Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-26
Todd '. Pacific Ry. & Nav. Co.. Tilla.
mnnk CnnniK.

I Railway & Navigation Company, ap-
pellant. Appeal from the circuit
court for Tillamook county. The
; Hon VIM. Galloway, judge. Argued
and submitted July ;, 1911 Talmage
e. Johnson, for respondent. .Zera
Snow Snow G. McCamant, on brief
for appellant Eakin, c. ]. Reversed
and remanded,
This is an action to recover dam
ages for an injury to plaintiffs
horse. At the time Of the alleged
| injury defendant was constructing a
railroad in Tillamook county, a part
of which was a trestle. Plaintiffs
horse was of the alleged value of
$125. He permitted it to run at
| large in the vicinity Of the railroad
construction, and it went upon the
trestle, fell between the timbers, and
was thereby injured, from the effects
Of which It died 1t is alleged that
defendant negligently and carelessly
left the trestle open, exposed and
unfenced, by reason whereof the
horse entered thereon. The court
overruled demurrer to the COM
plant and, defendant refusing to
plead further judgment was entered
for plaintiff. Defendant appeals.
Eakin, c. J. II Is conceded by
plaintiff that defendants liability
must depend upon whether the in
jury was the result Of defendants
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 1t was negligence to leave
unguarded the trestle which is part
Of defendants railroad and might be
/ dangerous to stock.
First, 1t may be stated, that a nec-
essary element of actionahle negli-
/ gence is the existence of a duty on
the part of defendant to protect the
I plaintiff form the injury complained
Of; Faris V. Hoberg, 1874 Ind. 269.
Negligence is the breach or omission
Of legal duty; Donovan V. Ferris,
/ l28 Calf. As; Magyar V. Hammond, 67
N Y, Supp. So; Nolan v. n. Y. etc,
/ R. Co., SO Conn. 461 1t includes two
subordinate ideas-duty and the per-
formance Of that duty: Words &
Phrases, 4743-4745; O'Neil V. Town
of East Windsor, 63 Conn. $50; Ell
ster v. Springfield, 40 Oh. st. 50; 0.
& r. " R. r, Co, V. Martin, IA Neb.
295; Lawrence V. Crown Point Iron
Co., 1O1 N, Y 391; St Louis etc. Co.
v, Keokuk, etc, Co., 81 Fed. 755: Lake
Shore, etc. Ry. Co. V. Kurtz, 10 Ind.
1 App. 60.
In Denver & Rio Grande r. Co. v.
Chandler Colo 371, it is held that
to constitute a liability, founded upon
the fault of the company, there must
exist duty on the part of the COM
pany, the failure to perform which
occasioned the loss of the horse,
namely, to make it impossible for the
morse to enter upon the bridge.
Hence defendants liability depends
upon the existnce of a duty to plain
TIN 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, IL
unfulhlled, will create a liability?
Although 1t is not negligence for the
owner OF stock to permit it to run at
large, neither is it negligence. indie
/ pendent of the statute, for the rail
road company to leave its track nm
ienced Prior to the enactment Of
/ the railroad fence law, which relates
only to the operation of the road.
the company was only liable for
uamage to stock by reason of negli-
sehce' and failure to fence was not
negligence: Moses V. Southern Pac
y X. Co. is Or 3S5. 1898. And that rule
was as applicable to trestles as 70
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 neg
ligence or the violation OF any law
and, even IL they enter upon the nm
nclosed land Of another, he is not
liable for damages to crops or grass
But such an entry would be a tres
pass, although by reason of the gen
eral fence law the owner of the land
has no remedy therefor In Moses V
Southern Pnc. r, Co.. in speaking of
contributory negligence by the own
er of stock injured on a railroad
right of way Mr. Justice Lord saws.
Although they (the stock NAV he
regarded as trespassers, he (the
owner) is not guilty of contributory
negligence = 1t is considered
as the act of the plaintiff in suffering
MS stock to run at large is not un
lawful nor negligent, nor likewise
the act of the defendant in leaving
It's track uninclosed yet when II is
So as the stock may stray upon II
as other uninclosed places. the de-
tendant takes the risk of such intru-
sion upon its track and the owner
the risk Of injury to his stock by un-
atoidable accident.
In Bileu v Paisley. is Or. A.. 10
II is said TO hold that one man
has a right to permit his stock 10 90
upon the lands OF another. II not nm
tected by a material inclosure. would
oe holding, In effect, that a man did
not own what belonged to him. The
legislature cannot legalize such a
FeSpass, II cannot provide that the
cattle Of 4 may lawfully 20 upon the
land OF b against the latters con
sent whether his land is fenced or
unienced; though it may, as before
( suggested, withhold from h a remedy
/ tor damages ocCasioned by such a
/ trespass, II his land is not inclosed
IN prescribed manner. Legislation
OF the character referred 10 goes
only to the remedy, and no attempt
10 extend II further can be justified
And In Williams '. Railroad Com
pany' Mich, 249, speaking of the
right OF stock to run at large II is
Salo' This act (the general fence
/ laWl does not REQUIRE men 10 fenc,