I think the case was for the jury. It is, of course, obvious that the problem of constructing and maintaining an effective, and still not unduly dangerous, cattle guard is a very difficult one to solve. The company has the right to use all necessary means the use of which does not transgress its duty of exercising ordinary care to keep cattle off its right of way. It owes in this respect a duty to its passengers *Page 1386 and the owners of freight carried by it. It also owes, however, a duty to the landowner and to the owner of stock. Probably the statutory requirement that railroad companies fence their right of way resulted as much from the interest of the landowners and the owners of stock as from any other. Live stock is valuable property. Domestic animals have their well-known natural proclivities and instincts. The owners have the right to transfer them from one side of the railroad to the other, by public or private crossing. The railroad company surely owes a duty to exercise reasonable care toward live stock and its owners in the performance of its statutory duties to construct and maintain cattle guards. The evidence in this case is that the plaintiff was occupying the farm in controversy from 1919 to 1923, and during that time this plaintiff thinks he never had over 11, and never less than 7, horses; that he kept, not 40 head of cattle, but 12 to 40 head of animals, in the "pasture north of the tracks. There were not 40 head of animals in this pasture when all the accidents to my horses occurred. There was about that number of animals in the pasture when the last ones were hurt. * * * In every case except one, I was personally driving the stock over the crossing at the time the accident happened. * * * When the last ones were hurt, * * * Coop was driving them. * * * The animals just apparently took a notion to go down the tracks. Different horses walked across the cattle guards each time." In these years, 1919 to 1923, according to plaintiff's testimony:
"I had a number of horses injured on these cattle guards. I had a number of them crippled that didn't have to be cared for. I think there were about seven that caused me considerable trouble. `There was more than that that I had in that time, and the same way with cattle. I had a number of cattle crippled, but it didn't affect them like it did the horses.'"
Plaintiff had a horse injured in June, 1920. In November, 1921, another received injuries which resulted in death. Another in January, 1922, and two in April, 1923, were injured. In all these cases the foot became infected, so that a veterinarian was called. A later occupant says he had five horses injured there. The testimony is that the cattle guards in question "were made of metal strips laid between the rails and on each side *Page 1387 of the rail. * * * nailed to the ties, and the bottom of the strips were flush with the ground. * * * These strips of metal were about eight feet long, I should judge, and were laid lengthwise [parallel] to the rail. * * * These metal strips were perforated with triangular perforations, and the metal triangle was bent, to form a right angle with the metal strip. These metal points stuck up all along each of the strips to within a few inches of each end. These metal strips were about three inches apart. * * * The metal points * * * are two and one-eighth inches high. The metal strips on the outside of each rail were higher than the strips between the rails. * * * Grass would grow up between these metal strips. * * * I would judge these strips of metal projected beyond the fences about five and one-half feet. * * * The metal strips which composed the cattle guard were about one sixteenth of an inch thick * * * not painted * * * rusty looking * * * The general color of the guards is about the same as the railroad tracks. * * * The prongs were visible if you looked close enough. The prongs extended upward a distance of a little over two inches. As a rule they were filled with grass, so you couldn't possibly see unless you looked pretty close, — only small spots of the guards were visible. * * * That part of the guard on the outside of the rails was visible * * * The grass that was in the guards in January was dead stuff that had grown up previously." Another witness testifies: "The prongs run into the horse's foot an inch and a half." The faces of the triangular strips were parallel with the rails, so that the edges would be presented to an animal approaching the cattle guard.
While there is testimony in general terms that these guards are in general use, yet defendant's roadmaster testifies:
"I have seen cattle guards made of sheet iron, with prongs not as sharp as the Cook guard, and set so that it faces approaching the stock when they come down along the tracks. Instead of the edge facing the stock, the broad side of the prong faces the stock. This type of guard is not made in strips, but in sheets." The road master testifies: "The effectiveness of the Cook guard [that in question] lies in the fact it appeals to the animal's sense of feeling, to deter it from walking over the guard. * * * My idea of the effectiveness of the Cook guard is that it appeals to the horse's sense of feeling. It runs into the horse's foot and gives it pain when it tries to cross." *Page 1388
The section foreman says:
"Mr. Sargent asked me to take the guard up, and I wrote to the company about that. I have had some complaints of injury from these Cook guards. Mr. Harsch, Mr. Lee, and Mr. Meek have complained."
Defendant's division engineer says:
"The American Railway Engineering Association passed a resolution approving the Cook type of cattle guard, and also approving other types of guard. * * * There are some roads that do not use the Cook guard. * * * The Cook guard, if torn up, would probably not derail the train, because the strip is of light weight. It is about an eighth or three sixteenth of an inch thick. * * * The Sheffields are heavier stuff. When a train is in good running order, nothing should be dragging; but chains break loose, and riggings sometimes gets down a little too low. * * * Recently the Burlington have been making cattle guards out of old boiler flues. They take a piece of pipe, flatten it out, and then bend it into a ridge, so that it makes a triangular `piece sticking up.' These pipes are placed so that the centers are five or six inches apart. * * * There are a good many roads in Iowa, — it seems to me 27 or 28 * * * The only Iowa roads that I know about, using the Cook strip, are the Milwaukee, Illinois Central, Burlington, and Rock Island. The Northwestern."
The divisional engineer says that the Sheffield guard has the disadvantage that, when the brake rigging or something is dragging, it will pick up the cattle guard, and is liable to get under the wheels and cause derailment; that there is not enough metal in one Cook strip to cause derailment, and if one is torn loose, it does not leave the cattle guard unprotected.
The purpose of the cattle guard is not to punish the animal for venturing upon it, but to repel or deter from crossing it. It seems to me that the rows of prongs might be found to present the appearance of steel-hued streaks in the grass, and cinders, more or less broken and confusing, and that they would not ordinarily impress the animal's sense of sight as prongs or blades painful to step upon; that the cattle guard would not impress the animal through the sense of sight as dangerous or *Page 1389 painful, and that its appearance would not be repelling or deterring; that the sense of feeling and of hurt would naturally and ordinarily be sustained by placing the animal's weight upon the prongs and the consequent dangerous penetration of the foot.
Many animals driven over the crossing would cross directly. It would be the few that would diverge and, from fright or curiosity, attempt to cross the cattle guard. The fact that many animals go over the crossing without injury is of no consequence.(Bryce v. Chicago, M. St. P.R. Co., 103 Iowa 665.)
Complaints concerning the guards were made to defendant.
The testimony of the defendant's roadmaster shows that the prongs were known and intended not merely to prick, but to run into the horse's foot. On the evidence, the prong was adapted to penetrate, and would penetrate, to the depth of an inch and a half. The foot, from the bacteria which it picks up, and from the bacteria on the prongs, is peculiarly susceptible to infection, which by these prongs would be carried into the foot to the depth of an inch and a half. It seems to me that a reasonable mind might find, on this evidence, that the prongs of the cattle guard are adapted, not merely to deter or repel, but to inflict a grievous, punitive, and otherwise purposeless injury, and not merely a deterrent pain; adapted uselessly to inflict injury and damage, and not to repel or deter.
Horses are easily and frequently startled into running, and taking a seemingly open and unobstructed course. Their natural instincts are to forage, to stray through apparently open places, to indulge mere curiosity. It might, on this record, be found to be a fact that a horse frightened into running along the railroad, or tempted by the prospect of feed, or following its inherent proclivities and instincts, might reasonably be expected to attempt to pass over the cattle guards, and in doing so, frequently and ordinarily to step upon the prongs with such force, or under such weight, as to force the prongs to pierce the soft tissue of the foot to the depth stated. It might be found that, with its foot on the sharp prongs, the inertia of the animal, or speed or fright, or its instincts, would ordinarily carry it forward, rather than repel or deter it. It might be found that the construction of these cattle guards was such as to produce, not merely a repelling pain from an inconsequential hurt, but a *Page 1390 cruel and useless injury, — not, in practical operation or design, effective to merely deter or repel, but to invite. It might be found that the cattle guard was dangerous to such degree as to transcend the limits of reasonable care.
One obvious purpose of requiring the fencing of railroad right of ways and the maintenance of cattle guards is to prevent live stock from straying, and particularly from getting upon the right of way, thereby imperiling themselves and the operation of trains, to the damage of their owners and of the company and its property, passengers and freight. See 2 Cooley on Torts (3rd Ed.) 1402. Protection of the live stock itself is one of these purposes. This would be defeated by the use of a guard dangerous to an unreasonable, excessive, and useless degree. Some animals, in obedience to natural instinct, and from fright, will attempt to pass over the guard. There are perils attendant upon such an attempt that are unavoidable, notwithstanding the exercise of reasonable care. As defendant argues, absolute prevention of animals from crossing the cattle guards is, at the present time, unattainable. The construction and maintenance of the guard are not actionable merely because it is dangerous to stock in passing over it. It does not follow, however, that the railway company may, with impunity, maintain a cattle guard that is, in its very construction, adapted not merely to repelling or deterring stock, but to inflicting upon them a wound dangerous to a useless and unreasonable degree. The company must exercise a degree of care proportionate to its statutory and common-law duties toward all concerned. Reasonable care is the standard. Neither the statutes nor the common law give the company the right, in the performance of its statutory duty, to maintain cattle guards that are intrinsically and unreasonably cruel, or that will unreasonably imperil animals which are attempting, in following out their natural proclivities and instincts, to pass over them.
The fact that other companies, or that engineering societies, approve of a guard of such a character as to be unreasonably inimical to the safety of straying animals does not absolve the companies or the defendant from liability for negligence. The company may have exercised a degree of care that, with respect to its own rights, is greater than is demanded of it, and yet be negligent with respect to stock and its owner. The defendant *Page 1391 was under statutory duty to maintain a cattle guard reasonably adapted to repelling animals from its right of way or deterring them from entering upon it; but it was under no duty, and had no right, to construct a cattle guard unreasonably dangerous to animals attempting to pass over it. Whether the cattle guard in question was unreasonably dangerous to such animals, whether defendant, in the performance of its duties to the public and to the owners of live stock, exercised reasonable and ordinary care in the selection and maintenance of the type of guard in question, I think was, on the record, a question for the jury.
I think a new trial should be granted for error in the instructions, particularly in not submitting to the jury the question of contributory negligence. It is unnecessary to discuss this proposition. Justice Kindig joins in this dissent.