18 Or. 385 | Or. | 1890
Lead Opinion
This is an action to recover ■ damages for negligence in the management of the defendant’s railroad, whereby a horse owned by the plaintiff was killed. The answer, after making the usual denials, sets up separately as a defense that the injury and damages were caused by the contributory negligence of the plaintiff; all of which he denied in his reply. There was a trial had, resulting in a verdict and judgment for the plaintiff, from which this appeal is taken.
By his brief, the counsel for the defendant, who is the appellant, says that the appeal involves but one question: “What is the liability of a railroad company for an injury done by a moving train to a horse running at large, and seeking pasturage upon the depot grounds of the company with the knowledge and permission of the owner?” This question arises out of an exception to a modification of an instruction asked, and is as follows: '“If the jury believes from the evidence that the plaintiff voluntarily permitted his horse to run at large, and the horse was accustomed to pasture on the depot grounds of the defendant, and wandered on the railroad track and was killed, such con-duct by the plaintiff would not preclude a recovery in this case by the plaintiff, unless the defendant’s servants exercised the ordinary care of prudent men in running the train at the time of the accident. In this case, if yon
The facts upon which this instruction was based were to this effect: That the evidence tended to show that the horse was, at the time he was struck by the locomotive, running at large on the depot grounds of the defendant, in the town of Tangent, and that the locomotive was attached to one of the regular passenger trains, which passed through the town north to south at one o’clock P. M., and was upon the regular time; that the engineer signaled his approach to the station by sounding the whistle when about three hundred yards distant therefrom, etc.; that the horse was, during all of said time and prior to the first sounding of the whistle for the station, running at large at or near said depot grounds, and had at different times previously to said day been seen occasionally pasturing upon said depot grounds; that plaintiff resided in said town, and about seven hundred feet away from said depot grounds; that there is a conflict of evidence as to what the speed of the train was when said horse was first seen to go upon the track and said alarm whistle was sounded, or as to whether or not said speed was slacked before the horse was overtaken by the locomotive, and as to whether or not the engineer endeavored to and could have stopped the train after the horse went upon the track and before he was struck by the locomotive, the speed of the train when the horse went upon the track and before he was struck by the locomotive being variously estimated, by witnesses, at from eight to twenty miles per hour, and some of the witnesses testifying that the speed of the train was constantly lessened before the horse was struck, while other witnesses testified that they could not perceive that the speed of the train was at all diminished between the sounding of the alarm and the striking of the horse.
These facts show (1) that the injury to the horse occurred on the track on the depot grounds, and (2) that, as the hoi’se had been seen px-ior to the day of the accident occasionally to pasture on the depot grounds, it is presumed that he was suffered to run at large with the consent of his owner, and strayed upon the track under the circumstances indicated, and (3) that there is a conflict of evidence as to whether the engineer endeavored to check the speed of the train before striking the horse, but none that he did not sound the alarm whistle and turn the steam through the cylinder cocks to dxúve the horse from the track. Upon this state of facts, the contention of the appellant is (1) that the depot grounds are not included within the intention of the law requiring railroads to be fenced, and (2) that the plaintiff, in allowing his horse to run at large and stray upon the depot grounds and track, where he was killed by a moving train, was guilty of contributory negligence, which precludes his right of recovery. The language of the statute making railroad companies liable for killing stock “upon or near any unfenced track of any railroad in this State, whenever such killing or injury is caused by any moving train or engine or cars upon such track, ” is broad enough to include that part of the track which is contiguous to its- stations or depots. Or. Code, §§ 4044, 4045. Taking it literally, the statute would apply to the entire track of the railroad, which would necessarily include such parts of the track as lie upon its depot or station grounds, thereby rendering the railroad company absolutely liable to the owner of any stock injured, for an
Upon the next question, namely, that the plaintiff, in allowing his horse to run at large, so that he strayed upon the track, was guilty of contributory negligence, and is precluded from a recovery, the authorities are not agreed. There seems, however, to be a line of distinction between them which accounts for this difference on principle, which perhaps would not exist without it, and this is, whether the common law rule which requires the owner of stock to
In Railroad Company v. Munger, 4 N. Y. 258, which was an action to recover damages for negligence in killing the plaintiff’s oxen by running over them by a train while on the track of the defendant, the court, after reaching the conclusion that the oxen, when killed, were trespassing on the land of the defendant, under the common law rule that the owner of cattle is bound, at his peril, to keep them off the land of other persons, says Beardsley, J.: It is not pretended that the act was done 'designedly by the persons in charge, but simply that it occurred through their negligence or want of care. It is a well .settled rule of law that such an action cannot be sustained if the wrongful act of the plaintiff cooperated with the misconduct of the defendants, or their servants, to produce the damage sustained. I do not mean that the cooperating act of the plaintiff must be wrong ih intention to call for the application of this principle, for such is not the law. The act may have been one of mere negligence on his part, still he cannot recover. ” “But injuries inflieted by design are not
As the plaintiff is bound at common law to keep his cattle within his own enclosure, and liable for all damages done by them when they stray upon the lands of others, he is the party in fault; and it results, if he suffers them to stray upon the track of a railroad, they are there without right, and as trespassers, through his wrongful conduct, and if injured or killed by the negligence of the railroad or its agents in the management of its train, he must abide the consequences, upon the ground that the defendant company owes no duty of care to trespassing cattle on their Hacks, except not wantonly or -wilfully to destroy them, and that in x^ermitting the cattle to be at large,
In some of the cases, and especially the older ones, the term “gross negligence” is used as the equivalent of “wilful negligence ” as used by the later authorities, which imports act or conduct that is wilful or wanton, and to which the doctrine of contributory negligence has no application; for when the injury done the plaintiff is occasioned by the wilful and wanton act of the defendant, the negligence of the plaintiff is no defense, and so it is held by the cases referred to, with perhaps some slight excep tions to cattle trespassing on the track of railroads. As a result of this class of cases in the States in which the common law.rule prevails, it is generally considered that allowing cattle to run at large is such negligence as precludes a recovery. On the other hand, in those jurisdictions or /States in which the common law rule as to the duty of the owner of stock to keep them in Ms own enclosure is abrogated, it is generally held that a plaintiff in permitting his stock to run at large commits no unlawful act, nor is guilty of an omission of ordinary care, and if they stray upon the' uninclosed track of a railroad, and are injured or killed, although they may be regarded as tres
In Searles v. Railroad Co., 35 Iowa, 491, which was an action for negligence in killing the plaintiff’s ox by a freight train on a public highway crossing, error was assigned for refusal to give, among other, this instruction: ‘ ‘Railroad trains, when cattle are on the track, are not required to slacken their speed, or to make signals by blowing the whistle or ringing the bell at road crossings, or places where the road has not a right to fence, ” and Day, J., said: “It was held, at a very early period in the judicial history of this State, that the mere fact of permitting cattle to go at large is not a ground for imputing negligence to the owner. A railway company is liable for injuries resulting from the careless and negligent management of its trains, where the injured party does not by his own negligence contribute to the injury. It is a corollary of these two jjropositions that a railroad company must
The same language was used in Railroad Company v. Elliott, 4 Ohio St. 475, and see also Kerwhacker v. Railroad Co., 3 Ohio St. 172, in which the principles of the law under discussion was set forth with great ability and much force and cogency of reasoning. In Railroad Co. v. Mulligan, 45 Md. 493, a State in which it is the duty of owners of
The general conclusion to be deduced from this case is that the fact of merely permitting cattle to run at large near the line of a railway is not enough to excuse the company from the exercise of ordinary care and diligence to avoid injuring them when they may happen to stray upon its track, consistently with a due regard for the safety of its trains and passengers. That such acts upon the part of the owner of cattle are too remotely related to the negligence of the defendant to concur and combine with it as the proximate cause of the injury, and in the sense of the law do not constitute contributory negligence, but that the failure of the company to exercise ordinary care and diligence under the circumstances is the immediate or proximate cause of the injury or loss of property, and renders the company liable for its negligence. So manifest is the justice of this requirement not to injure or kill stock which may happen to stray upon the track, if by the exercise of ordinary care it can be prevented, that in some jurisdictions, as we have shown, in which the common law rule prevails as to the duty of owners to keep their stock within their inclosures, it has been adopted and applied. So that, speaking generally, it may be said that a railroad company is liable in damages for injury to stock caused by its negligence, where the owner has contributed to the injury no further than merely permitting them to run at large. Railroad Co. v. Patton, 31 Miss. 188; Railroad Co. v. Gorman, 26 Mo. 441; Trout v. Railroad Co., 23 Grattan, 623; Isabell v. Railroad Co., 27 Conn. 393; Railroad Co. v. Williams, 65 Ala. 74; Railroad Co. v. Irish, 72 Ill. 404; Railroad Co. v. Lebus, 14 Bush. 518; Railroad Co. v. Macon, 40 Cal. 522; 1 Thomp. Neg. 498; Beach Con. Neg. § 73.
Now, upon the facts, within which line of reasoning does the case before us come? It has been held that the
There is a marked difference between suffering stock to run at large upon uninclosed lands along the line of a railroad or adjoining its depot grounds, from which they may stray upon the track, and turning them loose uncared for and directly upon the grounds of a depot or station, covered with main and side tracks, switches, turn-outs and turn-tables, more or less constantly in use, with trains coming and going, where danger is known to exist, and where injury to them will probably happen as a consequence of the peril into which they have been voluntarily placed. In the former case, if they are killed by the negligence of the company, the act of the plaintiff is only the remote cause of the injury, while in the latter it is the proximate cause of the injury, cooperating with the negligence of the defendant to produce it. In such case the act itself is equivalent to deliberately putting the stock in a place of danger, and where injury to them is a probable consequence; the stock do not stray into a place of danger, but they are turned loose into a place where danger is known to exist, or which may be foreseen by the exercise of ordinary care, and the party cannot and ought not to recover for injuries which a^-e the direct result of his own negligence. While, therefore, an owner may suffer his stock to run at large and pasture upon uninclosed lands, if they should stray upon the track of a railway and be
Now, turning to the record, we have presumed, without any direct evidence of the fact, that the plaintiff suffered his horse to run at large, and that he wandered upon the depot grounds .and the track where the accident occurred. The record shows that he was running back and along and upon the track and away from the train when he was .struck, on the depot grounds, from forty to sixty feet from the place where he started on the rack; that when the train was about three hundred yards distant and signalled its approach to the station by blowing its whistle, the horse then was either upon the depot grounds alongside of the track or else was upon the public road, and soon thereafter was seen upon the track. Within the principles of the authorities, where it is not unlawful to allow stock to run at large, “a railroad company must respond in damages for injuries to stock through its negligence when the owner has contributed to the injury no further than merely permitting it to run at large.” Nor is there anything in the record to except the case from the operation of this principle.
There is no suggestion, upon the facts, of any special circumstances which made the conduct of the plaintiff in the premises negligent, or to charge him with a want of ordinary care. The place where the injury occurred was not a railway station in a thickly populated community, near to or adjoining some large and thriving town, netted with tracks and switches and turn-outs, at which a volume of business was done requiring the constant use of its depot grounds for its trains, passing and repassing, and where danger to roaming stock could be foreseen, and where to turn them loose would be voluntarily putting where injury to themwouldbe the natural and probable consequence.
The instruction must be examined by the light of the facts to which it is applied, and the circumstance of allowing the horse to run at large, except under special circumstances not raised by this record, is not an omission of ordinary care, and the law is, when a railroad company has injured stock through its negligence thatit'is liable, where the owner has contributed to the injury no further than merely permitting his stock to run at large. There is a large class of. cases, headed by Davis v. Mann, 10 M. & W. 546, a case much criticised, but which Judge Thompson shows has been approved by the great weight of authority (5 So. L. Rev., 835), in which the principiéis upheld, as declared by Lord Abinger, that ‘ ‘ as the defendant might by proper care have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there,” and which, as applied to the present case, is conclusive of the result already reached. And it may be observed further that that case and others were subsequently reviewed and considered by the court of exchequer, in Tuff v. Warman, 94
Dissenting Opinion
dissenting.—I am unable to concur in the result reached by the majority of the members of the court in this case. I cannot assent to the view that an owner of' domestic animals can pasture them upon the depot grounds of a railroad company without being chargeable with such a degree of negligence as will preclude his right to a recovery of damages for their injury or destruction by moving trains of cars upon the track of the road, unless done intentionally. There is no stronger evidence to my mind of carelessness and negligence upon the part of such owner than to allow the animals to go at large and wander about such places, where they are necessarily exposed to being run over and killed. My learned associate, who prepared the majority opinion herein, has with great care and research collated a large number of both English and American authorities upon the subject, and drawn as a conclusion therefrom that where the common law rule, which required the owner of stock to keep it within his own enclosure, did not prevail, his permitting it to run at large would not, if it were to stray upon a railroad track and receive injury, necessarily be such negligence as directly contributed to the injury; and he attempts to show that the common law rule referred to does not obtain in this State. As an abstract proposition, I make no contention respecting that view; but in the determination of all this class of cases, we must look squarely at the facts and circumstances in order to make a just decision. Theories and distinctions, however specious and refined, cannot disprove a self-evident truth.
It appears from the bill of exceptions that the respondent has lost two horses which have been run over and killed by rail cars upon the road in question, and it is very evident that if he had a large band, and took no better care of them than he did of the one in question, as shown
A railroad company can illy afford to run its engine and cars over an animal, and will not do so where it can possibly be avoided,' whether liable for its value' or not. The respondent had no legal or moral right to suffer his horse to be at large upon the railroad company’s depot grounds. He was thereby doing the company and the public a positive wrong, and I am opposed to his being rewarded for his unj ustifiable negligence in that particular. That his act, in allowing the animal to go where it did, directly contributed to the damages he seeks to recover, and which the jury graciously awarded to him, there can be no doubt, if viewed from a common sense standpoint. This is not a case involving the right of stock to run at large upon a range or open common. There the land is thrown open or left open by the voluntary, act of the proprietor, which is construed to be an implied license to the owners of domestic animals to use the same for grazing purposes. But here the railroad company is compelled to leave its depot grounds open for the accommodation of the public, for the purposes of receiving and delivering freight and for the convenience of persons traveling upon it. The grounds being left uninclosed under such circumstances, cannot be construed into a license to pasture them, and the conditions are of such a character as to impliedly forbid it. Nor do I oppose the view expressed in the said opinion regarding
The statement in the bill of exceptions in regard to that matter is as follows: “That said locomotive was at the time attached to one of defendant’s regular passenger trains, which passed through said town and depot grounds, from north to south, about one o’clock P. M. of the day, which was the regular time for said train to pass said station at Tangent; that upon approaching said station, and when about three hundred yards distant therefrom, the engineer in charge of the train signalled his approach to said station by sounding the whistle; that said horse was at the time either upon the depot grounds alongside the track -or else upon the public road at the north, boundary line of the depot grounds, and soon thereafter was seen upon the track of the railroad on the depot grounds, which track near the road was elevated some ten or twelve feet, and at the place where the horse was struck was elevated six or eight feet above the surrounding, ground; that soon after the whistle was sounded the horse was so seen upon the track between the last named two points on the depot grounds, and was walking towards
I do not think the jury was justified in finding from, the facts, under the most favorable construction to the respondent which they could reasonably give them, that the employes of the company in charge of the train were guilty of violating their duty in the particular referred to. I do not believe that the facts were sufficient to sustain an allegation that said employes, by the exercise of reasonable care and diligence, could have avoided striking the horse with the locomotive.' A finding by the jury that a train was running at the maximum or minimum rate supposed by the witnesses, or any intermediate rate per hour when the alarm was sounded, and that it was 250 feet from the horse at the time—the greatest estimated distance—and that the engineer was not endeavoring to stop it, and could have done so, after the horse went upon the track, and before it was struck by the locomotive, would not have been sufficient to establish such wrant of care, or negligence, as it would have lacked the further essential fact that the train could have been stopped within the distance indicated, and upon that character of grade,'without danger of wrecking it, and imperiling the safety of those on -board. An engineer of a railroad train is charged with a responsible duty, and he must be the judge, in the event of an emergency, as to the proper course to be pursued. He is often compelled, in cases of threatened danger from causes such as existed in this case, to accelerate instead of retarding the speed of the train, in order to save his own life, and the lives of others depending in a great measure upon his prudence and discretion. It would therefore be highly unjust to impute negligence to his conduct in the performance of his duty without proof of all the facts necessary to constitute it. It could hardly be supposed that a person entrusted in so important a station as that of engineer
It seems to me, therefore, that when the circuit court gave the instruction: “In this case, if you believe from the evidence that the plaintiff was guilty of negligence in allowing his horse to be upon the depot grounds of defendant, and that such negligence contributed to the accident, still if you believe the accident could have been avoided by the exercise of ordinary care and diligence on the part of the defendant, the defendant is liable, ” it committed error. Cases of this kind are too important to the public to be- left wholly to the decision of a jury who, in ninety-nine cases out of a hundred, will determine them from sympathy, prejudice and caprice. Courts have a responsibility to perform aside from announcing abstract propositions of law. It is the duty of a trial court and of this court to see that justice is administered, and it cannot be shirked by a pretext that the case was a proper one to be determined by the jury. In the trial of actions at law where the testimony in support of the issues is conflicting, it is the province of the jury to determine the facts; but the court should always carefully scan the testimony and ascertain upon what issues between the parties it is conflicting, and not shuffle the whole responsibility on to the jury. The instruction above set out left the jury in this
Now, vthe plaintiff having failed to charge an intentional injury to his animal, should, in order to avail himself of the rule which allows a recovery in such cases, in favor of a party guilty of contributory negligence on his part, have averred in the reply that notwithstanding the alleged carelessness and negligence charged against him in the answer, he was still entitled to recover the value of his horse, for that the agents and servants of the defendant might and could, by the exercise of reasonable efforts, have avoided running the locomotive against the animal, and that they wholly failed to make such efforts. This would have presented the real issue in the case, an issue tendered by the plaintiff, and which he would have been compelled to maintain by a preponderance of evidence; but he tendered no such issue in his reply. Upon the contrary, he merely denied the allegation of his own carelessness and negligence in the affair. The court, however, cast the burden upon the defendant of proving not only that the plaintiff was guilty of carelessness and negligence which contributed to the injury, but virtually required the defendant to show that it could not have avoided the accident by the exercise of ordinary care and diligence. The said instruction, substantially, went to that effect. It was to the effect that if the juiy found the plaintiff was guilty of negligence in the affair, “and that such negligence contributed to the accident, still the defendant was liable if the jury believed that it could have been avoided by the exercise of ordinary care and diligence on the part of the defendant. ” Under that view, a
This will be the first case on record, I imagine, where contribution between wrong-doers has been enforced by a court of justice. If there had been evidence in the case tending to show that the conduct of the agents and servants of the appellant was reckless in the transaction which resulted in the destruction of the respondent’s horse, or which indicated a total indifference and.disregard of the respondent’s rights of property, and such fact had been alleged in the complaint, or set forth in the reply, the trial court might very properly have instructed the jury that if they found that such had been the conduct of the agents and servants of the appellant, they would be authorized to find him liable, although the plaintiff were guilty of negligence which’ contributed to the accident; but in order to admit of a recovery in such a case, the conduct of the defendant must be proven to have been something more than negligent.- It must be shown to have been wilfully done, for upon no other ground can a plaintiff recover damages against a defendant for an injury resulting from
The courts of this State cannot afford to tolerate a sentiment which ignores the rights of any parties litigant, whether belonging to natural or artificial p arsons. Because the appellant is a wealthy railroad corporation, and possibly arbitrary, extortionate and exacting in its dealings with the public, it does not follow that its rights should be ignored; nor is it good policy on the part of the community to countenance or encourage such practice. We must deal honestly and fairly by railroad companies, whether they do so by us or not. Such a course will be found to be by far the best in the long run. We may succeed in compelling them to pay for a few horses and cattle belonging to thriftless owners, who would probably prefer to have them run over and killed, if they could get anywhere near their estimate of value of the animals, than to exert the slightest effort to prevent the occurrence; but the advantage will be very inconsiderable as compared to the injury which retaliatory measures, if resorted to on the part of the railroads, would occasion, and it would be very unwise to incite any such antagonism. Railroad companies should be required to do their full duty to the public, and if it