Cleaveland v. Chicago & N. W. R. R. , 35 Iowa 220 ( 1872 )

Colb, J.

No question is made upon the instructions or any ruling of the court. The single proposition is as to the sufficiency of the evidence to sustain the verdict of the jury. Since the colt was killed on the depot ground where the defendant had no right to fence, the plaintiff must show some negligence on the part of the defendant’s agents in order to recover. There is no evidence of any negligence on the part of any one connected with the defendant’s train at the time of the accident. The train was going west on its usual time and speed, and was passing the station without stopping, as was usual for that train. The colt, with five or six others, was standing at the east end of a park fence, and when the train was about eight or ten rods off and approaching them, they got upon the track and ran west in front of it, and one was struck and killed before it left the track, and without being seen by any one on the train. The evidence shows that from the time they got upon the track till the one was struck it was impossible to stop the train; and to have slackened the speed would not have saved the colt, and would have imperiled the lives of the passengers.

Reversed.