Patrie v. Oregon Short Line Railway Co.

• Citation: 6 Idaho 448,56 P. 82
• Parties: PATRIE v. OREGON SHORT LINE RAILROAD CO
• Decision Date: 27 January 1899
• Court: Idaho Supreme Court

56 P. 82

6 Idaho 448

PATRIE v. OREGON SHORT LINE RAILROAD CO

Supreme Court of Idaho

January 27, 1899

RAILROADS-FENCING TRACKS.-Under the provisions of section 2679 of the Revised Statutes, railroad corporations must make and maintain a good and sufficient fence on both sides of its track where the line passes through private land.

SAME-STOCK KILLED.-If it fails to do so, it is liable for stock killed at the point where it is required to fence its track.

SAME-LIABILITY OF RAILROAD-STALLION RUNNING AT LARGE.-Under the provisions of section 1240 of the Revised Statutes, and act amendatory thereof (Sess. Laws 1891, p. 48), a stallion that escaped from its owner without his fault, and is killed by a railroad, at a point where the company is required by law to fence its track, and has not done so, is liable to the owner for the value of the stallion.

(Syllabus by the court.)

APPEAL from District Court, Fremont County.

Judgment sustained, with instructions. Costs of appeal awarded to respondent.

P. L Williams and Joseph H. Blair, for Appellant.

Under the evidence and peculiar circumstances of this case, as shown by the evidence, it is as reasonable to infer, or believe, that the horse had gone upon the right of way anywhere along the right of way, outside of plaintiff's land, as from it; and further, as a matter of law, as the plaintiff himself had no fence on any side of his own land there was no legal obligation or duty on the part of the defendant to have a fence on the side abutting plaintiff's land; that a fence, abutting a short piece of railroad track, without fences on any other side, would not prevent cattle or horses from going around at either end, at pleasure, and getting within the fence. The legislature expected a natural and sensible construction of section 2679 of the Revised Statutes; and we submit that such a construction does not require a railroad company to fence abutting lands, unless they are inclosed on the remaining sides. The meaning of our statute is that when we cut a man's land, which is inclosed and in actual use, in two we shall fence those sides of it which abut our right of way; and when we only abut one side, then we are to fence on that side only. It is not the fencing of our right of way where it is contiguous to the individual whose land, lying there, is elsewhere inclosed, merely; but it is the fencing of his stock on, to his own land as well, and also. We are required to fence there for his benefit. And the penalty for failure is the payment for his stock killed by reason of such failure to do what the statute requires. (1 Thornton on Railroad Fences and Private Crossings, Including Injuries to Animals on the Right of Way, sec. 43; Pierce on Railroads, 401.) Redfield lays down the same rule in his work on the Law of Railways, sixth edition, volume 1, page 507 et seq. (2 Rorer on Railroads, 1380; Jackson v. Rutland etc. R. R. Co., 25 Vt. 150, 60 Am. Dec. 246.) It is not the law that the mere killing of a domestic animal by a railroad train is evidence of negligence. This question has frequently been before the courts and invariably ruled against the plaintiff, except where the general rule of law is abrogated by positive statute. (Scott v. Wilmington etc. R. R. Co., 4 Jones, 432; Indianapolis etc. R. R. v. Means, 14 Ind. 30; Illinois Cent. R. R. v. Reedy, 17 Ill. 580; Chicago etc. R. R. Co. v. Patchin, 16 Ill. 198, 61 Am. Dec. 65. See, also, Pierce's American Railway Law, 357.) Whatever right this plaintiff, or the other owners along there had, or ever had, to a fence where his and their lands abut our right of way, he and they have, by their conduct, entirely and absolutely waived. (Enright v. San Francisco etc. R. R. Co., 33 Cal. 230.) "The question of negligence and contributory negligence," says Mr. Beach on Railways, section 696, "in actions for the killing of livestock turns largely upon the fence laws of the state, whether they require the owners of cattle to fence them in, or whether it is the duty of the company to fence them out. No recovery can be had if the owner has permitted them to run at large contrary to law." (Citing Vanhorn v. Burlington etc. Ry. Co., 63 Iowa 67, 18 N.W. 679; Lyons v. Terre Haute etc. R. R. Co., 101 Ind. 419; Carey v. Chicago etc. Ry. Co., 61 Wis. 71, 20 N.W. 648; and see Beach on Contributory Negligence, secs. 237, 238.)

E. E. Chalmers and S. C. Winters, for Respondent.

Section 2679 of the Revised Statutes of Idaho makes it the duty of railroad companies to make and maintain a good and sufficient fence on either or both sides of their track or property, whenever the line of their road at any time passes through or along or abuts upon, or is contiguous to, private property or inclosed land in the possession of another. Statutes of this kind and character are intended for the benefit not only of the adjoining owners, but for the public generally. (1 Rorer on Railroads, 639, 640, and cases cited; Atchison etc. R. Co. v. Reesman, 9 C. C. A. 20, 60 F. 370. These statutes are police regulations, and are intended for the benefit of the general public, and to this effect is the most unanimous weight of judicial authority. (3 Elliott on Railroads, sec. 1190; Jackson v. St. Louis etc. R. Co., 43 Mo.App. 324.) The fencing of a railroad track required by the statute implies the construction and maintaining of sufficient cattle-guards at the end of fence and at railroad crossings. In some states it is imposed by express statutory provision, but where it is not so expressed by statutory provision, the same is implied from the statute requiring the company to fence. (3 Elliott on Railroads, sec. 1198, notes 3 and 4, and cases cited in notes; 1 Rorer on Railroads, 627, 628; New Albany etc. R. Co. v. Pace. 13 Ind. 411.)

SULLIVAN, J. Huston, C. J., and Quarles, J., concur.

OPINION

SULLIVAN, J.

This is an action to recover the value of five horses alleged to have been carelessly and negligently killed by the defendant railroad company. In addition to the allegation of the careless and negligent killing of said stock, the complaint alleges that the defendant had neglected and refused to make and maintain a fence along its right of way at the points where said horses were killed, as by law required, and that said horses casually, and without the fault of plaintiff, strayed upon the grounds and track of defendant, and were killed by the engine and cars of the defendant. The cause was tried by the court, with a jury, and a general verdict rendered in favor of the plaintiff for the value of said horses, to wit, $ 365. The jury was required to answer certain particular questions of fact submitted to them by the court, and under one of said questions the jury found that the engineers and persons in control of the trains by which said animals were killed were using reasonable and ordinary care in running said trains. This, it is conceded, disposed of the issue of the killing of said horses by the careless and negligent running of said trains. A motion for a new trial was made, and, before it was heard, the plaintiff, who is respondent here, made an offer in writing to remit from the judgment the value of the horse and mare killed near defendant's milepost No. 204 1/2, thus reducing the judgment for damages to $ 320. The motion for a new trial was denied, and the appeal is from the order overruling the motion for a new trial, and from the judgment.

It appears that said horses were killed on three several days and between mile posts Nos. 203 and 204 1/2, on what is known as the "Utah and Northern Railway," north of Market Lake station, which station is situated on section 32, as per government survey. It also appears that the track of the defendant extends nearly due north from said station, and runs through sections 29, 20, and 17, as per government survey, and about two hundred yards...