Ferrell v. Oregon Short Line Railroad Co.
| Decision Date | 28 April 1927 |
| Docket Number | 4547 |
| Citation | 256 P. 104,44 Idaho 217 |
| Parties | J. F. FERRELL, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant, and C. W. KARNES, Respondent, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant |
| Court | Idaho Supreme Court |
RAILROADS-REQUIREMENT TO FENCE-EXEMPTIONS-EVIDENCE.
1. A railroad company's station grounds are exempt from the requirement of C. S., sec. 4814, that it shall fence on each side of its road.
2. Whether switch, treated as part of station ground, was reasonably necessary for transaction of railroad company's business there, the protection of its employees, and the accommodation of the public, and therefore an essential part of the station grounds, not required to be fenced, was a question of fact.
3. The reasonable necessity of a switch as part of the station ground, not required to be fenced, was established by the positive testimony, so that in the absence of testimony to the contrary it was error to submit it to the jury.
APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. B. S. Varian, Judge.
Actions for damages. Judgments for plaintiffs in both cases. Consolidated and appealed. Reversed, with directions.
Defendant's motion granted. Reversed and remanded, with directions. Costs to appellant.
Geo. H Smith, H. B. Thompson and J. H. McEvers, for Appellant.
A railroad company is not required to fence its depot and station grounds. (C. S., sec. 4814; Bernardi v. Northern Pacific Ry. Co., 18 Idaho 76, 108 P. 542, 27 L. R. A N. S., 796; Ft. Worth & D. C. Ry. Co. v. Decatur Cotton Seed Oil Co. (Tex. Civ. App.), 179 S.W. 1104; Reid v. San Pedro, L. A. & S. L. R. Co., 42 Utah 431, 132 P 253; Mills & Le Clair Lbr. Co. v. Chicago, St. P. M. & O. Ry. Co., 94 Wis. 336, 68 N.W. 996; Miller v. Chicago, B. & Q. R. Co., 18 Wyo. 209 (Ann. Cas. 1912D, 626, 105 P. 908.)
Depot and station grounds include all grounds necessary for switching and making up of trains, together with a sufficient space beyond the switches to permit trains to clear and to allow train crews to walk from the train to the switch without passing over cattle-guards (3 Elliott on Railroads, 3d ed., sec. 1709, p. 655; 11 R. C. L., sec. 33, p. 899; Denver & R. G. R. Co. v. Siminoe, 65 Colo. 73, 173 P. 541; Stewart v. Pennsylvania Co., 2 Ind.App. 142, 50 Am. St. 231, 28 N.E. 211; Kyser v. Kansas City St. J., C. B. & R. Co., 56 Iowa 207, 9 N.W. 133; Prickett v. Atchison, T. & S. F. Ry. Co., 33 Kan. 748, 7 P. 611; Bird v. Michigan Cent. R. Co., 145 Mich. 706, 108 N.W. 1100; Rabidon v. Chicago & W. M. Ry. Co., 115 Mich. 390, 73 N.W. 386, 39 L. R. A. 405; Schneekloth v. Chicago & W. M. Ry. Co., 107 Mich. 1, 65 N.W. 663; McGuire v. St. Louis M. & S.E. Ry. Co., 113 Mo.App. 79, 87 S.W. 564; Knop v. Chicago, M. & St. P. Ry. Co., 57 Mont. 288, 187 P. 1020; Bowers v. Chicago, M. & St. P. Ry. Co., 61 Mont. 200, 201 P. 825; Beaudin v. Oregon Short Line R. Co., 31 Mont. 238, 78 P. 303; Chicago, B. & Q. R. Co. v. Hogan, 30 Neb. 686, 46 N.W. 1015; Burnham v. Chicago, B. & Q. R. Co., 83 Neb. 183, 119 N.W. 235; St. Louis & S. F. R. Co. v. Brown, 32 Okla. 483, 122 P. 136; Atchison, T. & S. F. Ry. Co. v. McCall, 48 Okla. 602, 150 P. 173; Wilmot v. Oregon R. R. Co., 48 Ore. 494, 120 Am. St. 840, 87 P. 528, 11 Ann. Cas. 18, 7 L. R. A., N. S., 202; Harvey v. Southern Pacific Co., 46 Ore. 505, 80 P. 1061; Gulf C. & S. F. Ry. Co. v. Blankenbeckler, 13 Tex. Civ. App. 249, 35 S.W. 331; Gulf C. & S. F. Ry. Co. v. Wallace, 2 Tex. Civ. App. 270, 21 S.W. 973; Abbott v. Beaumont S. L. & W. Ry. Co. (Tex.), 177 S.W. 1052; Fort Worth & D. C. Ry. Co. v. Decatur Cottonseed Oil Co. (Tex.), supra.)
As affecting the liability of a railroad company for the killing of animals, under the statute requiring a railroad company to fence its right of way, it is the point of entrance upon the right of way that governs liability and not the point of the accident. (Edie & Son v. Kansas City Southern Ry. Co., 133 Mo.App. 9, 112 S.W. 993; Dorsey v. Chicago, B. & Q. R. Co., 175 Mo.App. 150, 157 S.W. 1065; Eaton v. McNeill, 31 Ore. 128, 49 P. 875.)
Where animals are killed by a train on a right of way, the owner can recover under the provisions of C. S., sec. 4814, for the loss thereof only in a case where the animals were killed at a point where the statute requires the railroad company to fence. If the statute does not require the railroad company to fence at the point where the animals were killed, the courts cannot impose this obligation upon the railroad company, even though the railroad had fenced one side of its right of way. (Bliss v. Oregon Short Line R. Co., 34 Idaho 351, 200 P. 721; Dickinson v. Stewart, 70 Okla. 271, 174 P. 233; Bowers v. Chicago, M. & St. P. Ry. Co., 61 Mont. 200, 201 P. 825; Atchison, T. & S. F. R. Co. v. McCall, 48 Okla. 602, 150 P. 173.)
"Under the authorities cited, the question is clearly settled that railroad companies are not required to fence their tracks at stations where passengers are received or discharged." (Stewart v. Pennsylvania Co., 2 Ind.App. 142, 50 Am. St. 231, 28 N.E. 211.)
(Kyser v. Kansas City St. J. & C. B. R. Co., 56 Iowa 207, 9 N.W. 133.)
Where the railroad company has laid out station grounds and used them, there is a presumption that they are necessary for station purposes. (11 R. C. L., sec. 34, p. 900; Wilmot v. Oregon R. R. Co: (Or.), supra; Atchison, T. & S. F. Ry. Co. v. McCall (Okl.), supra; Mills & LeClair Lbr. Co. v. Chicago, St. P. M. & O. Ry. Co. (Wis.), supra; Wolf v. Chicago, M. & St. P. Ry. Co. , 184 Wis. 193, 199 N.W. 142.)
It is the point of entrance upon the right of way that governs liability and not the point of accident. (Edie v. Kansas City Southern Ry. Co., 133 Mo.App. 9, 112 S.W. 993; Dorsey v. Chicago, B. & Q. R. Co. (Mo.), supra; Eaton v. McNeill, 31 Ore. 128, 49 P. 875.)
The burden of proof is on the plaintiff to prove that the animals entered upon the right of way at a point where the railroad company is required to fence. (Perkins v. Loux, 14 Idaho 607, 95 P. 694.)
"Whether it is the duty of a railroad company to fence its right of way at its depot grounds, is a question of law for the court." (11 R. C. L., sec. 34, p. 900.)
Ed. R. Coulter, for Respondents.
The place on defendant's line of railroad, where the animals in question were killed, being in a farming community, where the railroad passes through, or along inclosed or adjoining cultivated fields or inclosed lands, defendant is required to fence both sides of its track, and to construct and maintain cattle-guards at the end of said fence. (C. S., sec. 4814; Elliott on Railroads, 3d ed., sec. 1709; Patrie v. Oregon Short Line R. Co., 6 Idaho 448, 56 P. 82; Johnson v. Oregon Short Line R. Co., 7 Idaho 355, 63 P. 112, 53 L. R. A. 744; Bernardi v. Northern Pacific R. Co., 18 Idaho 76, 108 P. 542, 27 L. R. A., N. S., 796; Strong v. Oregon Short Line R. Co., 31 Idaho 48, 169 P. 179, Saccamonno v. Great Northern Ry. Co., 30 Idaho 513, 166 P. 267.)
The defendant is estopped from claiming that it is not compelled by law to fence both sides of its railroad track and build and maintain cattle-guards at the point where the animals were killed. (Patrie v. Oregon Short Line R. Co., supra; Strong v. Oregon Short Line R. Co., supra; Chicago & E. I. R. Co. v. Guertin, 115 Ill. 466, 4 N.E. 507.)
Error cannot be predicated on failure to instruct the jury on the question of necessity of use for station purposes of the appellant's right of way at point where the killing occurred, in the absence of a request for such instruction. (Strong v. Oregon Short Line R. Co., supra; Joyce Brothers v. Stanfield, 33 Idaho 68, 189 P. 1104.)
This appeal involved two separate cases brought to recover damages and attorney's fees for the killing of two cows by one of defendant's trains at Jonathan, Idaho, on May 5, 1923. The complaints alleged in substance that on the specific date one of defendant's trains struck and killed the two cows in question near Jonathan station at a point where defendant was required by C. S., sec. 4814, to fence its right of way; that defendant had failed to do so, and was liable under the statute for the damages caused plaintiffs. The defendant admitted the killing of the animals, but denied they were killed at a place where defendant was by the statute required to fence its tracks and right of way. It alleged they were killed while trespassing on defendant's premises which were by defendant necessarily and actually used as a station grounds; that such premises were unfenced for the purpose of affording access and egress of passengers and freight for transportation, and that by reason thereof it was neither practicable nor feasible for defendant to, and it was not by law required to, maintain fences or cattle-guards at the point where the animals entered upon the right of way or at the point where they were struck and killed.
By agreement the cases were consolidated for trial. At the conclusion of the evidence, defendant moved for a directed verdict, which motion was denied. It then requested that the court give defendant's requested instruction No. 1, instructing the jury to return a verdict in defendant's favor. This request was refused; and the court later denied defendant's motion for judgment non obstante veredicto. Upon the verdict returned, judgments for damages and attorney's fees were entered in favor of the respective plaintiffs.
Defendant appealed specifying as...
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