Dibblee v. Astoria & C.R.R. Co.

• Decision Date: 25 October 1910
• Citation: 111 P. 242,57 Or. 428
• Parties: DIBBLEE v. ASTORIA & C.R.R. CO.
• Court: Oregon Supreme Court

111 P. 242

57 Or. 428

DIBBLEE v. ASTORIA & C.R.R. CO.

Supreme Court of Oregon

October 25, 1910

Appeal from Circuit Court, Columbia County; Thomas A. McBride Judge.

Action by John Dibblee against the Astoria & Columbia River Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Omar C. Spencer (Carey & Kerr and Omar C. Spencer, on the brief), for appellant.

W.B Dillard (Dillard & Day, on the brief), for respondent.

EAKIN J.

This is an action to recover damages from the railroad company for loss of stock killed upon defendant's right of way by a moving train. The complaint alleges that plaintiff is the owner of an inclosed tract of land, through which, for a distance of three miles, defendant's railroad is located that defendant neglected to maintain a lawful fence along such track; that on the 18th of June, 1907, two of plaintiff's horses, pasturing in such inclosure, wandered therefrom over and upon defendant's track, where the same was unfenced, or improperly fenced, and were struck by a moving train and killed. And in a second count similar allegations are made as to seven head of cattle which were killed on December 26, 1907. He asks for damages in the sum of $340. The answer denies each allegation of the complaint except plaintiff's ownership of the land, and that defendant operates a railroad across the same, and alleges affirmatively that the road is inclosed by a lawful fence and gates at farm crossings. In charging contributory negligence, it is further alleged that there are farm crossings, constructed at plaintiff's request; that such gates are maintained by defendant for the sole benefit of plaintiff, and have been continuously used by him; that plaintiff carelessly permitted such gates to remain open, through which said stock entered and were killed, without fault of defendant. This defence of contributory negligence is abandoned by defendant, there being no evidence that the stock entered at the gates.

There was evidence tending to show the defective condition of the fence and gates inclosing the railway track. To the admission of evidence of the condition of the gates, defendant excepted--its contention being that this is an action in tort for noncompliance with the railroad fence law, which makes no provision for the maintenance of gates; that the gates at the farm crossings are not a part of the statutory fence; and that plaintiff's request therefor amounts to a waiver by him of the statutory fence, and for damage arising from defects in the gates the remedy is not in tort but upon contract. In answer to this it may be said that the only contract relations between plaintiff and defendant, in reference to the crossings, is the clause in the...