dissenting. — I cannot concur in the foregoing opinion. In my opinion the evidence was abundantly sufficient to sustain a verdict for the plaintiff, and the court erred in directing the jury to return a verdict for the defendant.
The colts were in a field separated from the defendant’s road by a fence and gate constructed by the defendant. This gate is so constructed that animals can open it. This is proved by the fact that the plaintiffs calf did open the gate *195the day before tlie plaintiffs colts were found killed. Evidence was introduced tending to show that the gate does not rest on the ground, but slides on a rest between two posts, that it could be opened without raising it up, and that the strength of a good silk thread would open it. On the morning that the colts were found killed the gate was open a few feet, and the board was broken and lopped down the same as it was the day before when the calf got through. The break in the board was an old break. A witness for the plaintiff testified that after the accident he noticed on the upper board where the horses had had their heads through and had been rubbing, and there was hair on it that would resemble the hair and mane of the brown colt that was killed. It is conceded in the majority opinion that the colts went upon the defendant’s track through the gate. We have then the gate so constructed that it could be opened by a silk thread, and was in fact opened by a calf the day before the accident; the gate was open the morning that the colts were killed; and the colts passing through the gate upon the track. From this evidence but two inferences are possible. The gate was opened and left open by some person, or was opened by the animals in the field because of its defective construction. In my opinion, in the absence of any testimony that the gate was opened by any person, the jury were fully authorized to find that it was opened by the animals in the field as it had been the day before. The case falls fully within the principle of McKinley v. C., R. I. & P. R. Co., 47 Iowa, 76. In my opinion the judgment of the court below should be reversed.
Beck, justice, concurs in these views.