Patrie v. Oregon Short Line Railroad , 6 Idaho 448 ( 1899 )

SULLIVAN, J.

— This is an action to recover the value of five horses alleged to have been carelessly and negligently killed by the defendant railroad company. In addition to the allegation of the careless and negligent killing of %aid stock, the complaint alleges that the defendant had neglected and refused to make and maintain a fence along its right of way at the points where said horses were killed, as by law required, and that said horses casually, and without the fault of plaintiff, strayed upon the grounds and track of defendant, and were killed by the engine and cars of the defendant. The cause was tried by the court, with a jury, and a general verdict rendered in favor of the plaintiff for the value of said horses, to wit, $365. The jury was required to answer certain particular questions of fact submitted to them by the court, and under one of said questions the jury found that the engineers and persons in control of the trains by which said animals were killed were using reasonable and ordinary care in running said trains. This, it is conceded, disposed of the issue of the killing of said horses by the careless and negligent running of said trains. A motion for a new trial was made, and, before it was heard, the plaintiff, who is respondent here, made an offer in writing to remit from the judgment the value of the horse and mare killed near defendant’s milepost No. 204], thus reducing the judgment for damages to $320. The motion for a new trial was denied, and the appeal is from the order overruling the motion for a new trial, and from the judgment.

It appears that said horses were killed on three several days, and between mile posts Nos. 203 and 204-], on what is known as the “Utah and Northern Railway,” north of Market Lake station, which station is situated on section 32, as per government survey. It also appears that the track of the defendant extends nearly due north from said station, and runs through sections 29, 20, and It, as per government survey, and about two hundred yards east of a line passing north and south through the center of said sections. Said mile-post No. 203 is situated on the easterly side of said track, and near the north line or boundary of said section 29. Said mile-post No. 204J stands near the northern boundary of said section 17, and at the east side of said track. The land on the east side of said track, and north from said Market Lake station, is open, uninclosed land, on which horses and other stock are free to range. The greater portions of said sections 29, 20, and 17 are owned by private parties, and those parts of said sections situated on the west side of said railroad track are inclosed with a fence. The defendant corporation has fenced 'its line of road and track on the west side from the south boundary of said section 29 to near the north boundary of said section 17, but has not fenced its track on the east side, where the same runs through said sections 29, 20, aud 17. A Mrs. Neeb owns'the south half of said section 17, and has that lying on the west side of said track fenced; Patrie, the plaintiff, owns the north half of said section 20, and has the part thereof lying on the west side of said track fenced; and other persons own the south half of said section 20, and have the part thereof lying on the west side of said track fenced. The horse killed on September 8, 1897, was killed near the south side of the north half of said section 20, and a little south of mile-post No. 203-J; and the stallion killed November 3, 1897, was killed on the north half of said section 20, a little north of said mile-post No. 203-|-.

The controlling contention is whether, under the facts, the defendant is liable in damages because of its failure to fence its track at the points where said horses were killed. The provisions of the “Statute controlling this matter are found in section 2679 of the Revised Statutes, and are as follows: ‘'Railroad corporations must make and maintain a good and' sufficient fence on either or both sides of their track or property, wherever the line of their road at any time passes through or along, or abuts upon or is contiguous to private property or inclosed land in the actual possession of another.” Counsel for appellant contend that the legislative intent in the enactment of said section 2679 was to require railroad corporations only to fence their roads whenever, on either side, the same are contiguous to private property which is inclosed, or to iand which is not actually owned by the one who is using it, or is in the actual possession thereof, and has it inclosed. It appears from the record that the defendant’s track and right of way run through said sections 29, 20, and 17, which sections are owned by private persons; that the greater portions of said sections lying on the west side of said track are fenced, and in the possession of the owners. It also appears that the parts of said sections lying east of said track are not fenced, and stock range thereon without let or hindrance. It appears that the horses, for the value of which plaintiff obtained judgment, excluding the mare and horse which were eliminated from this case as above stated, were ranging, if not on the owner’s land east of the track, on the uninclosed land of other private parties; that said stock casually strayed on said right of way by reason of said track not being fenced, and was killed. If the provisions of said section require the defendant corporation to fence its track wherever and whenever it runs through land owned by private persons, the judgment must be sustained. The intent of the legislature in enacting said section must be arrived at from a literal construction, if such construction would not result in an absurdity or inconsistency. The statute declares that a railroad corporation must make and maintain a good and sufficient fence, on either or both sides of their track or property, wherever the line of road passes through or along, or abuts upon or is contiguous to, private property or inclosed land in the actual possession of another. The record shows that said track passes through private property, and we think the statute, as applied to the facts of this case, is too clear to require any construction. To hold that it does not require the defendant corporation to fence its track except when and where a private person may fence 'his land, would be injecting language into said section that is not found there, and could not be put there by fair implication and reasonable construction. We think the record fairly shows that if the said track had been fenced where it passes through said sections 29, 20, and 17, said horses would not have been killed. It may be said that building a fence on the east side of said track where it passes through said private property would be no protection to stock; that stock could pass around the ends of such fence and get upon the track. The fencing of a railroad track, when required by statute, where it passes through private property, as in this ease, implies the construction of sufficient cattle-guards at the ends of such fences. (3 Elliott on Eail-roads, sec. 1198, and notes.) We think the record shows that said horses would not have been killed, where and when they were killed, if the defendant had maintained such a fence as the law requires.

It is contended by counsel for appellant that there is no proof that said horses came upon the track at a point where the company was required to fence. It is admitted that they were killed on the track at points where it was the duty to fence, and the presumption is, in the absence of proof, that the animals came upon the track at such point. (3 Elliott on Eailroads, see. 1214.)

It is contended that the stallion that was killed was running at large in violation of law, and for. that reason the plaintiff is not entitled to recover his value. The jury found that said stallion was not running at large at the time he was killed, but had escaped from an inclosed pasture in which he had been kept. We think the finding of the jury is conclusive of the question of the stallion running at large.

The judgment of the court below must be sustained, with instructions to modify the judgment, if it has not already been done, by reducing said judgment to the sum of $320, for damages in accordance with plaintiff’s written offer above referred to. Costs of this appeal are awarded to respondent.

Huston, C. J., and Quarles, J., concur.