The act of the owner in permitting stock to run at large is not evidence of contributory negligence. Whitbeck v. Dubuque & P. R. Co., 21-103; Evans v. Burlington & M. R. R. Co., 21-374; Stewart v. Burlington & M. R. R. Co., 32-561; Searles v. Milwaukee & St. P. R. Co., 35-490. The liability of the company for stock killed where it has a right to fence exists regardless of the negligence of the owner. It is only upon a showing that the injury is the result of the wilful act of the owner or his agent that the company is excused from liability. Spence v. Chicago & N. Ŵ. R. Co., 25-139. Where the owner knew that his animals had got upon the track, and had the opportunity and power to prevent injury thereto, but wilfully refused to do so, held that he could not recover. Moody v. Minneapolis & St. L. R. Co., 77-29. When the land owner in the evening opened the wire fence along the right of way at a place which was not a crossing in order to put his animals into a field, and during the night the animals escaped at the same place upon the right of way and some of them were killed, held, that the company was not liable, and if the fence was insufficient at that place by reason of the lowest wire being too high from the ground, plaintiff could not recover after having himself taken down the wire and replaced it in its original position. Davidson v. Central Iowa R. Co., 75-22. While there may be facts justifying the opening of the fence along the right of way at a place not a crossing, yet where plaintiff does not make the claim in his petition as a ground of negligence on part of the company that the crossing is defective, he can not afterwards show that there was a ditch in such crossing as a reason for taking down the fence. Ibid. In a particular case, held that it did not appear that the employees of a railway were negligent, after discovering animals which had come upon the track through the fence, in not avoiding injury to such animals. Ibid. It is contributory negligence on the part of the owner of cattle to allow them to frequent places of danger such as depot grounds. Smith v. Chicago, R. I. &. P. R. Co., 34-506. But where plaintiff allowed a blind horse to run at large and it was killed by defendant's train on its depot grounds, held, that the question whether plaintiff was guilty of contributory negligence was for the jury, and that such act was not, as a matter of law, negligence sufficient to defeat recovery. Hammond v. Sioux City & P. R. Co., 49–450. The fact that a party knowingly allows his animals to be upon and frequent depot and station grounds does not necessarily constitute contributory negligence such as to defeat recovery for injury to such animals. Miller v. Chicago & N. W. R. Co., 59–707. That a stock owner allows his stock to run at large with the knowledge that a crossing is dangerous, and that his animals frequent such crossing, does not constitute negligence even though the statute makes the owner liable for all damage resulting from his animals being at large. Kuhn v. Chicago, R. 1. & P. R. C., 42-420. Where the owner of stock turned it loose upon the portion of his farm which was fenced, and it broke through the fence and strayed upon the railroad track, and it did not appear that the fence was not reasonably sufficient, held, that plaintiff, having no knowledge that his animals had escaped until they were killed, could not be considered guily of contributary negligence. Moriarity v. Central Iowa R. Co., 64-696. Stock unlawfully at large. The fact that sheep and swine are not allowed to run at large will not defeat the owner's right to recover for injuries to such animals. Spence v. Chicago & N. W. R. Co., 25-139; Stewart v. Chicago & N. W. R. Co., 27-282; Fernow v. Dubuque & S. W. R. Co., 22–528; Lee v. Minneapolis & St. L. R. Co., 66–131. Where animals, allowed to run at large in violation of a city ordinance, come upon the track, they are trespassers, and the company owes no duty with reference to them, and is not liable for injuries received by them, even though occasioned by a train running at greater speed than eight miles per hour, it not appearing that such improper speed was wanton or reckless. Van Horn v. Burlington, C. R. &. N. R. Co., 59-33; S. C., 63–67. To defeat recovery from a railroad company for killing on its depot grounds an animal which it is unlawful to allow to run at large, it is necessary to show that the animal is at large by the owner's sufference. Pearson v. Milwaukee & St. P. R Co., 45-497. The fact that plaintiff's horse was at large in the night-time on the premises of another in violation of the herd law in force in the county, and was killed by defendant's train without fault or negligence of defendant, at a point where defendant had a right to fence, but did not, held not sufficient to defeat plaintiff's right of recovery. Krebs v. Minneapolis & St. L. R. Co., 64-670. It is not contributory negligence sufficient to defeat the owner's right of recovery that the animal is at large within the city limits in violation of an ordinance of the city, if it is at large by accident and not intentionally. Doran v. Chicago, M. & St. P. R. Co., 73-115. Setting out fires. The effect of the present statutory provision above referred to is not to make the company absolutely liable for damages from fires set out, but to render the injury prima facie proof of negligence on the part of the company, which may be rebutted by showing freedom from such negligence. Small v Chicago, R. I. & P. R. Co., 50-338; Slosson v. Burlington, C. R. & N. R. Co., 51-294; Libby v. Chicago, R. I. & P. R. Co., 52-92. The negligence of the company is presumed if the fire proceeds from one of its engines, and it is not necessary for the plaintiff in the first instance to prove more that that it did so proceed. Rose v. Chicago & N. W. R. Co., 72-625. In such case the presumption is that the corporation operating the road is guilty of negligence. It is not necessary for plaintiff to allege negligence, nor will such unnecessary allegation of negligence change the rule of proof. Engle. v. Chicago, M. & St. P. R. Co., 77-661. It is sufficient for plaintiff suing in such cases to set forth in his pleading simply the occurrence of the injury. The presumption of liability arising from the occurrence itself is not necessarily overcome by the proof merely that the company was not guilty of negligence in the matters which were the immediate cause of the injury, as permitting combustible material to accumulate and remain on the right of way. The burden of proving such fact is not upon plaintiff even though he may allege it in his petition. Engle v. Chicago, M. & St. P. R. Co., 37 N. W. Rep., 6. This prima facie evidence may be rebutted by defendant, the effect of the statute being simply to change the burden of proof. As to whether the rebutting evidence showing due care, etc., on the part of the company is sufficient is a question for the jury and not for the court. Babcock v. Chicago & N. W. R. Co., 62-593. The good condition of the engine, the diligence of defendant's employees and other facts are evidence of care. When such evidence is introduced on the part of the defendant after the fact of the injury is proven by plaintiff, a conflict in the evidence arises which may be determined by the jury. Ibid. The fact that the right of way is procured from the owner of the land does not preclude recovery of damages for fires set out in the operation of the railway to fences not then built and timber situated a mile from the track. Such damages could not have been considered in estimating damages in proceedings for condemning the right of way. Rodemacher v. Milwaukee & St. P. R. Co., 41-297. A railroad company is liable for damages from fire communicated by its negligence to a building of a third person and from such building to buildings of plaintiff, and negligence of the third person owning the intermediate building in not keeping it in the proper condition will not defeat plaintiff's right to recover. Small v. Chicago, R. I. & P. R. Co., 55-582. Company operating road. The company whose engine sets out the fire is liable for the damages resulting, although it is operating a line owned and used by another company, and the fire originates on the right of way by reason of combustible matter allowed to accumulate thereon by such other company. Slossen v. Burlington, C. K. & N. R. Co., 60-215. Contributory negligence. Since the enactment of the provision relating to liability for damages from fires, contributory negligence of the person injured cannot be shown as a defense. West v. Chicago & N. W. R. Co., 77654; Engle v. Chicago, M. & St. P. R. Co., 77–661; Johnson v. Chicago & N. W. R. Co., 77-666. Prior to the enactment of this statutory provision on the subject it was held that contributory negligence of the owner of property destroyed by fire from the company's engines would defeat his recovery. Kesee v. Chicago & N. W. R. Co., 30-78; Garrett v. Chicago & N. W. R. Co., 36-121. In cases decided after the enactment of this provision it was left undecided whether contributory negligence would defeat recovery and circumstances claimed to indicate contributory negligence were discussed. Ormond v. Central Iowa R. Co., 58-742; Slossen v. Burlington, C. R. & N. R. Co., 60-215. Constitutional. These peculiar provisions as to liability of railway companies for damages from fires are not in conflict with the constitution, being applicable alike to all persons or companies engaged in such business. Rodemacher v. Milwaukee & St. P. R. Co., 41-297. Evidence. The frequent occurrence of fires caused by the same engine on the same trip may be shown for the purpose of proving that it was defective in its construction, or that it was out of repair or negligently handled. Slossen v. Burlington, C. R. & N. R. Co., 60-215; Lanning v. Chicago, B. & Q. R. Co., 68-502; West v. Chicago & N. W. R. Co., 77-654. But, in such a case, it is not competent to show that other fires occurred along the right of way in the same vicinity shortly after the engine passed over the road and before the fire that destroyed plaintiff's property. Bell v. Chicago, B. & Q. R. Co., 64-321. Plaintiff, in introducing evidence to rebut the evidence of the railway company tending to show want of negligence on its part causing fire set out by its locomotives, may do so by facts of a circumstantial character, as it is not usually possible to introduce witnesses who can testify from personal knowledge. Therefore evidence which might not be free from difficulties in other cases, open to clearer proofs, might be considered sufficient. Babcock v. Chicago & N. W. R. Co., 62-593. In an action by the tenant to recover the value of a crop destroyed by fire set out by the company's engines, it appearing that plaintiff did not pay cash rent, held error to refuse to allow plaintiff to be cross-examined as to whether he was to give a share of the grain for rent. Ormond v. Central lowa R. Co., 58-742 Evidence in a particular case held to sufficiently show that the fire causing the damage complained of originated from the defendant's engines. Johnson v. Chicago & N. W. R. Co., 77--666. An instruction that "the fact that defendant set out a fire upon its right of way * * * is not evidence that such fire communicated itself to and burned the house of plaintiff," held to be misleading, for the reason that such fact was properly to be treated as evidence tending to establish the destruction of plaintiff's property by a fire set out by defentant. Fish v. Chicago, R. I. & P. R. Co., 46 N. W. Rep., 998. Ownership of property. Where plaintiff suing to recover for destruction of hay by fire set out by defendant in the operation of its road, showed that such hay was cut and stacked upon land leased by him from the person claiming to be owner thereof, held, that he was entitled to recover without proving title in his landlords, there being no adverse claim made. Johnson v. Chicago & N. W. R. Co., 77-666. Where it appeared that plaintiff had as a trespasser cut and stacked hay upon the land of another which he had no title to, and of which he was not in possession, held, that he could not maintain an action against a railroad company for its negligence resulting in the destruction thereof by fire. Murphy v. Sioux City & P. R. Co. 55–473; Lewis v. Chicago, M. & St. P. R. Co., 57–127; Comes v. Chicago, M. & St P. R. Co., 78–391. Negligence Before the enactment of this statutory provision, it was held that the burden of proof in an action against the company for such damages was upon plaintiff to show negligence of the company, and that proof of the injury alone was not sufficient to make out a prima facie case. Gandy v. Chicago & N. W. R. Co., 30–420; McCummons v. Chicago & N. W. R. Co., 33– 187; Garrett v. Chicago & N. W. R. Co., 36-121. But in such a case, held, that as in the nature of the case plaintiff must labor under difficulties in making proof of the fact of negligence, and as that fact itself is always a relative one, it might be satisfactorily established by evidence of circumstances bearing more or less directly upon the fact of negligence, and which might not be satisfactory in other cases, free from difficulty and open to clear proof. Gandy v. Chicago & N. W. R. Co, 30-420. A party using a dangerous instrument, body or element will be held to use greater care and prudence than when using a less destructive agency. Fire being a destructive element, persons using it are required to exercise all reasonably careful precautions against its spread, and the care and prudence required by law to prevent the spread of fire from a locomotive are not deemed to be exercised unless some proper precautions are used for that purpose. Jackson v. Chicago & N. W. R. Co, 31-176. Ordinary care and prudence requires the use of the best contrivances known, and unless such are used it will be considered negligence; but what amounts to negligence in such cases is a question of fact for the jury. Ibid. Also held, that to allow dried grass, weeds and other matter, the natural accumulations of the soil, to remain upon the right of way, was not negligence per se but that there might be such peculiar or unusual circumstances in a given case as that such acts would amount to negligence in fact, and that when such circumstances existed they might properly be submitted to the jury to establish the fact of negligence. Kesee v. Chicago & N. W. R. Co., 30-78. Also held, that the question of negligence, such as to render the company liable for damages resulting from such fires, was to be determined by the jury, and that it was not proper to enumerate facts and circumstances which as a matter of law would be sufficient to charge the company with negligence. Mc' ormick v. Chicago, R. I. & P. R. Co., 41–193. Personal injuries to plainiff received in passing through a fire set out by defendant's engine, in a reasonable attempt to get horses from a neighbor's barn threatened by such fire, held to be the proximate result of the fire in such way as to render defendant liable therefor. Liming v. Illinois Central R. Co., 47 N. W. Rep., 66. Interest. It is not error to direct the jury to add to the value of the property destroyed six per cent per annum interest from the time of such destruction. Johnson v. Chicago & N. W. R. Co., 77–666. 1973. Fences required. 22 G. A., ch. 30, § 1. All railroad corporations organized under the laws of this State, or any other State, owning or operating a line of railroad within this State, which have not already erected a lawful fence, shall construct, maintain and keep in good repair a suitable fence of posts and barb wire, or posts and boards on each side of the tracks of said railroad within the State of Iowa, and so connected with cattleguards at all public highway crossings as to prevent cattle, horses and other live-stock from getting on the railroad tracks. Said railroad tracks to be fenced by said railroad companies on or before January first, 1890, where the railroads are now built, and within six months after the completion of any new railroads, or any part thereof, the said fences to be constructed either of five barbed wires, securely fastened to posts, said posts to be not more than twenty feet apart, and not less than fifty-four inches in height, or of five boards securely nailed to posts, said posts to be not further than eight feet apart, and said fence to be not less than fifty-four inches in height. Provided, when said railroad corporations, who have now their fences built shall when they rebuild or repair their fences the same shall be built as provided in this act; Provided further, that any other fence which in the judgment of the fence viewers is equivalent to the fence herein provided shall be a lawful fence. Provided however that this act shall not be so construed as to compel a railway company operating a third-class railway to fence its road through the land of any farmer or other person, who by written agreement with said company has waived or may waive the fencing of said road through such land. Provided further however, that at any points where third-class roads are not released by written agreement, from building fence as herein provided for, and fences are built on both sides of railway track at such points, cattle-guards shall be so constructed at such points as to prevent stock from going upon said track so fenced. 1974. Penalty. 22 G. A., ch. 30, § 2. If any corporation or officer thereof or lessee owning or engaged in the operation of any railroad, in this State, neglect or refuse to comply with any provision of section one of this act [§ 1973], such corporation, officer or lessee, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum not exceeding five hundred dollars for each and every offense. And every thirty days' continuance of such refusal or neglect shall constitute a separate and distinct offense within and for the purposes of this act. *Class C railways. 23 G. A., ch. 20, § 1. That section two of chapter thirty of the acts of the Twenty-second general assembly, be amended by adding thereto the following: The time fixed in this act for fencing railways, shall not apply to railway companies owning or operating third-class or class "C" railways, as classified by the railroad commissioners. Such railway shall be fenced as follows: twenty-five per cent of the entire length of the road not including any fencing already done shall be fenced, as herein provided, during the year 1890, and twenty-five per cent of such entire length each year thereafter, until the whole thereof is fenced. Penalties remitted. 23 G. A., ch. 20, § 2. All penalties and fines which have been heretofore incurred under said chapter thirty by any railway company owning or operating a third-class or class "C" railway, or by any officer or lessee thereof, by reason of a failure to fence according to the provisions of said chapter thirty of the acts of the Twenty-second general assembly, are hereby released and remitted, and no suit or prosecution shall be instituted by reason of any such failure; but nothing herein contained shall be construed to exempt any such railway company, lessee or officer, from the fines and penalties provided in said act, if any such road is not fenced in compliance herewith. 1975. Killing of Stock. 22 G. A., ch. 30, § 3. Nothing herein contained shall relieve said railroad corporation from pecuniary liability arising from the killing or maiming of live stock on said track or right of way by said corporation, that may occur through the negligence of said corporation or its employees, and provided further, that nothing in this act shall be construed so as to interfere with the right to open or private crossings, as now maintained, or with the right of persons to such crossings. Provided further, that nothing in this act contained shall in any way limit or qualify the liability of any corporation or person, owning or operating a railway, that fails *This act of the Twenty-third general assembly containing this and the following sections is entitled, “An act to amend chapter thirty of the laws of the Twenty-second general assembly, and to remit certain penalties incurred thereunder," and took effect by publication April 16, 1890. |