Bernardi v. Northern Pac. Ry. Co.

• Citation: 108 P. 542,18 Idaho 76
• Parties: FRANK BERNARDI, Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, Appellant
• Decision Date: 14 April 1910
• Court: United States State Supreme Court of Idaho

108 P. 542

18 Idaho 76

FRANK BERNARDI, Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation, Appellant

Supreme Court of Idaho

April 14, 1910

RAILROAD-DUTY TO FENCE.

(Syllabus by the court.)

1. Under the provisions of Rev. Codes, sec. 2815, it is the duty of every railroad company operating any steam or electric railroad in this state to erect and maintain lawful fences on each side of its road where the same passes through, along or adjoining inclosed or cultivated fields or inclosed lands.

2. Until such fences shall be made and maintained, such corporation shall be liable to pay all damages which shall be done by its agents, engines, or cars, to horses, cattle mules, or other animals on said road, regardless of whether the person operating or in charge of such engine or cars was negligent or not.

3. The language used in sec. 2815 as follows: "where the same passes through, along or adjoining inclosed or cultivated fields or inclosed lands," refers to country districts or where a railroad runs along, adjoining or through cultivated fields or inclosed lands, and was not intended to apply to municipalities or towns whether incorporated or not unless such town was so extended as to include cultivated fields or inclosed lands other than residence lots.

4. It is clearly within the power of the legislature as a police regulation to require railroad companies to fence their track, and it is for the judgment of the legislature whether such duty shall be extended to the requirement that a railroad shall fence its road in municipalities or towns or in rural sections where the lands are not cultivated or inclosed, such as the open prairie, sage-brush and timber lands not cultivated or inclosed.

5. Held, under the evidence in this case that the appellant was not required to fence its road where the animal for which damages were sought entered upon the track.

6. A railroad company is not required, under the provisions of sec. 2815, to fence its road where the same runs through a narrow canyon with a public traveled road occupying almost the entire space between the ends of the ties and the foot of a precipitous mountain on one side of the track, and residences and stores occupying almost the entire space between the ends of the ties and the foot of a precipitous mountain on the other side, and there are no cultivated fields or inclosed lands through, along or adjoining which such road runs at the place of the accident.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. W. W. Woods, Judge.

An action to recover damages for the killing of a cow by a train operated by a railroad company, where the road was not fenced. Judgment for plaintiff. Defendant appeals. Reversed.

Judgment reversed. Costs awarded to appellant.

E. J. Cannon, and Featherstone & Fox, for Appellant.

Where it is impracticable or impossible for a railroad company to erect and maintain fences along its right of way, it will be exonerated from so doing. So it is uniformly held that a railway need not fence its depot grounds, and this is read into the statute by the courts as an exception to its application. (Swanson et al. v. Melton (Tex. App.), 17 S.W. 1088; Beekdott v. Grand Rapids & I. R. Co., 113 Ind. 343, 15 N.E. 686; Foster v. Kansas City Southern Ry. Co., 112 Mo.App. 67, 87 S.W. 57; 3 Elliott on Railroads, p. 442, par. 1195.)

Where it would be unlawful to erect and maintain such fences a further exception is read into the statute. So a railroad may not fence public streets or highways or crossings, or public grounds or streets. (Greely v. St. Paul, M. & M. Ry. Co., 33 Minn. 136, 53 Am. Rep. 16, 22 N.W. 179; Ft. Wayne etc. Ry. Co. v. Herbold, 99 Ind. 91; Jeffersonville, M. & I. Co. v. Peters, 1 Ind.App. 69, 27 N.E. 299; Lake Erie & W. R. Co. v. Rooker, 13 Ind.App. 600, 41 N.E. 470; Rippe v. Chicago, M. & St. P. Ry. Co., 42 Minn. 34, 43 N.W. 652, 5 L. R. A. 864.)

A railroad is exonerated, without express exception contained in the statute, from erecting and maintaining such fences, where the public convenience demands that a particular portion of its road be left unfenced. (Atchison, T. & S. F. Ry. Co. v. Shaft, 33 Kan. 521, 6 P. 908; Greely v. St. Paul, M. & M. Co., supra; Hilleman v. Gray's Point Terminal Ry. Co., 99 Mo.App. 271, 73 S.W. 220.)

Walter H. Hanson, for Respondent.

The law clearly requires that a railway must provide fences and cattle-guards, or it will be liable for all stock killed regardless of negligence, and a similar statute has been upheld by this court in the case of Patrie v. Oregon S. L. Ry. Co., 6 Idaho 448, 56 P. 82; also in Johnson v. Oregon S. L. Ry. Co., 7 Idaho 355, 63 P. 112, 53 L. R. A. 744.

There is nothing in the record to show that the railroad company could not build a fence along their right of way without interfering with the operation of the road, and it is incumbent upon the appellant to show this fact by competent proof, if they wish to avoid the duty imposed upon them by statute. (Lake Erie & W. R. Ry. Co. v. Rooker, 13 Ind.App. 600, 41 N.E. 470.)

A mere private convenience of the company of increased cost of construction is not sufficient to relieve the company from its duty to fence (Elliott on Railroads, sec. 1194); nor will any private convenience on the part of individuals be sufficient to absolve the company from fencing. (Atchison, T. & S. F. Co. v. Shaft, 33 Kan. 521, 6 P. 908.)

Counsel claim that the appellant is not obliged to erect fences or cattle-guards in Black Bear or any other town. We cite the following authorities in opposition thereto: Coyle v. C. M. & St. P. R. Co., 62 Iowa 518, 17 N.W. 771; Cox v. Minn. S. S. M. & A. R. Co., 41 Minn. 101, 42 N.W. 924; 3 Elliott on Railroads, 2d ed., sec. 1195, p. 442; Young v. Hannibal etc. Co., 79 Mo. 336; Atchison, T. & S. F. R. Co. v. Shaft, supra.

STEWART, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

This action was commenced to recover damages for the value of a cow killed by appellant company in the operation of its railroad. The cause was tried to a jury in the district court and a verdict returned for the plaintiff. This appeal is from the judgment.

This appeal must be determined by answering the question: Was it the duty of the appellant company to fence its railroad track at the point where the cow entered upon said track?

Rev. Codes, sec. 2815, provides:

"Every railroad company operating any steam or electric railroad in this state, shall erect and maintain lawful fences not less than four feet high on each side of its road, where the same passes through, along or adjoining inclosed or cultivated fields or inclosed lands, with proper and necessary openings and gates therein, and farm crossings; and also construct and maintain cattle-guards at all highway crossings where fences are required as aforesaid, suitable and sufficient to prevent horses, cattle, mules or other animals from getting on the railroad.

"Until such fences, openings, gates, farm crossings and cattle-guards shall be duly made and maintained, such corporation shall be liable to pay all damages which shall be done by its agents, engines or cars, to horses, cattle, mules or other animals on said road, or by reason of any horses, cattle, mules or other animals escaping from or coming upon said lands, fields or inclosures occasioned in either case by the failure to construct or maintain such fences, or cattle-guards, regardless of whether the persons operating or in charge of such engines or cars were negligent or not. But after such fences, gates, farm crossings and cattle-guards shall be duly made and maintained, such corporation shall not be liable for any such damages unless negligently or wilfully done.

"If any corporation aforesaid fail, neglect or refuse for and during the period of three months after the completion of its road through or along the fields or inclosures hereinbefore named, to erect and maintain any fence, opening gates, farm crossings or cattle-guards as herein required, and after having received not less than thirty days' notice requiring them so to do, then the owner of such fields or inclosures may erect and maintain such fences, opening gates, farm crossings and cattle-guards, and shall thereupon have a right to sue and recover from such corporation in any court of competent jurisdiction, the full value of the same: Provided, That no recovery can be had on account of stock injured or killed which came upon said highway by reason of failure to keep such gates closed."

This statute makes it the duty of a railroad company to erect and maintain lawful fences on each side of its road "where the same passes through, along or adjoining inclosed or cultivated fields or inclosed lands." The penalty fixed by the statute for failure to erect and maintain such fences is twofold: First, the company is made liable to pay all damages which shall be done by its agents, engines, or cars to the animals named in the statute "regardless of whether the persons operating or in charge of such engines or cars were negligent or not"; second, if the company neglect or refuse, for and during the period of three months after the completion of its road, "through or along the fields or inclosures hereinbefore named, to erect and maintain any fence, . . . . after having received not less than thirty days' notice requiring them so to do, then...