Zenier v. Spokane Intern. R. Co., No. 8316
| Court | United States State Supreme Court of Idaho |
| Writing for the Court | SMITH; TAYLOR |
| Citation | 300 P.2d 494,78 Idaho 196 |
| Decision Date | 10 July 1956 |
| Docket Number | No. 8316 |
| Parties | Royden ZENIER, Plaintiff-Respondent, v. SPOKANE INTERNATIONAL RAILROAD COMPANY, a corporation, Defendant-Appellant. |
Page 494
v.
SPOKANE INTERNATIONAL RAILROAD COMPANY, a corporation, Defendant-Appellant.
[78 Idaho 197]
Page 495
Greene & Hunt, Sandpoint, Whitla & Knudson, Coeur d'Alene, for appellant.[78 Idaho 198] Nixon & Mitchell, Bonners Ferry, for respondent.
SMITH, Justice.
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.
[78 Idaho 199] 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.
Page 496
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.
[78 Idaho 200] 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[78 Idaho 201]
Page 497
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...
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Leliefeld v. Johnson, No. 12983
...in limine, the trial court relied upon Otts v. Brough, 90 Idaho 124, 409 P.2d 95 (1965) and Zenier v. Spokane International Railroad Co., 78 Idaho 196, 300 P.2d 494 (1956). In Otts, this Court considered an appeal from a grant of summary judgment. Plaintiff Otts had fallen through an openin......
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Watson v. Navistar Intern. Transp. Corp., Nos. 16850
...I.R.E. 407. In two pre-I.R.E. cases, Otts v. Brough, 90 Idaho 124, 409 P.2d 95 (1965), and Zenier v. Spokane International Railroad, 78 Idaho 196, 300 P.2d 494 (1956), we held that [121 Idaho 664] evidence of subsequent repairs was material as bearing upon the recognition of a defect which ......
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Jewett v. Williams, No. 9104
...Idaho 502, 507, 275 P.2d 663, 665; Coffin v. Cox, 78 Idaho 111, 117, 298 P.2d 742, 745; Zenier v. Spokane International Railroad Company, 78 Idaho 196, 205, 300 P.2d 494, 500; State v. Davidson, 78 Idaho 553, 571, 309 P.2d 211, 223; Wurm v. Pulice, 82 Idaho 359, 364, 353 P.2d 1071, 1074. We......
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Otts v. Brough, No. 9674
...as bearing upon respondent's recognition of a defect which he was duty bound to remedy. Zenier v. Spokane International Railroad Co. 78 Idaho 196, 300 P.2d 494 (1956); Shelton v. Southern Ry. Co., 193 N.C. 670, 139 S.E. 232 (1927); Carlton v. Rockland T. & C. St. Ry., 110 Me. 397, 86 A.334 ......
-
Leliefeld v. Johnson, No. 12983
...in limine, the trial court relied upon Otts v. Brough, 90 Idaho 124, 409 P.2d 95 (1965) and Zenier v. Spokane International Railroad Co., 78 Idaho 196, 300 P.2d 494 (1956). In Otts, this Court considered an appeal from a grant of summary judgment. Plaintiff Otts had fallen through an openin......
-
Watson v. Navistar Intern. Transp. Corp., Nos. 16850
...I.R.E. 407. In two pre-I.R.E. cases, Otts v. Brough, 90 Idaho 124, 409 P.2d 95 (1965), and Zenier v. Spokane International Railroad, 78 Idaho 196, 300 P.2d 494 (1956), we held that [121 Idaho 664] evidence of subsequent repairs was material as bearing upon the recognition of a defect which ......
-
Jewett v. Williams, No. 9104
...Idaho 502, 507, 275 P.2d 663, 665; Coffin v. Cox, 78 Idaho 111, 117, 298 P.2d 742, 745; Zenier v. Spokane International Railroad Company, 78 Idaho 196, 205, 300 P.2d 494, 500; State v. Davidson, 78 Idaho 553, 571, 309 P.2d 211, 223; Wurm v. Pulice, 82 Idaho 359, 364, 353 P.2d 1071, 1074. We......
-
Otts v. Brough, No. 9674
...as bearing upon respondent's recognition of a defect which he was duty bound to remedy. Zenier v. Spokane International Railroad Co. 78 Idaho 196, 300 P.2d 494 (1956); Shelton v. Southern Ry. Co., 193 N.C. 670, 139 S.E. 232 (1927); Carlton v. Rockland T. & C. St. Ry., 110 Me. 397, 86 A.334 ......