C. & N. W. R'y Co. v. Dunn

Under the allegation of the petition, the defendant was guilty of an active wrong. Eor the purpose of protecting him from injury the company owed him no duty, and was under no obligation. If the defendant’s horse had strayed upon the railway through the gate and been injured, he could not, except in a case of gross negligence upon the part of the company, recover therefor. Russell v. Hanly, 20 Iowa, 219 (221). The defendant having by his willful act removed the gate, and enabled Engle’s horse to pass upon the railroad track and be injured, Engle might have maintained an action directly against the defendant for the injury. See Russell v. Hanly, supra. But the railway company was passively guilty of a wrong, as to a third person, in permitting the gate to remain down so long a period; hence, the company was under legal obligation to compensate the owner of the horse for the injury. It is claimed that the plaintiff cannot recover of the defendant because the plaintiff is a joint wrongdoer, and because the liability of the plaintiff to pay for the *621horse arose from its own negligence. It is a general rule that no contribution can be enforced as between joint wrong-doers. In Oooley on Torts, after a recognition of this general rule, the following language is employed, “But there are some exceptions to the general rule which rest upon reasons at least as forcible as those which support the rule itself. They are of cases where, although the law holds all the parties liable as wrong-doers to the injured party, yet, as between themselves, some of them may not be wrong-doers at all, and their equity to require the others to respond for all damages may be complete. There are such eases where the wrongs are unintentional, or where the party by reason of some relation is made chargeable with the conduct of others.” Oooley on Torts, p. 145.

That the plaintiffs negligence did not constitute the omission of any duty which the plaintiff owed the defendant is apparent from the fact that, if the defendant’s horse had escaped through the gate upon the track of the railway and been injured, the defendant would have been without remedy. The ease falls fully within the principle of those cases in which it has been held that a municipal corporation, which has been compelled to pay damages to a party injured because of an obstruction upon or excavation in a street, may recover from the party causing the excavation or obstruction. See City of Chicago v. Robins, 2 Black., 418; s. c., 4 Wall., 657; Town of Lowell v. B. L. Ry. Co., 23 Pick., 24; City of Ottumwa v. Parks, 43 Iowa, 119; City of Souix City v. Weare, 95 ante.

The demurrer was improperly sustained.

Beveesed.