1 railroads : deficient fence: stock dence under instructions. — I. The injury occurred in defendant’s yard, at Tama City. The yard was inclosed by a fence, which, as originally constructed, was sufficient to turn live stock. The railway was intersected immediately west of the yard by one Qf ^he streets of the town, and in the original construction of the road a cattle-guard was built in the track at that point, but it was afterwards planked over. An opening, about fifteen feet in width, had also been made in the fence on the north side of the yard some time before the injury, and this remained open at the time. The horses entered the yard either through this opening or at the unguarded street-crossing. Plaintiff ’ s theory is that they entered through the opening. True, it is not expressly alleged in the petition that that was the point of entrance. But it is alleged that the injury was occasioned by the defendant’s failure to maintain a sufficient fence, and the damages sought to be recovered is double the value of the property; and if the street-crossing had been the place of entrance, the injury would have been occasioned, not by the failure to maintain a sufficient fence, but by the failure to maintain a cattle-guard, and in that case plaintiff would not have been entitled to recover more than the actual damages. Moriarty v. Cent. Iowa Ry. Co., 64 Iowa, 696. The court instructed the jury, in effect, that plaintiff was not entitled to recover unless he had proven that the animals entered the yard through the opening. The verdict of the jury then necessarily implies a finding that the animals entered the yard through the opening; and the first question argued by counsel is whether that finding is supported by the evidence. The recovery, it is proper to say, was for double the value of the animals. There was no direct evidence as to which was the place of entrance, but plaintiff sought to establish his theory by the circumstances. It was proven that the horses went *599upon, the track from the north (which was the side towards the opening), at a point about three hundred feet from the opening and about one thousand feet from the street-crossing; but they could not be tracked from that point to either the crossing or the opening, and they could have reached it as readily from one as the other. The question, then, is not as to what facts were proven, for as to them there was no conflict or dispute, but is whether the conclusion essential to the establishment of plaintiff ’ s claims for double damages can be flrawn from them. When the facts and circumstances from which that conclusion must be deduced, if at all, are examined, all that can be said of them is that they are consistent with plaintiff’s theory. But they are also equally consistent with the other theory, viz., that the place of entrance was at the street-crossing. How, then, can it be said that plaintiff’s theory is proven? The finding of the jury, we think, lacks the support of evidence. The question as to the place of entrance under the. evidence was matter of mere conjecture, and on that state of facts plaintiff was clearly not entitled to recover double the value of the property.
2. Appeal: instructions: review. But it was contended that, under the statute (Code, sec. 1289 ), it was necessary only for plaintiff , , . , , , to prove the injury to his property, and that when that fact was proven the burden was on defendant to prove that the Injury was not occasioned by the want of a sufficient fence. But we cannot go in to that question. The district court took the opposite view, and instructed that the burden on that question was on plaintiff, and, that view being favorable to defendant, its appeal does not bring the question here for review. The exception taken to the instruction is not that it does not correctly express the law, but that, assuming its correctness, the evidence presented no question for the jury. It is therefore not reviewable on this appeal. But the only question presented- in that connection is whether, assuming that- it is correct, the verdict can be sustained, and we think it cannot.
*6003. Railroads: duty to fence depot grounds: question for jury. *599II. The only other question in the case is whether *600defendant was bound to ' maintain a fence on the north line of its yard. The district court submitted that question to the jury, to be determined by them as one of fact. We think that was correct. The opening was made for the accommodation of a single shipper. Ordinarily, goods were received and delivered at another yard, or, more properly, at another place in the same yard, but outside of the inclosure. At a time when the streets were in a bad condition it was more convenient for that particular shipper, whose place of business was immediately north of the inclosed yard, to receive his goods within the inclosure, and the opening was made for that purpose. The law is that “railroads are required to be fenced when it is fit, proper and suitable, in view of the public convenience, and depot grounds may be uninclosed when the interest of the road and public require it.” Latty v. Burlington, C. R. & M. Ry. Co., 38 Iowa, 250. But whether the public convenience and the interest of the road require that the grounds in question, which, as we have seen, were not the ordinary place for receiving and delivering freight, should be left uninclosed, was a question of fact, and was properly left to the jury. Reversed.