Wilmot v. Oregon R. Co.

• Decision Date: 21 November 1906
• Citation: 48 Or. 494,87 P. 528
• Parties: WILMOT et al. v. OREGON R. CO.
• Court: Oregon Supreme Court

87 P. 528

48 Or. 494

WILMOT et al. v. OREGON R. CO.

Supreme Court of Oregon

November 21, 1906

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by Frank Wilmot and others against the Oregon Railroad Company. From a judgment for defendant, plaintiffs appeal. Reversed, and new trial ordered.

George W. Joseph, for appellants.

Arthur C. Spencer, for respondent.

BEAN C.J.

This is an action to recover the value of four horses killed by the moving trains of the defendant on an unfenced portion of its track, but which the plaintiffs claim and allege should have been fenced.

The complaint states a cause of action for common-law negligence and also under the statute making a railway company liable for stock killed on an unfenced track. The court below, in accordance with the doctrine approved in Harvey v. Southern Pacific Co., 46 Or. 505, 80 P. 1061 required plaintiffs to elect upon which cause of action they would proceed, and they elected to rely upon the statutory liability. The defense is that the animals entered upon the track at the depot grounds of the defendant, and that plaintiffs were guilty of such contributory negligence in suffering and permitting them to run at large at the place where they were killed as will bar a recovery. The defendant owns and operates a railroad from Portland to the eastern boundary of the state. Bridal Veil is a station between Portland and The Dalles, used principally for the shipment of lumber. It consists of station grounds, a depot building side tracks, switches, and turnouts necessary and proper for the handling of the business at that point. A switch or side track used by it in the transaction of its business leaves the main track at a point 200 or 300 feet east of the depot building, and passing south of such building, intersects the main track again about 1,800 feet west thereof. Along this side track are situated the planing mill, lumber yards sheds, and other buildings of the lumber company. In 1902, the defendant constructed on the north side of the main track a passing track 3,000 feet long which commences about 700 or 800 feet west of the depot building and opposite the lumber platform of the lumber company and extends about 2,200 feet east of the depot. About 100 feet east of this passing track the defendant constructed a cattle guard with fences connected therewith on either side. From this point east the track is fenced, but it is not inclosed between the cattle guard and the west end of the depot grounds. The plaintiffs live and are in business at Bridal Veil. On the evening of April 11, 1904, they turned their horses out to graze on the uninclosed lands south of the depot as they had been accustomed to do for some time. During the night the horses strayed onto the track of the defendant, and were killed by its moving trains. The evidence tended to show that the horses entered upon the tract west of the east end of the passing track, but were run down and killed east of the cattle guard. The court below directed a nonsuit on the ground that the place of entry was within the depot grounds of the defendant and at a place it was not required to fence. The statute makes a railroad company liable for the value of stock killed by its moving trains, engines, or cars, upon or near an unfenced track (B. & C. Comp. § 5139), and is broad enough to include animals killed at the depot grounds. It has, however, been held that the statute did not extend to depot grounds because the purposes for which they are used, and the right of public convenience are inconsistent with the obligation to fence at that point. Moses v. Southern Pacific Co., 18 Or. 385, 23 P. 498, 8 L.R.A. 135; Sullivan v. O.R. & N. Co., 19 Or. 319, 24 P. 408.

The question for decision upon the trial, therefore, was whether the place where the animals of the plaintiffs entered upon the track of the defendant was within or without the depot grounds. If within the depot grounds, the plaintiffs cannot recover in this action, but if not, defendant is liable under the statute unless the plaintiffs were guilty of contributory negligence. The parties differ radically as to whether the question thus presented is one of law or of fact. The plaintiffs claim that it was a question of fact, and should have been submitted to the jury, while the defendant insists that it was a matter of law for the court. The rule is, we take it, that whether a railway company shall fence its track at its depot grounds is a question of law, and, if the testimony shows that animals entering upon such grounds are injured or killed by moving trains, the owner cannot recover under the statute, and the liability of the company is for the court. Moses v. Southern P. Co., 18 Or. 385, 23 P. 498, 8 L.R.A. 135; Eaton v. Oregon R. & Nav. Co., 19 Or. 371, 391, 24 P. 413; Eaton v. McNeill, 31 Or 128, 49 P. 875; Harvey v. Southern P. Co., 46 Or. 505, 80 P. 1061. But it is often a disputed question as to whether a certain point constitutes a part of the depot grounds, and if the evidence is conflicting or different inferences may be drawn from it, the question is for the jury, and not the court. Mr. Elliott says: "While it is purely a question of law whether or not a railway company shall fence at...