Meier v. Northern P. Ry. Co.

• Decision Date: 11 February 1908
• Citation: 93 P. 691,51 Or. 69
• Parties: MEIER v. NORTHERN PAC. RY. CO.
• Court: Oregon Supreme Court

93 P. 691

51 Or. 69

MEIER v. NORTHERN PAC. RY. CO.

Supreme Court of Oregon

February 11, 1908

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

Action by A. Meier against the Northern Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Defendant has appealed from a judgment given against it for damages caused by its alleged negligence in failing to fence its track, which it is alleged resulted in the killing of plaintiff's horse upon or near defendant's right of way, by being struck or frightened by one of its moving trains, so that the horse was thrown or jumped upon a fence a piece of which penetrated its body. The answer is a general denial of the averments of the complaint. At the conclusion of plaintiff's case defendant moved for a nonsuit on the ground that there was no evidence tending to establish three material facts particularly specified in the motion. It is therein asserted that the evidence fails to show (1) that the portion of the right of way claimed to have been unfenced was unfenced; (2) that the horse got upon the track at the place claimed; and (3) that there was no evidence that the train of defendant either threw the horse or frightened it, causing it to jump upon the fence, as charged in the complaint. The motion being overruled, defendant offered its testimony, and at the close moved for a directed verdict in its favor upon substantially the same grounds as stated in its motion for a nonsuit. This motion being also overruled, the cause was submitted to the jury, which returned a verdict in plaintiff's favor, upon which the judgment was entered. The only error relied upon is the overruling of these motions.

O.C Spencer, for appellant.

W.R Dillard, for respondent.

SLATER C. (after stating the facts as above).

Defendant's road runs through plaintiff's farm, which is partly lowland, subject to overflow. At a point where the right of way crosses the farm there is a depression or slough across which a fill from 25 to 30 feet high, measured on the slope has been made, and extending a distance of about 100 feet, and causing a pond of water to accumulate there, in the wet season, on the east side of the track, which, at the time of the accident, was about 3 1/2 feet deep, according to plaintiffs' testimony. This is where it is claimed the track is unfenced, and where plaintiff's horses went upon the track. Plaintiff testifies that there is no fence there, and that it is 32 feet across this pond from a ridge on his premises to defendant's embankment, and that at that point the water was then 3 1/2 feet deep. It is admitted by defendant that there is no fence along its right of way across this pond; but it claims that the pond is of sufficient depth to form a natural barrier, and therefore, under the statute, to be equivalent to a lawful fence, and he asked the court to so declare as a matter of law. But it is not any pond that is to be deemed a lawful fence, but only if it be "equally secure against the trespass of any domestic animals, or shall be made so by artificial means." B. & C. Comp. § 4342, subd. 7. That is a question of fact for the jury to determine and not the court, and, there being some evidence that stock did cross the pond to the embankment, the question was properly submitted to the jury. Nor could the court say as a matter of law that such ponds are "complete natural defenses against the entrance of such stock upon said track, such as natural walls or deep ditches," as provided in section 5140, B. & C. Comp.

2. It is next asserted that there is no evidence that the horse went upon the track at the place claimed. There is, perhaps, no direct evidence to that effect. Some horses did enter at that place, for the plaintiff and his witnesses testify that the next morning after the accident they examined the embankment at that place and found horse tracks going obliquely up the embankment to the railroad track, and that they traced them down the track to the broken place in the fence where they went out. But in an action on the statute for the killing or injuring live stock on an unfenced track it is not necessary to allege or offer proof of entry at a particular place, except where stock is killed at a place where the company is not bound to fence, as a public highway. When it is alleged and proved that the company failed to fence, and that the plaintiff's stock was killed or injured upon or near such unfenced track by a moving train, the negligence is established, and can be defeated only by proof of contributory negligence. Eaton v. O.R.N.Ry. Co., 19 Or. 371, 24 P. 413.

3. Finally it is urged that there is no evidence tending to prove that a train of defendant either threw the horse or frightened it, causing it to jump upon the fence. Here again plaintiff relies at least in part upon circumstantial evidence. Plaintiff swears...