Mackie v. Central Railroad

6 N.W. 723, 54 Iowa 540

• Court: Supreme Court of Iowa
• Decided: October 7, 1880
• Status: Published

Opinion

Beck, J.

I. It is shown by the evidence, and admitted by counsel of defendant in their argument, that the horses hilled by defendant’s train went upon the railroad track through a gate which defendant was by law required to maintain at a private crossing of the railroad. The evidence tends to show that the fastening of the gate was defective, and for that reason the horses were enabled to go upon the railroad track. The killing of the horses by defendant’s train, and their value, are not matters of dispute.

1. KAIUtOADS: stoeky- Mecfive gate. II. The objections made by defendant to the judgment we will proceed to consider in the order they are discussed by counsel. The defendant’s counsel first insist ^at, as défendant was required to keep a gate at the private crossing, it had no right to make a fence there, and, therefore, it is not liable under Code § 1289* which imposes liability for failure to fence the road at points where the right to fence exists. The thought is this: a gate is not a fence, the defendant was under obligation to keep a gate, therefore it had no right to fence. But the error of the position is obvious. To fence means “ to inclose with a fence or other protection.” A gate is a protection. It is a contrivance for passing through a fence. It is, indeed, a part of the fence, which is defined to be “a protection,” “an inclosing structure of wood, iron, or other ■ material, intended to prevent intrusion from without or straying from within.” A gate is a necessary part of such inclosing structure; it is a part of the fence. See McKinley v. C., R. I. & P. R. Co., 47 Iowa, 76.

2 notice. III. It is next objected that the notice of the destruction of the horses, and the affidavits accompanying it, served upon defendant under the requirements of Code, § 1289, are not sufficient. This section provides that “ a notice in writing, accompanied by an affidavit of such injury or destruction,” shall be served upon certain officers or employes of the defendant. It is insisted that the notice and affidavits should show that the horses were “ running at large.” and that they were destroyed “ without the willful act of the owner.” The statute requires that the railroad company shall be informed by the notice and affidavit of the fact of the injury to the property; no further requirement is found in the px*ovision. We know of no reason suppox’ting defendant’s claim that the notice and affidavit must show the facts insisted upon by counsel.

IY. It is urged that the affidavit does not show that the notary public who administered the oath is a notary, and had authority as such. We do not know how these things could be shown by the affidavit more deafly than they do appear. Upon its face the county wherein the act of the notary was done is shown in the usual manner of stating the venue. The notary affixes his official designation to his signature, and his éeal shows the city of his residence. From these things it cleax-ly appears that the oath was administered in Mahaska county, wherein the notary resided. ■

3_._. damages. Y. Counsel for defendant insists that the statute under which the action is brought, in providing for double damages, is in conflict with sections 1 and 9 of the bill of rights, and article 9, division '2, sections 1 and 4 of the constitution, which protect the property of the citizen, and secure it from deprivation except by due process of law, and require all fines and penalties to be paid into the school fund of the State.

The double damages provided for is not a fixxe or penalty. It is the meásure of damages fixed by the statute when an injury is inflicted. Koons v. C. & N. W. R. Co., 23 Iowa, 493. In such cases, as well as in cases of violation of contract or neglect of legal duty or obligation, the legislature may fix the measux’e of damages to be recovered. The statutes fixing damages upon dishonored bills of exchange, and interest xxpon delinquent taxes, are of this character. It has never been held that they are in conflict with the constitution.

While the constitution secures the possession and enjoyment of property, it is held subject to legislation providing for the enforcement of contracts, the discharge of civil duties and for remedies for private wrongs. The statute in this case provides a remedy for a private wrong, an injury to the property of the citizen, to be enforced in the courts of the State. This remedy is enforced by due process of law. It cannot be defeated by the constitutional guarantees for the enjoyment of property. The objections under consideration demand no further attention.

VI. The court gave certain instructions as to the care to be exercised by defendant, in constructing and maintaining the gate and in keeping it closed. They announce correct rules. But they are assailed by defendant’s counsel because they do not announce rules upon other points of the case, and on the ground of inferences drawn therefrom. The objections to the instructions are really based upon what these instructions do not contain, rather than upon what they do. What they do contain is the law; if defendant desired other rules to be given to the jury, it should have asked proper instructions presenting them. The instructions given are correct as far as they go. They cannot be held erroneous because of omission to give other instructions.

4 evidence. VII. A witness was permitted, against defendant’s objection, to show the condition of the gate two or three days after the accident. It is not shown that its condition was <Ji£fererit as to security from what it was at the time of the accident. Its condition, in the absence of such proof, would be presumed to have remained unchanged.

VIII. The evidence was conflicting, and we cannot hold that it does not sufficiently support the verdict. The judgment of the District Court is

Affirmed.