Currie v. Southern P. Co.

• Decision Date: 18 January 1892
• Citation: 28 P. 884,21 Or. 566
• Parties: CURRIE v. SOUTHERN PAC. CO.
• Court: Oregon Supreme Court

28 P. 884

21 Or. 566

CURRIE v. SOUTHERN PAC. CO.

Supreme Court of Oregon

January 18, 1892

Appeal from circuit court, Linn county; R.P. BOISE, Judge.

Action by A.E. Currie against the Southern Pacific Company for injury to personal property. Defendant appeals from a judgment of the circuit court affirming a judgment of the justice's court. Reversed.

The other facts fully appear in the following statement by STRAHAN, C.J.:

This action was commenced in a justice's court. The material parts of the complaint are as follows: "tat at all times hereinafter mentioned defendant was, and now is, a corporation duly incorporated under the laws of the state of Kentucky; that at all the times hereinafter mentioned defendant was engaged in operating, running, and conducting a railroad running north and south through Linn county, Or and known as the "Southern Pacific Company;" that on the 8th day of March, 1891, the plaintiff was the owner of one bay work-horse six years old, of the value of $180; that on said 8th day of March, 1891, said horse, without any fault of plaintiff, went upon the railroad track of defendant near the city of Albany, Linn county, Or.; that the defendant, by its agents and servants, in running and managing a locomotive and train of cars then upon said railroad track, and disregarding their duty in that respect, so carelessly and negligently ran and managed said locomotive and train of cars on said track that they ran said locomotive and train of cars against and over and killed said horse of plaintiff, to plaintiff's damage in the sum of $180; that, at said place where said horse was killed by defendant's locomotive and cars, the said railroad track of the defendant was open and unfenced, and not inclosed in any manner." The answer, after admitting the corporate existence of the defendant, denies each of the other allegations of the complaint and new matter, as follows: "And defendant for a separate defense herein, alleges that the place where said horse is alleged to have been killed was within the incorporated limits of the said city of Albany, and that the said city of Albany had, long prior to the time of the alleged killing of said horse, prohibited, and declared, by ordinance of said city, that it was unlawful for, the owner of any live-stock, horse, horses, or cattle to suffer or allow them to run or be at large within the said city limits and making punishable by fine or imprisonment any violation of said ordinance; that said ordinance was at the time of the alleged killing of said horse, and still is, in full force and effect, which said ordinance is entitled 'An ordinance concerning offenses and disorderly conduct defining what shall constitute the same, and providing for the punishment thereof,' approved by the mayor of said city on the 13th day of May, 1887, and is hereby referred to and made a part of this answer; that at the time of the alleged killing of said horse he was, by reason of the carelessness and negligence of the plaintiff, and in violation of the said ordinance, running loose and at large within said city limits of the said city of Albany, and that whatever injury happened to said horse at the time and place alleged was on account thereof, and was caused by reason thereof, and not otherwise; and for another defense herein the defendant alleges that the portion of the track of the defendant's railroad mentioned in the complaint as the place where said horse is alleged to have been killed was and is within the incorporated limits of the city of Albany; that neither the act incorporating said city, nor any of the amendments thereof, nor any of the ordinances of said city contain any provision requiring the defendant to fence its track within said city limits, although the charter of said city invested the common council thereof with full power to regulate and control the use of streets and highways within said city limits for railroad and other purposes." After alleging some other immaterial matter, the answer contains the allegation that said horse was killed without any fault or negligence on the part of the defendant. The plaintiff demurred to each separate defense contained in this answer, upon the ground that neither defense contained facts sufficient to constitute a defense, which demurrer was sustained by the justice of the peace. A trial before the justice resulted in a judgment in favor of the plaintiff, from which an appeal was duly taken to the circuit court.

Before proceeding to try any question of fact presented by the record, the circuit court tried the questions of law presented by the demurrers to the separate defenses contained in the defendant's answer, and gave judgment reversing the ruling of the justice of the peace on said demurrers. The plaintiff then asked and obtained leave to file a reply to said separate defenses. After denying the same, the reply contained the following new matter: "The plaintiff, for a further and separate reply to the new matter in the defendant's further and separate answer, alleges that at the time said horse was killed, as alleged in plaintiff's complaint herein, it was unlawful for any person corporation, or company to run, or cause to be run, any locomotive or car, within the corporate limits of the city of Albany, at a greater rate of speed than six miles an hour, which said ordinance is entitled 'An ordinance concerning offenses and disorderly conduct, defining what shall constitute the same, and providing for the punishment thereof,' approved by the mayor of said city on the 13th day of May, 1887, and is hereby referred to and made a part of this reply; that at the time the locomotive drawing the train which killed the horse, as alleged in plaintiff's complaint, was running at a greater rate of speed than six miles an hour, to-wit, at the rate of forty miles an hour, in violation of the laws of said city of Albany made and approved; and that by reason thereof the defendant so negligently ran upon and over said horse of plaintiff without any fault of plaintiff. The plaintiff, for a further and separate reply to the defendant's new matter set up in its further and separate defense, alleges that the plaintiff's horse escaped from plaintiff's barn by accident a short time prior to the time it was run over and killed by the defendant's engine; that said horse escaped without any fault or negligence of plaintiff, and was killed, as alleged in plaintiff's complaint." The defendant then moved to strike out from the files of the court the plaintiff's reply, for the reason...