Curtis v. Oregon R. & Nav. Co.

• Decision Date: 10 October 1904
• Court: Washington Supreme Court
• Parties: CURTIS v. OREGON R. & NAV. CO.

78 P. 133

36 Wash. 55

CURTIS v. OREGON R. & NAV. CO.

Supreme Court of Washington

October 10, 1904

Appeal from Superior Court, Whitman County; S. J. Chadwick, Judge.

Action by Isaac M. Curtis against the Oregon Railroad & Navigation Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

W. W. Cotton, McCrosky & Canfield, and Lester S Wilson, for appellant.

John Pattison, for respondent.

HADLEY J.

Respondent brought this suit to recover damages on account of the killing of his cattle by a train upon appellant's railroad. The complaint alleges that while respondent was driving a band of cattle across the railroad track the appellant, in the operation of a train of cars negligently struck the cattle, killing eight head and wounding six others. It is also averred that the persons operating the train could have stopped it or slackened its speed so as to have permitted the cattle to be driven off the track without injury; but that, in total disregard of respondent's rights, they, in a reckless, wanton, and malicious manner, struck and killed the cattle. The damages are laid in the complaint at $620.20. The answer denies that appellant was negligent, and affirmatively pleads contributory negligence on respondent's part. The cause was tried before the court and a jury, resulting in a verdict for respondent in the sum of $300. Appellant's motion for new trial was denied, and judgment was entered for the amount of the verdict. This appeal is from the judgment.

There are no errors assigned upon the introduction of evidence or the instructions of the court. The appeal is submitted upon two propositions only: (1) That appellant's motion for nonsuit or for a peremptory instruction in its favor should have been granted; (2) that a new trial should have been granted. These questions are discussed together by counsel and involve the sufficiency of the evidence only. Briefly stated, the following, together with other testimony, was before the jury when the motion for nonsuit was made: That respondent and an assistant were driving a band of 86 cattle upon and across the railway track and right of way; that the right of way was fenced at said place, but there was a gate opening through the north fence, and, at a distance of about 500 feet below, another gate opened through the south fence that the railway track at said place was originally built upon a trestle, and that a private crossing under the trestle had been for a long time used there; that some time before this accident the railway company filled the trestle with earth, making an elevated embankment grade at said point, and at the same time made a grade from the side thereof and where this road had formerly been, so as to form an approach and crossing over the track; that said gates and the new graded crossing had been often used for crossing the track and right of way; that respondent believed it was after train time, and that the train had gone along, but that he first looked to see if any train was approaching, and, seeing none, opened each of said gates, and then drove the cattle through the north gate; that when the cattle were in the act of crossing the track a passenger train was discovered approaching from the east at a great rate of speed, which ran into the cattle before anything could be done in the way of removing them from the track; that no whistle was sounded and the bell was rung but two or three times, just as the engine struck the cattle; that for a distance of 1,950 feet up the track in the direction from which the train came one could stand in the middle of the track and see the rails where the cattle were crossing; that the train ran 200 yards after it struck the cattle before it stopped. We think the above evidence was such as justified the court in denying the motion for nonsuit. Even if respondent was a trespasser at the time, there was sufficient evidence to warrant submitting to the jury the question whether appellant's train operators saw the cattle in time to have stopped the train, and whether there was reckless and wanton neglect on the part of appellant's employés. The evidence concerning the maintenance of the gates by appellant, its construction of the grade crossing, and the frequent use thereof by respondent and others, was also such as left it for the jury to say whether these were...