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

• Decision Date: 27 December 1910
• Citation: 112 P. 416,57 Or. 428
• Parties: DIBBLEE v. ASTORIA & C.R.R. CO.
• Court: Oregon Supreme Court

112 P. 416

57 Or. 428

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

Supreme Court of Oregon

December 27, 1910

On petition for rehearing. Petition denied.

For former opinion, see 111 P. 242.

EAKIN, J.

The petition urges again that the action is upon a tort, and that the evidence tended to show that the liability arose upon breach of contract. The testimony of plaintiff, quoted in the petition, is to the effect that, by his deed to the railway company, he reserved his right to crossings; that orally the company agreed to put in cattle guards, meaning open crossings, but did not do so; and that he had no arrangement with the company for gates. The defendant elected to inclose its tract by a continuous fence and gates at the crossings, and plaintiff is not seeking to recover because the company did not construct open crossings. He is not complaining that gates were constructed, but that the fence and gates were not kept in repair, and remedy is sought upon the statutory liability.

The other questions are answered in the opinion. The petition is denied.