87 P. 528 | Or. | 1906
Mr. Chief Justice Bean
delivered the opinion.
This is an action to recover the value of four horses killed by the moving trains of the defendant on an unfenced portion of its track, but which the plaintiffs claim and allege should have been fenced.
The complaint states a cause of action for common-law negligence, and also under the statute making a railway company
In Grosse v. Chicago & N. W. R. Co. 91 Wis. 482 (65 N. W. 185), the unfenced portion of the right of way was half a mile in length and extended north beyond a switch which was 1,400 feet from the depot building. At a highway crossing a short distance south of the switch it was' customary to load and unload freight. Between such crossing and the switch, plaintiff’s colts came upon the right of way and were killed, and it was held that it was a question for the jury whether the place of entry was a part of the depot grounds. In Rhines v. Chicago & N. W. R. Co. 75 Iowa, 597 (39 N. W. 912), it was held that whether that part of the company’s ground which was not the ordinary place of receiving or delivering freight but where freight of a single shipper was handled, should be left unfeneed, was a question of fact for the jury. And, in Dinwoodie v. Chicago, M. & St. P. Ry. Co. 70 Wis. 160 (35 N. W. 296), it was likewise held to be a question of fact whether the defendant’s right of way at a point 60 rods from the station building where there was a side track in addition to the main track was necessary and convenient and actually used for loading and unloading freight so as to make it a part of the depot grounds, thus relieving the company from the duty of fencing it. And in Bean v. St. Louis, I. M. & S. Ry. Co. 20 Mo. App. 641, it was ruled that where a cow was killed adjacent to a railroad station and at a place used by the railroad for switching purposes in connection with its station grounds, the court could not declare as a matter of law that the Gompany was not bound to fence its track at that point. See, also, Indiana Ry. Co. v. Hale, 93 Ind. 79; Chicago & E. I. Ry. Co. v. Modesitt, 124 Ind. 212 (24 N. E. 986); McDonough v. Milwaukee & N. Ry. Co. 73 Wis. 223 (40 N. W. 806).
Now, there was no evidence in this ease that the place where the plaintiffs’ horses entered upon defendant’s track was. within the limits of the station grounds as set aside and designated by the defendant, or within such grounds as hereinbefore defined, and therefore the court could not declare as a matter of law that defendant was not required to fence its track at such point. The north track constructed by the defendant in 1902, so far as the evidence shows, was intended to be used for the passing of trains, and was in no way connected with or necessary to the use of the depot grounds; nor indeed, that it was on such, grounds. We think, therefore, that the question whether the point where the horses entered was within the depot grounds was a question for the jury, and should have been submitted to them.
Judgment reversed and new trial ordered. Reversed.