111 P. 242 | Or. | 1910
Lead Opinion
delivered the opinion of the court.
This is an action to recover damages from the railroad company for loss of stock killed upon defendant’s right of way by a moving train. The complaint alleges that plaintiff is the owner of an inclosed tract of land, through which, for a distance of three miles defendant’s railroad is located; that defendant neglected to maintain a lawful fence along such track; that on the 18th of June, 1907, two of plaintiff’s horses, pasturing in such inclosure, wandered therefrom over and upon defendant’s track, where the same was unfenced, or improperly fenced, and were struck by a moving train and killed. And in a second count similar allegations are made as to seven head of cattle which were killed on December 26, 1907. He asks for damages in the sum of $840.
The answer denies each allegation of the complaint, except plaintiff’s ownership of the land, and that defendant operates a railroad across the same, and alleges affirmatively that the road is inclosed by a lawful fence
“The party of the second part [the railroad company] to construct three wagon crossings over its track and two cattle crossings under or over its track, in the discretion of the grantors.”
This does not constitute an agreement for gates, or a. waiver of an inclosure of the track by a lawful fence. If this stipulation in the deed contemplates an open crossing, as may reasonably be inferred, it will not release the defendant from the duty to fence its track, except that plaintiff would thereby waive an inclosure at that point, and the crossing would remain open at plaintiff’s risk; but, if it contemplates gates, they must be main
Plaintiff’s remedy was not upon contract, because none has been established; nor has plaintiff, by using the gates, waived his remedy in tort: Poler v. New York Central Railroad Co., 16 N. Y. 476. The case of Enright v. S. F. & S. J. R. R. Co., 33 Cal. 230, 236, cited by defendant upon this question, is not in point, for the reason that, in that case, the defective construction of the barway was at the landowner’s request for his own convenience, and was, of course, a waiver of the statutory requirements.
We find no prejudicial error in the record, and the judgment is affirmed. Affirmed.
Rehearing
On Petition for Rehearing.
[112 Pac. 416.]
delivered the opinion of the court.
The other questions are answered in the opinion. The petition is denied. Affirmed: Rehearing Denied.