Eaton v. Oregon Ry. & Nav. Co.

• Decision Date: 21 June 1890
• Citation: 24 P. 415,19 Or. 391
• Parties: EATON v. OREGON RY. & NAV. CO.
• Court: Oregon Supreme Court

24 P. 415

19 Or. 391

EATON v. OREGON RY. & NAV. CO.

Supreme Court of Oregon

June 21, 1890

Appeal from circuit court, Union county; JAMES A. FEE, Judge.

The complaint set forth ten causes of action, eight of which grew out of the alleged injury or killing of stock belonging to the plaintiff, and the other two by reason of fires alleged to have been set out by engines belonging to the defendant. Issue was joined on each cause of action; and, after the plaintiff had submitted his evidence at the trial, the defendant moved for a nonsuit on the ground that there was no allegation of the corporate existence of the defendant, and its ownership of the road, except in the first count of the complaint. The court granted the motion as to the last nine causes of action, but refused it as to the first cause of action, upon which there was a trial, verdict, and judgment for the plaintiff, from which the defendant appealed; and the plaintiff appealed from the judgment of nonsuit, which is now to be considered.

(Syllabus by the Court.)

While under the Code, each cause of action must be separately stated, with the relief sought, so as to be intelligently distinguished, yet, where the corporate existence of the defendant, and the ownership of its road, is not only made certain by reference, but the answer supplies the defect in each count held that, in the absence of a demurrer specifying the objection, after the evidence was submitted the objection comes too late.

The purpose of our statute is to make the railroad company owing the road, or the company operation the road, liable, so that either may be sued, as the plaintiff may elect, who has sustained injury to his live-stock by a moving train upon its unfenced track.

If the plaintiff was in a position to have prevented any damage from fire to his property without incurring unusual danger, and made no effort to do so, it was negligence on his part, and precludes his right of recovery.

R. Eakin and T.H. Crawford, for appellant. W.W. Cotton and Gilbert & Snow, for respondent.

LORD J., (after stating the facts as above.)

Under the Code, it is required that each cause of action must be separately stated, with the relief sought, so as to be intelligently distinguished. In the first count the averment is distinctly made of the incorporation and ownership of the road by the defendant. In the succeeding counts, such averment is not repeated, but it is made certain by reference to the first count: and in the answer the incorporation corporate existence, and ownership of the railroad is directly admitted and averred. It is no doubt true that the complaint must state all the facts which constitute the cause of action embraced in it, and its defects cannot be supplied from other statements. But here the fact of the corporate existence of the defendant, and its ownership of the road, is not only distinctly made certain by reference, but the answer supplies the defect in the allegation. So that, in the absence of a demurrer specifying the defect, after the evidence is submitted, the objection comes too late, and ought not to prevail. Defects of this character should be pointed out before answering and going to trial; otherwise when the defects complained of are supplied by the answer, and the defendant is content to go to trial, he will be precluded from raising them.

The next objection is that the defendant company was not operating the road alleged to be owned by it, which caused the alleged injuries to the plaintiff. This objection is based on the assumption that our statute delaring a railroad company liable for the value of live-stock killed upon or near its unfenced track does not apply to the owner of the road unless such owner was actually operating the road which caused the injury. That statute provides: "Any *** company or corporation, or lessee or agent thereof, owning or operating any railroad within the state of Oregon, shall be liable for the value of any horses *** killed, and for reasonable damages for any injury to any such live stock, upon or near any unfenced track of any railroad in this state, whenever such killing or injury is caused by any moving train or engine or cars upon such track." Hill's Compilation, § 4044. We think it is plainly the purpose of this statute to make the company owning the road, and the company operating the road, liable, and that either may be sued, as the plaintiff may elect, for the injury which he may have sustained to his live-stock by a moving train upon any unfenced railroad track. Its language is that "any company owning or operating" shall be liable, etc., which means either the one or the other shall be liable, and not that the one operating the road at the time of the accident must be the owner in order to render it liable, within the terms of the statute. This is the view taken in Hindman v. Navigation Co., 17 Or. 619, 22 P. 116, in which THAYER, C.J., said: "Under these...