110 P. 391 | Or. | 1910
Lead Opinion
Decided August 3, 1910.
On Motion to Dismiss.
[110 Pac. 391.]
Opinion
The respondent’s counsel move to dismiss this appeal because of an alleged non-compliance with the rules of this Court. Rule 9 thereof (50 Or. 574: 91 Pac. ix)
The motion should be denied; and it is so ordered.
Motion to Dismiss Denied.
Opinion on the Merits
Decided July 18, 1911.
On the Merits.
[117 Pac. 300.]
Opinion by
It is conceded by plaintiff that defendant’s liability must depend upon whether the injury was the result of defendant’s negligence, and that the statutory duty to fence the railroad track does not apply in this case, but that the liability of defendant depends upon whether it was negligence to leave unguarded the trestle, which is part of defendant’s railroad, and might be dangerous to stock.
In Denver & Rio Grande R. Co. v. Chandler, 8 Colo. 371 (8 Pac. 571), it is held that to constitute a liability, founded upon the fault of the company, there must exist a duty on the part of the company, the failure to perform which occasioned the loss of the horse, namely, to make it impossible for the horse to enter upon the bridge. Hence defendant’s liability depends upon the existence of a duty to plaintiff and a failure to perform that duty.
Second. Does the complaint state facts sufficient to show such a duty on the part of defendant, which, if unfulfilled, will create a liability? Although it is not negligence for the owner of stock to permit it to run at large, neither is it negligence, independent of the statute, for the railroad company to leave its track unfenced. Prior to the enactment of the railroad fence law, which relates only to the operation of the road, the company was only liable for damage to stock by reason of negligence, and failure to fence was not negligence. Moses v. Southern Pac. R. Co., 18 Or. 385, 393 (23 Pac. 498: 8 L. R. A. 135). And that rule was as applicable to trestles as to moving trains. We understand that» the result of the cases in this Court upon this subject is that the owner may permit cattle and horses to run at large, without being guilty of negligence or the violation of any law, and, even if they enter upon the uninclosed land of another, he is not liable for damages to crops or grass.
In Moses v. Southern Pac. R. Co., in speaking of contributory negligence by the owner of stock injured on a railroad right of way, Mr. Justice Lord says: “Although they [the stock] may be regarded as trespassers, he [the owner] is not guilty of contributory negligence. * * It is considered, as the act of the plaintiff in suffering his stock to run at large is not unlawful nor negligent, nor likewise the act of the defendant in leaving its track uninclosed, yet when it is so, as the stock may stray upon it as other uninelosed places, the defendant takes the risk of such intrusion upon its track, and the owner the risk of injury to his stock by unavoidable accident.”
In Bileu v. Paisley, 18 Or. 47, 52 (21 Pac. 934, 936: 4 L. R. A. 480), it is said: “To hold that one man has a right to permit his stock to go upon the lands of another, if not protected by a material inclosure, would be holding, in effect, that a man did not own what belonged to him. The legislature cannot legalize such a trespass. It cannot provide that the cattle of A may lawfully go upon the land of B against the latter’s consent, whether his land is fenced or unfenced, though it may, as before suggested, withhold from B a remedy for damages occasioned by such a trespass, if his land is not inclosed in a prescribed manner. Legislation of the character referred to goes only to the remedy, and no attempt to extend it further can be justified.”
And in Williams v. Railroad Company, 2 Mich. 259 (55 Am. Dec. 59), speaking of the right of stock to run at large, it is said: “This act [the general fence law] does not require men to fence their lands, but merely precludes a recovery for damages done by beasts thereon, unless they are fenced. Nor does it grant any right to one individual to trespass on the private property of
This principle is reaffirmed by the Supreme Court of North Dakota, in the recent case of Corbett v. Great North. Ry. Co., 125 N. W. 1054. In Hughes v. Hannibal & St. Joe R. Co., 66 Mo. 325, it is held that “the proprietor of uninclosed land is under no obligation to make it safe for pasturage, and if the cattle of another stray upon it, and are killed by drowning in an unguarded well, there is no liability resting upon him for the loss. A railroad company stands upon the same footing as any other proprietor.” See, also, 33 Cyc. 1213.
The judgment of the lower court will be reversed, and the cause remanded. Reversed.