was defective,, in that it had been allowed to get out of repair. Either condition being found, would support ,a verdict. Timins v. Railway, 72 Iowa, 94; Downing v. Railway, 43 Iowa, 96; Smead v. Railway, 58 Mich. 200 (24 N. W. Rep. 761); Railway v. Kneadle, 94 Ind. 454. 2. Damages: evidence. II. Plaintiff was allowed to prove, over the objection-of defendant, what was the value of the mare killed, as a brood mare, and also, as affecting such value, what was the character of the foals which had been produced' by her. - In this there was no error. One who-has stock killed under the circumstances presented is not limited in his recovery to the average value of such stock in general. The inquiry in each case must be directed to the value of the particular animal, and certainly where, as in this case, the animal possessed a . special value because of her breeding-qualities, that may be shown. And we know of no more-definite and certain way to proceed in demonstration of her value-than by taking note of the number and character of the foals produced by her. [251] 3. Double verdict^' [250] III. The claim of plaintiff was for double damages,, the defendant having failed to pay in accordance with a notice and affidavit of loss served upon it as provided for251 by tbe statute. Tbe record makes it appear that the jury came into court with a verdict in the sum of $110. “ Upon inquiry by the court, iall jurors stated .that the amount of the finding was the reasonable value of the mare killed, and was not double damages. Not being in accordance with the instructions of the court as to double recovery, the jurors were permitted to retire to their room to correct their verdict, which they did, and returned their verdict for plaintiff in ;the sum of $220.” This action of the court is presented as involving error. We are not disposed to so regard it. Plaintiff was entitled to a double recovery, if he was entitled to recover a.t all. The inquiry of the court made it dear that the jury had overlooked the instruction having reference to double recovery, and the effect of what was done was simply to correct the oversight, and give plaintiff that to which, in view of the finding in his favor, it was his undoubted right to recover. This conclusion finds support in the following authorities: Bank v. Gifford, 79 Iowa, 300; Judge v. Jordan, 81 Iowa, 519; Johnson v. Rider, 84 Iowa, 50; 22 Ency. Pl. & Pr. 968, and eases dted. Other errors assigned need not be discussed. We have examined the record with respect to each thereof, and find nothing to justify a reversal. The judgment should be, and is, AEEIRMED.