Zenier v. Spokane Intern. R. Co.
| Decision Date | 10 July 1956 |
| Docket Number | No. 8316,8316 |
| Citation | 300 P.2d 494,78 Idaho 196 |
| Parties | Royden ZENIER, Plaintiff-Respondent, v. SPOKANE INTERNATIONAL RAILROAD COMPANY, a corporation, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Greene & Hunt, Sandpoint, Whitla & Knudson, Coeur d'Alene, for appellant.
Nixon & Mitchell, Bonners Ferry, for respondent.
Appellant's railroad extends generally in an east-west direction through the North Half of Section 31, Township 62, Range 1 East of the Boise Meridian in Boundary County. Respondent owns cultivated lands in said section adjoining and to the north of appellant's railroad right of way.
The west side of respondent's land is bordered by the drainage ditch and dike, extending in a north-south direction, of Drainage District No. 1 of Boundary County. A small maintenance road runs along the top of the dike. Just west of the south-west corner of respondent's land where this dike road crosses the railroad, appellant maintains a wire gate in good condition. The crossing is known as the Fish Creek Crossing.
Appellant's railroad right of way borders the south line of respondent's land for a little over a mile. Appellant during 1953 maintained a wire fence along its right of way for a distance of approximately one-eighth mile at the west end of the south borderline of respondent's land. At the east end of this fence a stub fence extended southerly and then up the railroad fill to a point near the railroad track, but there was no cattle guard between the end of the stub fence and the track.
Except for the one-eighth mile there was no fence on the south borderline of respondent's land. At times in the past that portion of respondent's south line had been fenced but the fence had been allowed to run down and deteriorate.
Appellant's railroad bed is on a fill extending east from the Fish Creek Crossing along the full length of respondent's south line. The fill is about 12 feet wide on top and the sides slope downward and outward, at about a 45-degree angle, some 15 feet on the slope from the top to the bottom of the fill. The fill is made mostly of large rock on the sides with gravel on top.
December 7, 1953, at about 11:50 A.M., respondent's registered 13 year old quarter-horse mare and her 9 months old purebred stud colt were struck and thereby killed by appellant's locomotive at a place just to the east of the Fish Creek Crossing where appellant's railroad right of way adjoins respondent's cultivated fields.
Respondent's action is grounded on failure of appellant to erect and maintain a fence along its right of way adjoining respondent's land, by reason whereof respondent's two horses entered in and upon appellant's right of way and railroad track where they were struck and killed by appellant's locomotive. Respondent sought to recover $900 damages as the value of the horses and $300 statutory attorneys fees.
Appellant generally denied the allegations of respondent's complaint and affirmatively alleged negligence on respondent's part in allowing his animals to run at large in said vicinity.
Trial of the action was had by jury. The jury returned a verdict, upon which the trial court entered judgment, in favor of respondent totaling $1200, made up of damages of $600 for loss of the mare and $300 for loss of the colt, and statutory attorneys fees of $300.
Appellant perfected an appeal from the judgment.
Several of appellant's specifications of error present for review the main question involved, as appellant states it to be, 'In this case the defendant [respondent] has simmered his case down to the lack of a lawful fence.'
The duty of a railroad company to erect and maintain lawful fences along its railroad, and liability for its failure to do so is set forth in I.C. § 62-406, which provides in part:
'Every railroad company or corporation operating any steam or electric railroad in this state shall erect and maintain lawful fences, not less than four feet high, on each side of its road, where the same passes through or along inclosed or adjoining cultivated fields or inclosed lands, * * *.
'Until such fences, * * * shall be duly and properly made, installed and maintained, such railroad company or corporation shall be liable in a civil action to any and all person or persons who may sustain any loss, injury or damage by the wounding, maiming or killing of any horse [and certain other animals] * * * which shall be done by such railroad company * * *, in the operation and management of engines, cars, or other rolling stock, upon or over such railroad, whether such person or persons operating or in charge of such engine, cars or other rolling stock were guilty of negligence or not; and such railroad company or corporation shall also be liable in a civil action to any and all persons who may sustain any loss, injury or damage by the wounding, maiming or killing of any horse * * * which shall be done by such railroad company * * * in the operation or management of engines, cars, or other rolling stock upon or over such railroad, if any such animal or animals escape from adjoining lands and come upon the right of way or railroad tracks of such railroad company or corporation, occasioned by the failure of such railroad company or corporation to construct and maintain such fences, * * * whether the person or persons operating or in charge of such engine, cars or other rolling stock were guilty of negligence or not; but after such fences * * * shall have been duly made, installed and maintained, such railroad company or corporation shall not be liable for any such damages, unless negligently or wilfully done, and in all actions for the recovery of damages under this section, proof of the wounding, maiming or killing of such animal or animals by such railroad company or corporation, shall be prima facie evidence of negligence or wilfullness on the part of such railroad company or corporation.'
A lawful fence is defined by I.C. §§ 35-101 and 35-102. Such a fence must be not less than four and a half feet high, and the bottom board, rail, pole or wire must not be more than twenty inches above the ground, with the space between the top and bottom well divided; provided that a stone fence or a worm fence of rails may be four feet high; also a fence may be made in whole or in part of brush, ditch, pickets, hedge or other materials, but to be lawful such a fence must be equal in strength and capacity to turn stock as compared to other constructed fences described.
Respondent testified that with the exception of the west one-eighth of a mile at the south border of his land, there was no manmade fence, nor any barricade 'other than the railroad fills, very large rock, and like that' along his south border during 1953.
His testimony then appears:
'Q. Well, could horses negotiate the fill and go on up the railroad tracks?
A. In spots.
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Mr. Tinney, respondent's witness, after stating his familiarity with respondent's ranch, including the cultivated field adjoining appellant's railroad, testified:
'Q. And is it possible for horses to go through that field up to the track?
A. Very easily.'
Mr. Casey, who was appellant's section foreman for some time prior to and during December, 1953, gave testimony of a negative character. When asked if stock could easily climb the fill, he stated,
Mr. Casey then testified that the railroad fill had been put in before his time and that he had buried cattle, and horses too, along the track where it was not fenced, i. e., where there had been a fence along the fill on 'the north side for a ways,' which had been 'allowed to deteriorate and go down.'
Mr. Casey also testified that he remembered driving three of respondent's horses off the railroad track at a point about one-half a mile toward Bonners Ferry, east from where respondent's two horses were killed, without placing the time of such incident, but placing its location in the area where is situate the railroad fill bordering respondent's cultivated land; and respondent had some five or six horses in addition to the quarter-horse mare and her colt.
Mr. Casey 'thought' that the mare and colt came through the gate at the Fish Creek Crossing since on his daily tours of inspection five days a week he had found the gate left open frequently, and the bodies of the horses, when found, were in the near vicinity of the crossing at the foot of the railroad fill.
The testimony of respondent is positive as to his tracing the tracks of the horses east from the vicinity of the Fish Creek Crossing to the end of the one-eighth mile fence where the cattle guard used to be. In that respect he testified, Respondent described how he could tell that the animals had been running; his testimony in that respect being:
He was able to place their entry onto the railroad track past where the one-eighth mile fence ended and where there was no cattle guard. His testimony in that regard...
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