#### Silas Anderson v. The Chicago, Rock Island *&*Pacific Railway Company, Appellant.

Railroads: killing stock. Evidence held sufficient to sustain ver-1 diet against the railway.

CONTRIBUTORY nbgligence will not defeat action under Code, 1289. 2 It requires a willful act of owner or agent.

Presumption that a fence was reasonably safe to turn stock on an 3 afternoon does not necessarily show that a railroad is not liable for a horse found dead the next morning.

Double damage notice. The notice was addressed to the C., R. I. & P. *B. B.*The road’s name is Chicago, Eook Island & Pacific *Bailwzy*and the notice was served on its agent. It is commonly known as the Chicago, Rock Island & Pacific Railroad, and parol evidence was properly admitted to show that it was usually 4 known by its initials. *Held,*the notice sufficiently based double damages.

*562*Appeal from Van Burén District Court.*— Hon. W. D. Tisdale, Judge.

Monday, January 28, 1895.

Action under section 1289 of thie Code,, to recover double damage's for tine alleged killing of two horses, because of defects in defendant’s right of way fence. The case was tried to a jury, and a verdict returned in favor of thie plaintiff, on which judgment was entered, and from which defendant *appeals.*

Affirmed.

*Thomas 8. Wright*and *Sloati, Brown & Sloan*for appellant.

*Wherry & Walker*for appellee.

Given, C. J.

I. Appellant’s first contention is that the verdict is contrary to the evidence. The evidence shows thla/t the horses entered the right of way 1 through the wing fence connecting thie right of way fence with the east abutment of a bridge spanning a passageway under defendant’s track, The horses were found on Sunday morning, January 1,1893, dead, in a cut about one hundred yards east of the bridge. This cut extended from near the bridge a considerable distance east, the foot of the slopes being within four to six feet of the rails, and the top within four to six feet of the hedge fence inclosing the right of way. The horses were in the care of one George Vickers, who permitted them to be turned out, so that they .could go from the barn, through this under-crossing, to a field beyond. -A week before the horses- were killed, one Lawman, had partially -tom down this wing-fence, for the purpose of removing a runaway horse from the right of way. On Tuesday preceding January first, defendant’s sectionmen replaced the fence in *563a temporary manner, sufficient; as they say, to turn stock, and testified that it was in that condition at four p. m. Saturday evening.

Appellant contends that the fence was in proper condition when repaired, was in that condition at four p. m. on Saturday, and, from these facts and its condition on Sunday morning, insists that it must have been opened by some trespasser after four p. m. Saturday, and therefore the defendant is not liable. There is a conflict in the evidence as to the manner in which the fence was repaired, and as to its condition on Sunday morning. We cannot say that the jury was not warranted in finding that the horses got upon the right of way because of the fence not being properly replaced.

■ Appellant also contends that there is no evidence that the horse which was found lying dead between the rails was killed by the train that passed over the road that night. It is true but one train passed that night; that it could not have passed over the dead horse; and that the engineer testifies that he hit but one horse. It is not impossible, however, 'that this horse was hit without either the engineer or fireman knowing it, and that it came again npou the track after the train passed. The topography of the right of way indicates that such was the fact, and there is no other apparent cause for the death of the horse than that it was struck by the train, and we think the jury was warranted in so finding.

II. Appellant complains of the refusal to give certain instructions asked. Thie substance of these instructions is that if George Vickers., who had care 2 of the horses, was guilty of negligence in permitting them, to be turned out when and where they were, the plaintiff could not recover. “This liability exists, regardless of the question of negligence. Indeed, the statute expressly declares that *564liability to exist unless the injury was occasioned by the willful act of the owner or Ms agent.” *Spence v. Railway Co.,*25 Iowa, 141; Code, section 1289; *Krebs v. Railway Co.,*64 Iowa, 670, 21 N. W. Rep. 131; *Moody v. Railway Co., 77*Iowa, 30, 41 N. W. Rep. 477. The question whether Vickers- acted willfully in permitting the horses to be, turned out was certainly involved in the case, and the court instructed that, if the “killing of said horses was occasioned by the willful act of the plaintiff or his agent, then you will finid for the defendant.”

Appellant asked an instruction, in effect, that, if the fence was repaired so as to be reasonably safe to turn stock, and was-in that condition between three and 3 four o’clock on, Saturday, the defendant would not be liable. It does not necessarily follow from such a .state of facts that defendant might not be liable, and the question of liability under such facts was properly submitted in the instructions, given. We think 'the instructions asked, in so far as they present the law applicable to the case, were sufficiently covered by those given.

III. Appellant’s remaining contention is that there is no foundation for the allowance of double damages because the notice on which the award was permitted 4 was addressed, “To the C., R. I. & P. R. E. Co.,” the .defendant’s name being the “Chicago, Rock Island & Pacific Eailway Company.” The notice and accompanying affidavit each state that the horses were killed “on or about the first day of January, 1893, at a point about one mile westward from Bonaparte, in Van Burén county, Iowa, on the railroad commonly known as the ‘Chicago, Eock Island and Pacific Eailroad,’ running from Keokuk, Iowa, to Des Moines, Iowa.” This notice and affidavit was served on the station agent employed in *565the managiememt of the business of the Chicago, Kook (Island & Pacific Railway Company, at thei station of ‘said railroad company at Bonaparte, in Yan Burén oountv,Iowa. There was no error in permitting evidence to show that this defendant was commonly known by the initial letters used in the notice and affidavit.

Our conclusion from the record is that the judgment of the. District Court should be *affirmed.*