
    McKonkey v. The C., B. & Q. R. Co.
    Tlegligence: railroads: rath of speed. In the absence of any statute limiting the rate of speed of railway trains, no conceivable rate is evidence of negligence perse.
    
    
      Appeal from Adams District Court.
    
    Thursday, March 18.
    This is an action to recover for injuries to the plaintiff’s horse, caused by the alleged negligent running of the defendant’s train against the horse, in the village of Corning. The answer is a denial, etc. The cause was tried to a jury, who found a vérdict for plaintiff for $85. The defendant appeals.
    
      
      Frank M. Davis, for appellant.
    
      Russell c& Maley, for appellee.
   Cole, J.

Upon tbe trial, tbe evidence offered tended to sbow that the horse was injured at one of the street and railroad crossings in Corning; and that the speed of the train was greater than ordinary; but upon these, as upon other questions, there -was a conflict in the evidence. The injury occurred March 13, 1873. The court gave to the jury this instruction: “ 5. If the train or engine was permitted to be run at a rate of speed greater than eight miles an hour within the town of Corning, it was negligence.” The trial judge certifies (under Code, Sec. 3173, which limits appeals to cases where the amount in controversy is one hundred dollars at least, unless upon his certificate), “that in my opinion' it is desiraable to have the opinion of the Supreme Court upon the question involved in the fifth instruction given by the court.”

In our opinion the instruction is erroneous, and should not have been given. At' the time the accident occurred there was no statute regulating the speed-of trains any where! But, by the Code, Sec. 1289, which took effect in September, 1873, a greater rate of speed than eight miles per hour upon depot grounds is deemed negligence. This section has no application to this case for two reasons: it was not in effect when the cause arose, and the accident did not occur on the depot grounds. This case rests, then, upon the common law. That law, as we understand it, is forcibly stated by Shearman and Redfield on Negligence, Sec. 478, as follows: “Frequent attempts have been made to convict railroad companies of negligence on the mere ground of the speed at which their trains have been run. But it never has been, and we trust never will be, established as a rule of law that any conceivable rate of speed is per se evidence of negligence.” See also the authorities there cited in the notes. Also, Flattes v. The C. R. I. & P. R. Co., 35 Iowa, 191; Latty v. The B. C. R. & M. R. Co., 38 Iowa, 250.

REVERSED.  