The Ogden standard. [volume] (Ogden City, Utah) 1902-1910, 1909-03-11
CRAGUN CASE
DECISION
GIVEN
DAMAGES FOR STOCK KILLED
ONLY IN PART ALLOWED.
Actions Must Be Brought Within :
Year In Certain Damages Caused
by Railroads.


court this morning In the case Of VII
lard Cragun VS.. Oregon Short Line.
The most important part OF the de-
cision is that. In cases OF damages
such as this one, in which II was al
legged that stock had been killed by
failure on the part of the railroad 10
maintain fence as required by the
statute, the action must be brought
within year Before the amendment
of the statute. plaintiff had four years
In which to commence suit.
The court, in making the decision,
said:
BY the third cause OF action set
out in plaintiffs complaint he seeks
to recover from the defendant the val
ue of a certain heifer belonging TO
him and which is claimed TO have beef
killed by one Of the railroad trains OF
the defendant on the first day of No
vember, 1906 The only negligence on
the part Of the defendant relied upon
by the plaintiff in his pleading Is the
failure of the defendant to fence It's
right-of-way at the place in question,
said right-ofway at said point running
through lands owned and improved by
private owners. The only testimony
introduced in support OF this cause OF
action was as to the value OF the heif-
er, as TO its being found dead upon the
right-of-way, and as to the failure to
fence at the point In question. AS
suming, however, for the purposes or
the case that thero was sufficient
proof of the killing of the animal in
question by one of the defendants
railroad trains, and taking into con-
sideration the undisputed evidence OF
the failure TO fence, the question arises
whether or not the action is barred by
the statute Of limitations, the same
having been commenced more than a
year after the happening OF the acct
dent, and it being claimed by the de-
fendant that the action Is barred. Our
fencing statute being chapter SO, ses-
sion laws OF Utah, 1903, provides as
follows:
" Every railroad company operating
a railroad by steam power within this
state is hereby required to erect, with
III six months after the approval or
this act, and thereafter maintain, q
fence on each side of It's railroad
"
owned and improved by private own
crs. and connect the same at all pub
lie road crossings, with cattle guards.
Such fence shall not be less than
four and half feet in height of not
less than five wires. with good, sub
stantial posts not more than one rod
apart, with a stay midway between
said posts attached TO the wires or
SAID fence 10 keep said wires In place;
and whenever such railroad company
shall provide gates for private cross"
iags, for the convenience of the own.
ers OF the land through which such
railroad passes, such gates shall be so
constructed that they may be easily
operated and any such corporation
shall be liable for all damages sustain
cd by the owner of any domestic ami
NAL killed or injured by such railroad,
Ia consequence OF the failure to build
or maintain such fence,
Section 2S77, subdivision /, of the
Revised Statutes of Utah 1898. con-
tains the following language: An
action for liability created by stat
ute. other than penalty or forfeiture
and subdivision thereof reads as
follows: An action for taking. de-
tanning, or injurlng personal proper
ty, including actions for the specific
recovery thereof
rs an action for damages caused
BY the killing of live stock under and
by virtue of the fencing statute an
action for liability created by statute
within the meaning of section 2S77.
At common law there was no duty
imposed upon the railroad company to
fence Its right-of-way and of course
ii was not liable for any live stock
killed upon its right-of-way by its rail
load trains merely because OF failure
TO fence, but at common law to re-
cover for live stock so killed the
owner thereof was under the necessity
OF proving some other negligence or
omission of duty. The liability of a
railroad for stock killed upon its right
of-way, when there is no other omis-
sion of duty shown except the failure
10 fence, Is therefore purely and sole
ly statutory liability and II would
seem to come clearly within the
statute barring actions for liability
created by statute after one year. and
not within the statute OF limitations
as TO injuries TO personal property.
which obviously refer to the old COM
Ilon law actions of tort.
1T is sought however, by plain
TINS counsel to construe the imposi-
ton by the statute OF liability Tor the
killing OF live stock because of a tail
ire 10 fence as a penalty and thus to
bring it within the exception OF the
statute. IL seems TO the court that
this contention is not well founded. Tor
the reason that the statute is wholly
compensatory and the recovery Is bas'
ed upon the violation OF a positive
duty enjoined by statute, The court
is not, however. left 10 It's own deduc-
courts have construed such statutes
almost precisely similar to ours to be
not penal in their nature.
"As to the sixth cause of action.
" Which is for the burning up of certain
hay belonging to the plaintilf, the only
defense relied upon against recovery
IS the fact that the fire started in Ger
tain hay which had been pulled OF a
wagon as the same was being hauled
through the gate OF lane near the
track, but IL does not seem to the
court that the existence of the hay at
that point was such contrlbutory neg
llgence as 10 preclude recovery and,
therefore. that the plaintiff is entitled
to recover on this cause OF action
"As to the seventh cause of action,
which is for the injuring of bull at
putlic crossing, the evidence shows