Action
by Rebecca Turney against the Southern Pacific Company. From
a judgment for plaintiff, defendant appeals. Affirmed.
This is
an action to recover damages for an injury suffered by the
plaintiff through the alleged negligence of the defendant. In
1868 a public road or highway, about 60 feet wide, from
Canemah, in Clackamas county, south to Parrott's Farm
was inclosed by fences of abutting property owners on one
side, and the Willamette river on the other. In November
1868, the county court, upon the application of
defendant's predecessor in interest for permission to
occupy the road with its railway track, made the following
order:
"In
the Matter of the Occupation of the County Road by O.C.R.R
Co. of Salem, Leading from Canemah to Parrott's Farm
in Clackamas County. On this day came said company, by Geo.
E. Cole and the county by Johnson & McCower, and, after
hearing the argument of counsel, it was ordered by the
court that the Oregon Central Railroad Company of Salem be
allowed to use and occupy any part of the road leading from
Canemah to Parrott's Farm, in Clackamas county, for a
railroad track or bed, said company repairing all damages
wherever it occurs in constructing said railroad, and in no
manner whatever obstructing said road; that the road shall
be in all respects left in as good a condition as before
said company began work. Said company also to make,
construct, and grade (wherever the said company occupy the
tract now traveled as a county road) a good and passable
track or roadway at least twelve feet wide, on a grade to
be designated by the court, upon a notice having first been
given by said company to this court at a regular term
thereof. Said company shall also construct barriers or
guards at and in all places that may hereafter be
designated by this court, and if the county road shall at
any time be injured or damaged by reason of the proximity
of the railroad track, or by any act of said company, then
said company shall be compelled to repair the same, without
delay, upon notice being given by the road supervisor of
the district in which said road may be located."
When it
came to the actual construction of the railway along the
county road, the company wished to have the grade of the road
established, and upon its application another order in
reference thereto was made and entered by the county court as
follows:
"In
the Matter of the Application of the Oregon Central
Railroad Company of Salem for the Use of the County Road
from Canemah to Parrott's Farm. This matter came before
the court upon the representation of Hon. Geo. E. Cole,
agent of said company, that it was desirable to have an
order of this court fixing the grade of such public road at
points where the present traveled track is taken for the
track or roadway of said company. Whereupon the court, by
the favor of said company's agent, proceeded to make a
personal inspection of said road and the work which had
been done. And by such examination it was found that
neither the spirit nor letter of the order heretofore made
by this court in granting the right of way to said company
is being complied with, but that, on the contrary, said
company, in constructing said roadway or bed, are confining
the travel on the county road at places between Canemah and
Parrott's Farm to the river bank, and in some instances
to the water's edge, by building perpendicular
embankments of stone, and leaving said embankments and the
county road between them and the river without any
protection against high water, or, if any protection is
attempted, it is entirely inadequate for the purpose, and
does not make the road as secure or convenient as before
the company commenced work. Said company is therefore
referred to the order heretofore made by this court, as
above mentioned, as a basis or guide in controlling their
doings in reference to said road, and the condition in
which said county road must be left after being by them in
any manner interfered with in constructing said railroad.
This court readopts the same order as the basis of its
action in making the following additional order, to wit:
That said company, in confining the travel on said county
road to the bank of the river in narrower limits than the
sixty feet allowed by law to public roads, creates a
necessity for a rockwall protection, and that, when they
desire to put in such walls at a greater angle than 45
degrees, they must build such stone walls of very large or
heavy material, and, when the angle is 45 degrees or less,
the stone must be at least one foot in diameter, and in all
cases the openings or interstices in such walls must be
well filled with spalls or stone chips as in ordinary stone
wall made in constructing their roadbed. It is further
ordered that in any case where said company changed the
travelway of the county road, or remove or change any
bridge or filling on said county road, said new roadway,
bridge, or filling shall be graded as high, and made as
good, convenient, and secure in all respects, as the
traveled way before said road was interfered with. And it
is ordered that during the progress of said work said
company must keep the travelway on said road open, safe,
and convenient for the use of the public, and when work is
suspended for winter said road must be left in good
condition, and not unsafe or mirey, as in many places
during the winter just passed."
In
pursuance of these orders the track of the railway company
was laid along the county road on the east side near the
fences of the abutting property owners, and, as a
consequence, the travel was confined to the space between the
track and the river, thereby endangering the safety of teams
and stock passing along the highway. In 1877 the railroad
petitioned the county court for permission to change the
location of its road, and after due consideration the
following order in reference thereto was made and entered:
"It
is further considered, ordered, and adjudged that the said
Oregon & California Railroad Company have leave to, and it
is hereby authorized to, change the location of its
railroad track, and the right of way now in use over the
county road between Canemah and Parrott creek, as at
present located, from a point near the county road crossing
at F. Paquet's property, south of Canemah, for the
distance of (5,100) five thousand one hundred feet in a
southerly direction, as follows: That is to say, said
Oregon & California Railroad Company have leave to, and is
hereby authorized to, relocate its said road a distance of
fourteen (14) feet nearer the river from railroad crossing
at Paquet's property, and running from said point
fourteen feet northwesterly from said crossing in a
southerly direction, and parallel with the line of the
railroad as at present located a distance of five thousand
one hundred feet, so that the road, when relocated, shall
be, except where it deflects to a connection with the road
as now constructed, fourteen (14) feet nearer the river
than the present location. Said company, however, shall
fill up so much of the holes between said track and the
fences as will fall within a twelve-foot roadway, and cause
the same to be made level, and also construct a fence or
barrier between the traveled roadway and the railroad track
for said distance of five thousand one hundred feet, and
place the cattle guard upon its road at each end of said
fence, provided, if at any time said railroad company is
prevented by legal proceedings by property owners adjacent
thereto, or otherwise, from building or maintaining said
fence, said company shall thenceforward be absolved from
the obligations to construct or maintain the same, as the
case may be, so far as thus prevented, all at its own
expense.
"It
is further considered and adjudged that said Oregon &
California Railroad Company be, and it is hereby, relieved
and exonerated from making any repair, building any
barriers, stone walls, or otherwise, along said road,
except so far as said company may deem necessary for its
own protection.
"It
is further ordered that the contract entered into between
this county and said Oregon California Railroad Company, of
date August 3d, 1869, entered of record on page 344 of Book
No. 2 [3] of the records of this court, be modified to the
extent and in the manner herein specified, and that, except
as hereby changed and modified, said contract be and remain
in full force and effect, and when said changes are made
the same be examined and approved by the county
court."
In
accordance with this order the railway company moved its
track, constructed a fence between the same and the traveled
way east thereof, making a lane or road about 25 feet wide
and put in the cattle guards as required, ever since which
time all the travel on the highway, except foot passengers
and bicyclists, has been confined to the part of the road
east of the fence built by the railway company, and between
it and the fences of the abutting property owners.
Pedestrians and bicyclists, however, have continued to use
the portion of the highway inclosed by the railway company
without objection or protest from it; and at the time of the
injury to the plaintiff there was a well-beaten and plainly
marked footpath a short distance west of the railroad track,
and between it and the river. On September 13, 1900, the
plaintiff, who lives on the county road, about a mile south
of Canemah, while going from her home to Canemah along the
footpath, saw a freight train of the defendant company
approaching, and stepped off the path toward the river; and,
while the train was passing her, a stick of wood was...
