19 Or. 371 | Or. | 1890
delivered the opinion of the court.
The first objection is directed to the refusal of the court to give certain instructions asked by the defendant and designed to raise the question as to the liability of the company for live stock killed by its moving trains where such stock stray upon the track at some point where the company is not required to fence by the statute, but to which instructions it is certified to us in the bill of exceptions that they were refused by the court for the reason that there was no evidence tending to show where the animals entered upon the track. The object of the first.
In Railroad Co. v. Casner, 72 Ill. 384, it was held that an action against a railroad company, where the evidence is that the road was not fenced at the place where the stock was killed, it is but a fair inference that the stock got upon the road at the place where it was killed. When, therefore, the want of a fence where the duty to fence is shown, and the killing of the stock is proven, the presumption is, and the jury are authorized to find, that the stock entered upon the track at that place. So that, after verdict, and in support of the judgment, especially when the court certifies there was no evidence showing where the stock entered upon the track, the defect in the allegation is cured by the inference that they entered upon the track where they were killed, and that the jury so inferred by their verdict. In the case of Railroad Co. v. Casner, supra, the claim was, that the evidence did not show the place where the stock got upon the track, but the court said.1 ‘ ‘But the evidence was that the road was not fenced where the stock was killed, and, in the absence of any other proof, it would be but a fair inference that the stock got upon the road at the place where it was killed.” It does not seem to me the objection is tenable in any view. But I do not understand the statute requires that the point of entry be alleged. Section 4048 provides that in every action to recover the value of live stock mentioned in section 4044—that is, killed on an unfenced track — “so killed, * * * proof of such killing or injury shall of itself be deemed and held to be conclusive evidence in any courfcof this State of negligence.” So that when it is alleged and proved that the defendant company failed to fence, or-its track was unfenced, and that the plaintiff’s stock was killed or injured upon or near the track by a moving
In Hindman v. Railroad Co., 17 Or. 619, Thayer, C. J in construing these identical provisions, said: “Under these provisions, it would seem that a plaintiff ■ is entitled to recover against a railroad company for the killing or injury of his stock by alleging and proving that the company owned or operated the railroad; that its track was unfenced, and that the plaintiff’s cattle or horses were killed or injured, as the case might be, on or near the track by a moving train, engine or cars upon said track; that the company will be allowed to defeat the recovery by proof of contributory negligence, etc. It would seem to be plain from the statute, and the construction given to it in Hindman v. Railroad Co., supra, that it is not necessary to allege or prove the point of entry or that proof of entry is material except when the stock is killed where the company is not bound to fence, as a public highway, which has entered where its track is unfenced, and the duty to fence was imposed, and such is the direct consequence of the neglect to fence. In such a case, the killing or injury, although it took place on a highway, owes its inception to the neglect or omission of the company to fence its track, and is the direct and proximate result of it; and, in legal contempla ■ tion, the place of the injury is inseparably connected with the cause of the injury, which is the ground of the action and within the statute. In cases of this sort, in order to show that the killing of the stock was within the operation of the statute, although it occurred at a place outside of it, the plaintiff would be required to show that the stock entered the track where the law required the company to fence, but where it had omitted to do it, and that the killing was the direct and proximate result of it. While, therefore, the allegation might be better stated, it is not subject to the objection urged.
The other instruction refused and excepted to was intended, as the argument indicates, to throw upon the
It follows that the judgment must be affirmed.