same, intending to jump therefrom, when such engine or car is in motion, he shall be guilty of a misdemeanor and be punished by fine not exceeding one hundred dollars, or by imprisonment not exceeding thirty days.

Where the recovery for injury received while getting off of a train while in motion is sought to be defeated on the ground that such act was unlawful and constituted contributory negligence, plaintiff may, under allegation of freedom from contributory negligence, prove that the act was with the consent of the conductor. Ruben v. Central Iowa R. Co., 74-732.

It being a misdemeanor by this section for a person jump to from a train while in motion, such act would defeat recovery for injuries received thereby, unless the act was done by the direction of the conductor. Herman v. Chicago, M. & St. P. R. Co., 78-161.

5204. Uncoupling locomotive or cars. 19 G. A., ch. 112, 1. If any person shall wilfully and maliciously uncouple or detach the locomotive or tender or any of the cars of any railroad train, or shall in any manner aid, abet, or procure the doing of the same, such person shall be punished by imprisonment in the state penitentiory not exceeding five years, or by fine not exceeding one thousand dollars, or both, at the discretion of the court.

5205. Seizing and running locomotive. 19 G. A., ch. 112, 2. If any person shall unlawfully seize upon any locomotive, with or without any express, mail, baggage, or other car attached thereto, and run the same upon any railroad, or shall aid, abet or procure the doing of the same, such person shall be punished by imprisonment in the state penitentiary not exceeding ten years, or by fine not exceeding two thousand dollars, or both at the discretion of the court.

5206. Wrongfully taking or running hand-car. 19 G. A., ch. 112, 3. If any person shall, without permission from the proper authority, wrongfully take or run any hand car upon any railroad in this state, he shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined not more than one hundred dollars, or imprisoned not more than thirty days, at the discretion of the court: Provided, that if by such unlawful use of any hand-car any locomotive or car is thrown from the track, or a collision produced, or any person injured thereby, he shall, on conviction, be imprisoned in the penitentiary for a term of not more than five years; and provided further, that if by reason of such unlawful use of any hand-car any person is killed, such person so offending shall be deemed guilty of manslaughter.

5207. Interference with air-brake or bell-rope. 19 G. A., ch. 112, § 4. If any person not an employee upon the railroad shall wrongfully interfere with any automatic air-brake or bell-rope upon any railroad car, or use the same for the purpose of stopping or in any way controlling the movement of the train, [he] shall be subject to the penalty provided in section three of this act [ 5206] for the unlawful running of a hand-car on any railroad; and any conductor or brakeman on a railroad train shall have power to arrest such person so offending and deliver him to some peace officer on the line of the railroad.

INJURIES TO OR OBSTRUCTION OF ROAD.

5287. How punished. 3979. If any person maliciously injure, remove, or destroy any bridge, rail, or plank road; or place or cause to be placed any obstruction on such bridge or road; or wilfully obstruct or injure any public

road or highway; or maliciously cut, burn, or in any way break down, injure, or destroy any telegraph post, or in any way cut, break, or injure the wires or any apparatus thereto belonging, he shall be punished by imprisonment in the penitentiary not more than five years, or by fine not exceeding five hundred dollars and imprisonment in the county jail not exceeding one year. [R., § 4320; C., '51, § 2680.]

Where a highway is duly laid out, the fact that it is not yet traveled will not prevent the act of obstructing it from being criminal. Harrow v. State, i G. Gr., 439.

Error in the description of the highway, so long as its identity is not doubtfül, will not vitiate a conviction for obstructing it. Ibid.

A party obstructing a highway, by fence or otherwise, may be punished under the provisions of 5470, although the road supervisor might, under other provisions of the statute, rightfully remove the obstruction. State v. Berry, 12-58.

Under an indictment for obstructing a "county road," a road established by statute only can be shown. Evidence of a highway by use or prescription is not admissible. State v. Snyder, 25–208.

5298. The same. 3990. If any person or persons shall wilfully and maliciously place any obstruction on the track of any railroad in this state, or remove any rail therefrom, or in any other way injure such railroad, or do any other thing thereto, whereby the life of any person is or may be endangered, he or they shall be punished by confinement in the state penitentiary for life, or for any term not less than two years. [R., § 4331.]

It being found that defendant knew the railroad was being used for the purpose of carrying freight and passengers, and intended to place the obstruction on the road, malice will be implied. State v. Hessenkamp, 17–25.

The fact that the land where the obstructions were placed on the track belonged to defendant, and the railroad company had no right of way over it, or had violated the covenants of its contract with respect thereto, would be no defense in an action under this section. Ibid.

In a prosecution for obstructing the track of a railway, it is not necessary to allege or prove that the obstruction did actually obstruct and hinder trains. State v. Clemens, 38–257.

See, also, 5287 and notes.

CARE OF ANIMALS IN TRANSPORTATION.

5352. Cruelty Prohibited. 4031. If any person torture, torment, deprive of necessary sustenance, cruelly beat, mutilate, cruelly kill, or overdrive any animal; or unnecessarily fail to provide the same with proper food, drink, shelter, or protection from the weather; or cruelly drive or work the same when unfit for labor; or cruelly abandon the same; or carry or cause the same to be carried on any vehicle, or otherwise, in an unnecessarily cruel and inhuman manner, he shall be punished by imprisonment in the county jail not exceeding thirty days, or by fine not exceeding one hundred dollars. [R., § 4358; C., '51, § 2716; 13 G. A., ch. 176, §§ 1, 2.]

5353. Duty to water and feed. 4032. No railway company in this state, in the carrying or transportation of cattle, sheep, swine, or other animals, shall confine the same in cars for a longer period than twenty-eight consecutive hours, unless delayed by storm or other accidental cause, without unloading for rest, water, and feeding, for a period of at least five consecutive hours. In estimating such confinement, the time the animals have

been confined without such rest on connecting railways from which they are received shall be computed, it being the intention of this section to prevent their continuous confinement beyond twenty-eight hours, except upon contingencies herein before stated; and animals unloaded for rest, water, and feeding, under the provisions of this section, shall be properly fed, watered, and sheltered during such rest by the owners or persons in custody thereof, or in case of their default in so doing, then by the railway company transporting them, at the expense of said owners or persons in custody thereof, and said company shall have a lien upon such animals for food, care and custody furnished, and shall not be liable for any detention of such animals authorized by this section. Any railway company, owner or custodian of such animals who shall fail to comply with the provisions of this section, shall, for each and every such offense, be liable for, and forfeit and pay a penalty of not less than one hundred and not greater than five hundred dollars. But when such animals shall be carried in cars in which they shall and do have proper food, water, space, and opportunity for rest, the foregoing provisions in regard to their being unloaded, shall not apply. [13 G. A., ch. 176, 23.]

TRANSPORTATION OF GAME UNLAWFULLY KILLED.

5392. When killing prohibited. 17 G. A., ch. 156, § 2; 18 G. A., ch. 193; 20 G. A., ch. 67. It shall be unlawful for any person within the state to shoot or kill any pinnated grouse or prairie chicken, between the first day of December and the first day of September next following; any woodcock, between the first day of January and the tenth day of July; any ruffed grouse or pheasant, wild turkey or quail, between the first day of January and the first day of October; any wild duck, goose, or brant, between the first day of May and the fifteenth day of August; or any wild deer, elk or fawn, between the first day of January and the first day of September.

5396. Shipping out of State. 17 G. A., ch. 156, § 6. It shall be unlawful for any person, company, or corporation at any time to ship, take, or carry out of this state any of the birds or animals named in section two of this act [§ 5392]; but it shall be lawful for any person to ship to any person within this state, any game birds named in said section two, not to exceed one dozen in number in any one day, during the period when by this act the killing of such birds is not prohibited: Provided, he shall first make an affidavit before some person authorized to administer oaths, that said birds have not been unlawfully killed, bought, sold, or had in possession, are not being shipped for sale or profit, giving the name and postoffice address of the person to whom shipped, and the number of birds to be so shipped. A copy of such affidavit, indorsed, "A true copy of the original," by the person administering the oath, shall be furnished by him to the affiant, who shall deliver the same to the railroad agent or common carrier receiving such birds for transfortation, and the same shall operate as a release to such carrier or agent from any liability in the shipment or carrying of such birds. The original affidavit shall be retained by the officer taking the same, and may be used as evidence in any prosecution for violation of this act. Any person swearing falsely to any material fact of said affidavit, shall be guilty of perjury, and punished accordingly.

5398. Penalty against carrier. 17 G. A., ch. 156, § 8. If any railway, express company, or other common carrier, or any of their agents or servants, knowingly receive any of the above mentioned birds or animals for transportation or other purpose, during the periods hereinbefore limited and prohibited, or at any other time except in the manner provided in section six of this act [§ 5396], they shall be punished by a fine of not less than one hundred nor more than three hundred dollars, or by imprisonment in the county jail for thirty days, or by both such fine and imprisonment.

TRANSPORTATION OF DISEASED CATTLE.

5418. Penalty. 4058; 21 G. A., ch. 156, § 2. Any person or persons driving any cattle into this state, or any agent, servant, or employee of any railroad or other corporation who shall carry, transport or ship any cattle into this state, or any railroad company, or other corporation or person who shall carry, ship or deliver any cattle into this state, or the owners, controllers, lessees, or agents or employees of any stock yards, receiving into such stock yards or in any other inclosures for the detention of cattle in transit, or shipment, or reshipment or sale, any cattle brought or shipped in any manner into this state, which at the time they were either driven, brought, shipped, or transported into this state, were in such condition as to infect with or to communicate to other cattle, pleuro-pneumonia, or splenitic or Texas fever, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than three hundred dollars and not more than one thousand dollars, or by both fine and imprisonment in the county jail not exceeding six months, in the discretion of the court. [12 G. A., ch. 185, § 1, 3, 4.]

5419. Action for damages.

4059; 21 G. A., ch. 156, § 3. Any person who shall be injured or damaged by any of the acts of the persons named in section four thousand and fifty-eight [3 5418], and which are prohibited by such section, in addition to the remedy therein provided, may bring an action at law against any such persons, agents, employees or corporations mentioned therein, and recover the actual damages sustained by the person or persons so injured, and neither said criminal proceedings nor said civil action, in any stage of the same be a bar to a conviction or to a recovery in the other. [Same, ?? 2, 4.]·

The repeal and re-enactment of this section without a special saving clause did not (under Rep. 759, 349, subd. 1) release liability for penalties already incurred. Kemmish v. Ball, 30 Fed. Rep., 759.

This section is not unconstitutional as an attempted regulation of interstate commerce, nor is it open to the objection that it denies any rights and privileges to citizens of other states. Kimmish v. Ball, 129 U. S., 217.

AUTOMATIC COUPLERS AND BRAKE.

Safety couplers on new cars. *23 G. A.. ch. 18. § 1. It shall be unlawful for any corporation, company or person operating any line of railroad in

* The title of this act is "An act requiring all railroads, corporations, companies and persons, operating a railroad and doing business in Iowa, to equip all their engines and cars with proper, efficient and safe automatic couplers and brakes, and for prescribing penalties for failure thereof."

this state, any car manufacturers or transportation company using or leasing cars, to put in use in this state any new cars or any cars that have been sent in to the shop or shops for general repairs, or whose draft rigging has to be repaired with a new draw bar or bars, that are not equipped with safety or automatic couplers to draw bars, such as will not necessitate the going between the ends of the cars to couple or uncouple them, but operated from the side of the car.

On all cars; when. 23 G. A., ch. 18, 2. After January first, 1895, it shall be unlawful for any corporation, company or persons operating a railroad, or any transportation company using or leasing cars of any description and used in the commerce of the country, or in the construction of railroads, to have upon any railroad in Iowa for use in transportation of freight or passengers any car that is not equipped with such safety automatic coupler as provided for in section one of this act.

Power brakes on locomotives. 23 G. A., ch. 18, 3. It shall be unlawful for any corporation, company or person operating any line of railroad in this state, to use any locomotive engine upon any railroad or in any railroad yard in this state after the first day of January, 1892, that is not equipped with a proper and efficient power brake, commonly called a driver brake."

Power brakes on trains. 23 G. A., ch. 18, 4. It shall be unlawful for any corporation, company or person operating a line of railroad in this state, to run any train of cars after the first day of January, 1893, that shall not have in that train a sufficient number of cars with some kind of efficient automatic or power brakes so that the engineer upon the locomotive car can control the train without requiring brakemen to go between the ends or on the top of the cars to use, as now, the common hand brake.

Reports as to cars. 23 G. A., ch. 18, 5. Every railroad corporation, company or person operating a railroad in this state, and every person or persons using or leasing cars in the transportation business, or in building railroads, shall, and are by this act required to include in their annual report to the state railroad commissioners the number of locomotive engines and cars used in this state and what number is equipped with automatic power brakes and what number of cars equipped with automatic safety couplers and the kind of brakes and couplers used and the number of each kind, when more than one kind is used.

Penalty. 23 G. A., ch. 18, 6. Any corporation, company or person operating a railroad in this state, and using a locomotive engine or running a train of cars or using any freight, way or other car, contrary to the provisions of this act, shall be deemed guilty of a misdemeanor, and shall be subject to a fine of not less than five hundred dollars or not more than one thousand dollars, for the benefit of the school fund, for each and every offense. provided the penalties on this section shall not apply to companies in hauling cars belonging to railroads other than those of this state which are engaged in inter-state traffic and any railroad employee who may be injured by the running of such engine, or train or car contrary to the provisions of this law, shall not be considered as waiving his right to recover damage by continuing in the employ of such corporation, company or person running such engine or trains or cars contrary to this law.