From March, 1919, to March, 1924, the plaintiff was a tenant upon a farm of 320 acres, through which the defendant's railroad extended easterly-westerly. 115 acres of the farm lay on the north side of the right of way, including a 1. RAILROADS: pasture of 55 acres. The buildings upon the farm operation: were not far from the right of way. A lane maintenance extended from the yards across the right of way of dangerous to the pasture on the northerly side. A private cattle crossing had been constructed for the use of the guard: farm, pursuant to Section 8011 of the Code, negligence. 1927. Gates were constructed in the right-of-way fences on each side of the crossing, and these were opened and closed by the plaintiff night and morning, whenever he drove his live stock through. *Page 1379 On different dates, beginning with June, 1920, and ending with April, 1923, one cattle guard was traversed by plaintiff's horses whereby they suffered injury to their feet. This occurred on five dates, a single horse being involved each time. Each incident occurred in the presence of the plaintiff himself. Plaintiff's action is predicated upon the unnecessarily dangerous character of the cattle guard. The specific negligence charged is:
"The said defendant constructed a cattle guard that wasunnecessarily dangerous to stock, and that was likely to permanently injure stock, and that the said cattle guard consisted of sharp points of metal, projecting upward in such a manner that, if a horse's foot was pressed upon it, it would pierce the frog of such foot and produce a dangerous and permanent injury, and one likely to damage or destroy such animal. That, in adopting the said unnecessarily perilous and dangerous cattle guard, and in maintaining same at the said crossing, the defendant was guilty of negligence."
No other form of negligence is charged. The purport of this charge is that the cattle guard in question would have been sufficiently effective without the severe equipment of sharp prongs thereon, and that, therefore, the sharp prongs were unnecessarily dangerous. The cattle guard was constructed pursuant to Section 8011, which provides as follows:
"8011. Private crossings. When any person owns land on both sides of any railway, or when a railway runs parallel with a public highway thereby separating a farm from such highway, the corporation owning or operating such railway, on request of the owner of such land or farm, shall construct and maintain a safe and adequate farm crossing or roadway across such railway and right of way at such reasonable place as the owner of the land may designate, and shall construct and maintain a cattle guard on each side of such roadway where it crosses the track, connected by wing or cross fences to the fences on each side of the right of way."
The argument of the plaintiff here is predicated largely upon Section 8005. It carries the assumption that plaintiff's *Page 1380 rights herein are defined by said Section 8005. Instructions of the court reflect the same assumption. This 2. RAILROADS: section is as operation: injury to "8005. Failure to fence. Any corporation animals: operating a railway and failing to fence its absence of right of way against live stock running at cattle large or to maintain proper and sufficient guard: scope cattle guards at all points where the right of statute. to fence or maintain cattle guards exists, shall be liable to the owner of any stock killed or injured by reason of the want of such fence or cattle guards for the full amount of the damages sustained by the owner, unless it was occasioned by the willful act of such owner or his agent; and to recover the same it shall only be necessary for him to prove the loss of or injury to his property."
It should be noted at the outset that this section has no application to plaintiff's alleged cause of action. This section emphasizes the duty of the railroad company to fence and protect its right of way against live stock running at large. It renders the railway company liable for damages to owners of live stock which shall be injured or killed upon the right of way through failure of the railway company to construct and maintain effective fences and cattle guards. The injuries contemplated by this statute are those resulting to live stock by the operation of trains. The case at bar is not a case of that kind. Impliedly, it negatives any want of effectiveness in the cattle guard. The basis of complaint is that it was unnecessarily extreme in its effectiveness. The injury to plaintiff's horses was caused, not by failure of a fence or cattle guard, not because of their escape into the right of way, but because, at the threshold of their entrance, they were injured by the very barrier which had been interposed to prevent their going upon such right of way. If the defendant is liable at all, it became so liable with the first step of the animal and by his contact with the first prong. It became liable, if at all, before the animal crossed the barrier into the right of way. There is no provision of our statute which contemplates damages for injuries resulting from the prongs and dangers of the cattle guard itself. The plaintiff's suit, therefore, must be regarded as a mere common-law action for negligence, which might arise independently of *Page 1381 the statute. The provision of Section 8005 which makes a prima-facie case upon proof of injury alone, has no application thereto whatever.
Plaintiff's argument here is predicated also upon the assumption that Section 8011 requires the defendant to construct and maintain a "safe cattle guard." The instructions of the trial court were predicated upon the same assumption. In Instruction 9 the court said:
"The jury are instructed that it was the duty of the defendant and its servants in charge of maintenance of its tracks to see that the cattle guards at the place and time in question where the alleged injuries occurred, were in a reasonably safe condition for the purpose for which they were constructed."
And again, in the same instruction:
"If the jury finds that the defendant's servants in charge of the railway track at the place in question where the cattle guard is located did, under the facts and circumstances disclosed by the evidence, exercise proper care and diligence under the law as defined in the instructions given you by the court, in seeing that the said cattle guards were in reasonably safe and proper condition for the purposes for which they were constructed, then the plaintiff cannot recover in this case, and your verdict should be in favor of the defendant."
By the foregoing instruction, the trial court not only imposed upon the defendant the duty to maintain a safe cattle guard, but imposed upon it also the burden of proving that its cattle guard was safe. Safe for whom? Safe for what?
Section 8011 imposes upon the railroad company the duty to construct and maintain "a safe and adequate farm crossing orroadway across such railway." The same section requires the construction and maintenance of "a cattle guard." The attribute of safety is not therein attached to the cattle guard. A cattle guard is, of necessity, inherently dangerous in substantial degree. The plaintiff's petition so implies, in predicating its allegation of negligence, not upon the fact that the cattle guard was dangerous, but that it was unnecessarily so.
With these preliminary observations, we proceed to a consideration of the fundamentals of the case. *Page 1382
I. We have set forth above the allegations of negligence contained in the petition. It will be noted that they consist largely of mere legal conclusion. For the purpose of the discussion at this point, we shall assume them to be sufficient to tender an issue, and assume likewise that the negligence charged is actionable. The allegation was that the cattle guard was unnecessarily dangerous. Did the plaintiff produce sufficient evidence to warrant the jury in sustaining such allegation? The burden was upon the plaintiff, not simply to prove that the cattle guard was dangerous, but that it was unnecessarily so.
From the beginning of the railroad era, the cattle guard has been a problem of engineering invention. It is a part of the plan of fencing a railroad right of way against all encroachments. The problem was to devise and to create between the rails of the railway company a barrier against the ingress of live stock into the right of way, and yet one which would not be a barrier to the passing of a train over the same space. If the space between the rails were left unguarded, it would render possible the ingress of animals on the right of way. If a fence were erected across such space, it would stop the trains. The ingenuity of the inventor was necessarily directed, therefore, to some contrivance which should interfere effectively with the travel of animals between such rails. Many devices, differing in detail, have been used. The adequacy of the best of them (if there be such) is approximate and comparative. All of them interpose some form of danger, which is made obvious to the approaching animal immediately upon his attempt to pass over the space. The most common form of danger adopted is the sharp point or prong, the purpose and tendency of which is to restrain or discourage the animal at the very first step. The statute does not attempt to define the type or plan of the cattle guard. It does lay upon the corporation the duty to construct one on some plan which shall be reasonably adequate to prevent live stock from entering upon the right of way. The protection of live stock is only the secondary objective of this statutory restraint, and not the primary one, as plaintiff assumes. The primary objective is the protection of trains and the human life committed to their keeping. Wherever fences may properly be erected, the statute provides the types thereof. But the types of cattle guards are left by the statute to the progressive ingenuity *Page 1383 of inventor and engineer. Danger to the animal has been the basic idea of every cattle guard that has been described in this record.
It appears from the undisputed evidence in this record that the type of cattle guard in question has been used for many years by this defendant and by many others of the larger railroads of the country, and that it has had the universal approval of the engineering departments of substantially all railways in the country. This is met by the plaintiff only with the showing that there are other types of cattle guards in use by other railroads. There is no showing that such types are less dangerous than the one used by the defendant. On the contrary, it appears that nearly all of them carry substantially the same prongs that are complained of herein. There is some claim that the old types in use 40 or more years ago are still in use to some extent, and that they are less dangerous than the present type. Two of the types thus specified by plaintiff are described in Timins v.Chicago, R.I. P.R. Co., 72 Iowa 94, and Campbell v. Iowa Cent.R. Co., 124 Iowa 248. In those cases, these types were held to be an inadequate compliance with the statute, and damages were allowed the complaining parties, under the provisions of Section 8005. Under the holdings in those cases, it was incumbent upon the railway companies to increase the effectiveness of their cattle guards and to change the existing types accordingly.
We find nothing in plaintiff's evidence which impeaches in any degree the type of cattle guard in use by this defendant, nor any evidence that would sustain a finding that there is any type of cattle guard in use which would be equally effective as, and yet less dangerous than, the type now in use. A verdict for the defendant should, therefore, have been directed.
II. We may further inquire whether the fact that a cattle guard is dangerous, either in greater or less degree, constitutes a violation of the statute, either in letter or in spirit.
In the present state of knowledge and invention, as it is disclosed in this record, no cattle guard can be made effective without presenting a measure of danger to the encroaching animal. The effectiveness of a cattle guard is, of necessity, accomplished indirectly, and not directly. That is to say, no strength of material is interposed against the ingress of the *Page 1384 animal. The utmost that can be accomplished directly by the cattle guard is to prick the feet of the animal. With the great mass of live stock, this ordeal is sufficient to turn the animal back. If the exceptional animal ignores the pricking of its feet and proceeds upon its course, it thereby exhausts the effectiveness of the cattle guard, and finds itself unopposed by any other obstacle.
Does the policy of the statute frown upon such indirect method of guarding the right of way against the encroachments of live stock? Section 8003 furnishes us some guide, by way of analogy, to the spirit of the statute in this respect. This section specifies the approved types of fences for inclosing the right of way. The first type specified is: "Not less than five barbedwires." Why barbed wire? A barb upon the wire adds no strength thereto. The resisting power of a wire, as against the strength of an animal, is no stronger with a barb than without it. But the virtue of the barb is its prong, and its sole function is to threaten danger to the encroaching animal, and to inflict it if the threat be ineffective. The effectiveness of the barbed wire is indirect in like manner as is the effectiveness of the pronged cattle guard. The animal shrinks from barb and prong, and escapes harm by withdrawing therefrom. It is true, nevertheless, that a barbed wire is potentially quite dangerous, and that it actually inflicts great injury in the exceptional case. It sometimes cuts deeply into horse flesh, and sometimes destroys the udder of a valuable cow. But the practical fact is that, in the great body of experience, the potential danger of barbed wire remains potential only, and the threatened injury thereof is avoided by the obedience of the animal.
If, in lieu of the present type of cattle guard, the railway corporation had laid a floor of barbed wire upon the space between its rails, the barbs would carry the same potential danger that they would upon the fence. In that sense the barbs would be dangerous. Their use, however, would be consistent with the express provisions of the statute.
In the same sense, the prong of the cattle guard is potentially dangerous. In the main, however, it becomes effective indirectly to stop the encroachment of the animal without actual infliction of injury. In the exceptional case, where the animal disregards the warning prong, the potential danger necessarily *Page 1385 becomes an actuality, and some degree of injury must result.
The indirect effectiveness of the prong is well illustrated by the evidence in this record. The plaintiff had upon this farm approximately 40 head of live stock, which he drove between these cattle guards twice a day for five years. Each day's total of crossings by animals was 80 in number. In the course of one year, these totals would rise into the tens of thousands, and in five years would exceed a hundred thousand. These thousands of crossings between these cattle guards were accomplished indirectly as effectively as if the wing fences had been extended across the space. More than one hundred thousand times did these animals obey the warning of the prong. As against this vast volume of practical, though indirect, success, five instances occurred where the prong, with its threat of danger, was disregarded, and the threatened injury was necessarily inflicted. Manifestly, here was a demonstration of a very large success. That there should be an occasional exception to all success is inevitable in practical experience.
We deem it clear that the cattle guard in question conformed to the letter and spirit of the statute, and that the element of danger involved in it was a necessity to its practical operation. It follows that no cause of action was stated by the allegations of the petition. The net result of our consideration is that the plaintiff's alleged cause of action has no support, either of statute or of precedent.
We hold: (1) The plaintiff failed to prove that the danger presented by this guard was unnecessary; (2) danger of injury to an animal passing over it is a necessary attribute of a cattle guard, and as such, is not actionable.
The judgment below, is, accordingly, reversed. — Reversed.
FAVILLE, De GRAFF, ALBERT, WAGNER, and GRIMM, JJ., concur.