McDonald v. Great Northern Railway Co.

• Decision Date: 10 November 1896
• Citation: 5 Idaho 8,46 P. 766
• Parties: McDONALD v. GREAT NORTHERN RAILWAY CO
• Court: Idaho Supreme Court

46 P. 766

5 Idaho 8

McDONALD v. GREAT NORTHERN RAILWAY CO

Supreme Court of Idaho

November 10, 1896

DAMAGES FOR HORSES KILLED BY RAILROAD TRAIN-CONTRIBUTORY NEGLIGENCE.-Where plaintiffs, without the knowledge or consent of defendant, entered upon its right of way, for the purpose of cutting and hauling ties and timber from the adjoining lands, and, while so engaged, turned their horses loose upon such right of way, for the purpose of grazing and water, leaving a man to watch and care for said horses, and keep them from straying upon the railroad track of defendant (said right of way being about two hundred feet in width) and such attendant having abandoned the care of said horses they strayed upon the tracks of defendant, and were killed by a passing train, without fault, or want of ordinary care by the employees of defendant, held, that plaintiffs were guilty of contributory negligence, and were not entitled to recover from defendant for the loss of such animals.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Reversed, with costs.

Jay H Adams and R. E. McFarland, for Appellant.

This is an appeal by the Great Northern Railway Company from the judgment of the court below, rendered in an action sounding in tort for the negligent killing of five head of horses, the property of the respondents, by a locomotive and train of freight cars owned and operated by the appellant. The respondents negligently and carelessly turned their horses out on the right of way and railway track of the appellant, and left them unguarded and unattended, and such horses were killed by the contributory fault and negligence of the respondents, their servants and agents. The motion of the defendant for a nonsuit ought to have been granted. The complaint counted on the negligent management of the freight train which run against and killed the plaintiff's horses. There was an utter absence of any proof on the part of the plaintiffs tending to establish any negligence whatever. The plaintiffs' testimony shows only that the horses got on the track and were killed. No inference of negligence can be indulged from these facts alone. (Sorenson v. Menasha Paper & Pulp Co. , 56 Wis. 338, 14 N.W. 446; Payne v. Forty-second Street etc. R. R. Co., 40 N. Y. Super. Ct. Rep. 8; Eddy v. La Fayette, 49 F. 798; Sherman v. Menominee River Lumber Co., 77 Wis. 14, 45 N.W. 1079.) That about half an hour before the horses were killed by the moving train of the appellant, Anderson turned the horses loose upon the right of way to feed and water thereon, and after watching them for about twenty minutes went off and left unguarded and unattended and in a position of great danger from moving trains. That he apprehended the danger is conclusively evident from the testimony given by him, and that when he heard the train strike the bridge he rushed to the door or the cabin and looked out, having in mind the fear that the horses which he had left on the right of way had been caught by the train. That such conduct on the part of the agent of the plaintiffs constitutes contributory negligence, which would bar a recovery, seems to be well established by the authorities. (Carey v. Chicago etc. Ry. Co., 61 Wis. 71, 20 N.W. 648; Fort Wayne etc. Co. v. Woodward, 112 Ind. 118, 13 N.E. 260; Peterson v. Northern P. R. R. Co., 86 Wis. 206, 56 N.W. 639; Hager v. Southern P. Co., 98 Cal. 309, 33 P. 119; Chicago etc. Ry. Co. v. Totten, 1 Kan. App. 558, 42 P. 269; Schneekleth v. Chicago etc. Ry. Co., 108 Mich. 1, 65 N.W. 663.)

Charles L. Heitman, for Respondents.

The main contention of appellant is that respondents were guilty of contributory negligence in permitting the said horses to go upon appellant's right of way, unguarded and unattended. The common-law rule that every man is bound to keep his stock on his own land at his peril, and, if he fails to do so, is liable for their trespasses upon the lands of others, whether fenced or unfenced, is not recognized as being in force in Idaho and in many of the states, owing to the condition of the country. (See note to Tonawanda R. R. Co. v. Munger, 49 Am. Dec. 249, in which many cases are collated and commented upon.) Horses and cattle are free commoners in Idaho. (Waters v. Moss, 12 Cal. 535, 73 Am. Dec. 561; Richmond v. Railroad Co., 18 Cal. 351; McCoy v. Railroad Co., 40 Cal. 532, 6 Am. Rep. 623; Needham v. Railroad Co., 37 Cal. 409.) Where cattle are free commoners, turning them out, though near to a railroad and near to car time, is not necessarily an act of negligence on the part of the owner, nor are they trespassers by going onto the track of a railroad. (2 Rorer on Railroads, 1382; Macon etc. R. Co. v. Lester, 30 Ga. 911; Timm v. R. R., 3 Wash. 299, 13 P. 415; Moses v. R. R., 18 Or. 385, 23 P. 499, citing many cases; McMasters v. R. R., 12 Mont. 163, 30 P. 269; Prickett v. R. R., 33 Kan. 748, 7 P. 611; Macon etc. R. Co. v. Barber, 42 Ga. 300.) The rule that the plaintiff cannot recover damages if his own wrong, as well as that of the defendant, conduced to the injury, is confined to cases where the plaintiff's wrong or negligence has immediately, or proximately, contributed to the result. (Kline v. Central Pacific R. R., 37 Cal. 400, 99 Am. Dec. 282; Needham v. San Francisco etc. R. R., 37 Cal. 409; Flynn v. San Francisco & S. J. R. R., 40 Cal. 18, 6 Am. Rep. 595, and note; Meeks v. Southern Pacific R. R., 56 Cal. 520, 38 Am. Rep. 67, and note.) In order to preclude a recovery it must appear that the plaintiff's negligence was the proximate cause of the loss, and the mere fact that the cattle were allowed to be at large is not enough. (Railroad Co. v. Williams, 65 Ala. 74; Isbell v. Railroad, 27 Conn. 393, 71 Am. Dec. 78; Kerwhacher v. Railroad, 3 Ohio St. 172, 62 Am. Dec. 246; Railroad Co. v. Elliott, 4 Ohio St. 474; Railroad Co. v. Irish, 72 Ill. 404; Ewing v. Railroad, 72 Ill. 75.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

The record in this case develops but little conflict in the evidence. The facts are substantially as follows: The plaintiff, by her agents and employees, was engaged in cutting ties and other timber upon the land adjoining the right of way of defendant, which, at the point where the accident which is the basis of this action occurred, was through land heavily timbered upon both sides of the right of way. The land was cleared upon both sides of the track the width of the right of way, and, where the timber had been cleared off, there was a growth of grass and willows. A small stream crossed the track, which stream was bridged. The plaintiff, by her agents and employees, was, as before stated, engaged in the cutting and hauling of ties and other timber from the lands adjoining the right of way of defendant, and, in the pursuance of this business, had erected a cabin, or "shack," as it is termed in the evidence, for their accommodation and convenience, upon the right of way of defendant, and near the track of its railway. It does not appear that such occupancy was by or with the knowledge or consent of defendant. It was taken by plaintiff on account of the convenience of feed and water for stock, to wit, the horses plaintiff was using in the business in which she was engaged, the grass and water upon the right of way of defendant being the only available grass and water in the immediate vicinity. It was customary, as appears from the evidence, to keep the horses tied up when not in use, or when they were turned loose, a man was detailed to watch and look after them, and keep them from the railroad track. On the twenty-third day of June, 1895, said horses were by an employee of plaintiff turned loose upon the right of way of defendant, for the purpose of grazing and watering; and one Anderson, an employee of plaintiff, was deputed to watch and look after them, and keep them from the railroad track. While so engaged he was called to dinner or supper, at the cabin or shack; and, as he states, believing that no train was due at that point at that time, he left the horses, and repaired to the cabin for his meal, and, while he was thus absent, the horses strayed upon the railroad track, and were struck by a passing...