Thayer v. Snohomish Logging Co.

• Decision Date: 26 April 1918
• Docket Number: 14385.
• Citation: 101 Wash. 458,172 P. 552
• Court: Washington Supreme Court
• Parties: THAYER v. SNOHOMISH LOGGING CO.

172 P. 552

101 Wash. 458

THAYER v. SNOHOMISH LOGGING CO.

No. 14385.

Supreme Court of Washington

April 26, 1918

Department 2. Appeal from Superior Court, Snohomish County; Guy C Alston, Judge.

Action by Charles E. Thayer against the Snohomish Logging Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Louis A. Merrick, of Everett, for appellant.

Cooley Horan & Mulvihill, of Everett, for respondent.

HOLCOMB J.

The action is one to recover damages, and the appeal is taken upon the findings of fact, conclusions of law, and judgment. Appellant assigns three errors: (1) That the conclusions of law do not follow from the findings of fact and are not supported thereby; (2) that the judgment is not supported by the findings of fact; (3) that the conclusions of law and judgment are not supported by the findings of fact.

In the complaint the negligence charged against the respondent is set forth in paragraph 4 as follows:

'That on or about the 5th day of July, 1916, the said horse, because of the neglect of the defendant to fence his right of way along the track of said railway, wandered upon the track and the train of said defendant came along and drove the said horse upon a bridge upon said right of way and said horse being unable to get over said bridge the said train struck the horse and killed it, to the damage of the value of $350.'

The court found that there was no evidence that a train or other vehicle operated by the defendant struck the horse or frightened or interfered with the horse in any way. Since the evidence is not here, this finding is conclusive upon appellant and upon this court.

Appellant however, contends that the respondent is liable because of the unfenced right of way and trestle, without any affirmative action upon the part of respondent or its agents even though there were no trains operated on the road. He argues that the damage suffered by him is the same whether the horse fell through the trestle upon the respondent's right of way which was unfenced or was killed by collision with a moving train upon the right of way which was unfenced, and that the Legislature so intended in enacting sections 8731 and 8732, Rem. Code. These provisions were taken from the acts of the Legislature of 1903 and 1907. The title of Acts 1903, c. 158, is as follows:

'An act compelling railroads to fence their rights of way and to protect the owners of stock injured by moving railway trains, declaring a law of negligence with regard to stock injured by railway trains.'

Section 3 of that act provides that in all actions against persons, etc., operating steam railroads, for injuries to stock by collision with moving trains, it is prima facie evidence of negligence on the part of such railway to show that the railway track was not fenced with a substantial fence or protected by a suitable cattle guard at the place where the stock was injured or killed. The title of Acts 1907, c. 88, is as follows:

'An act compelling railroads to fence their rights of way and to protect the owners of stock injured by moving railway trains, declaring a law of negligence with regard to stock injured by railway trains.'

This act is the same as the act of 1903, except that it includes electric railroads and trains, while the former refers only to steam railroad trains. The second section of each of the acts cited provides that every such railroad shall be liable for all damages sustained in the injury or killing of stock in any manner by reason of the failure of such person, company, or corporation to construct and maintain such fence or crossing or cattle guard, etc. This provision of the enactment in question is the basis upon which appellant forms his theory. But the title of each of the two acts referred to 'stock injured by moving railway trains,' and declared the law of...