Holstine v. Oregon & California Railroad

By the Court, Kelly, C. J.: This is an action brought by the respondent to recover damages for the killing of some horses and injury to others by a freight train on appellant’s railroad, alleged to have been caused by the negligence of the appellant. In the answer, negligence on part of the appellant is denied, and negligence upon the part of the respondent, which contributed to. the injury, is averred. The facts are substantially as follows: In October, 1878, the respondent was the owner of a band of eleven horses, which he was driving along the county road leading from Oregon city to Salem. "When about half a mile above Oauemah, where the county road runs parallel with and near to the railroad track, but separated by a board fence, he met a freight train going north. The respondent was riding a horse and driving the eleven head. The horses which he was driving became frightened and ran back along the county road until they reached the place where it crosses the railroad below Canemah, a distance of more than a mile. At this crossing a part of the horses ran on the railroad track before the train, and three of them were killed, and one injured so that it afterward died, and the others were injured to some extent. The horses had recently been brought from Eastern Oregon and wex’e unaccustomed to the sight of a railroad, and at the time they took fright the eleven head were driven loose by the respondent, who had no one to assist him. "When they became frightened they were about one hxxudred yax’ds ahead of respondent, and he was watching two boats on the Willamette river. During the trial the respondent was a witness in his own behalf, and after describing the horses which were killed and injured he was questioned by his counsel about the value of the horses, as follows: “What was the value of the two bay horses?” to which he answered: “ I paid three hundred and fifty dollars for them.” “What was the value [168] of the dun horse ?” to which he answered: “I paid one hundred and fifty dollars for him.” The respondent also afterwards testified in effect that such horses were respectively worth the sums which he stated he -paid for them. Although the above answers were objectionable, because not responsive to the questions asked, yet no exception was taken. On cross-examination the respondent stated that he had bought the horses in Baker county, Oregon, from one Toney, about September, 1878, and did not pay for them in money, but paid for them in sheep at the rate of two dollars for each sheep, receiving the horses at the prices above specified. Appellant’s counsel then asked the witness the following questions, which were severally objected to by respondent as immaterial, and the objections were sustained by the court, to which rulings appellant excepted: “Where did you get the sheep you traded for the horses you bought of Ben Toney ? How much did you pay for the sheep you traded to Ben Toney for the horses, and in what manner and when did you pay it ? Wrhere were the sheep at the time you traded them to Toney, and how long had you owned them ? When had the sheep you traded to Toney for the horses been sheared? Where had the sheep you traded to Toney for the horses been kept the summer you traded, and how had they been kept?” The court properly sustained the objections to these several questions. The inquiry was as to the value of the horses, about which the witness had testified. On the cross-examination he stated that he had traded sheep in payment for them at a stipulated price, and by the questions asked it was sought to elicit facts too remotely connected with the subject of inquiry before the court. After the evidence was closed the court charged the jury, among other things, as follows: “If both parties were negligent, and the negligence of both contributed to the injury, there can be no recovery. The law can not apportion the responsibility among those who are jointly responsible. If, therefore, as I have stated, the plaintiff by his own negligence contributed to his injury, he can not recover. If, [169] however, the negligence of the plaintiff, if he was negligent, did not contribute to the injury; if the company was guilty of gross negligence and the plaintiff was guilty only of slight negligence, or if the agents of the company were willfully or intentionally negligent, then the plaintiff is entitled to recover notwithstanding his own negligence.” The appellant excepted to the following portion of the charge just quoted: “If the company was guilty of gross negligence, or if the agents of the company were willfully or intentionally negligent, then the plaintiff is entitled to recover notwithstanding his own negligence.” This being excepted to, it was assigned as error. This must be taken in connection with the context, and so taken it was not erroneous. This court, in the case of Bequet v. The People’s Transportation Co. (2 Or. 200), laid down the rule that slight negligence on the part of the plaintiff would not excuse gross negligence on part of the defendent, whereby the plaintiff’s property was destroyed. The ruling of the court below, in the case under consideration, was in accordance with the principle declared in that decision. On behalf of the appellant the court was asked to instruct the jury as follows: “If the jury find from the evidence that the plaintiff was driving a band of eleven horses loose upon the highway, in known proximity to the railroad of the defendant, knowing that his horses were not accustomed to the sound or sight of a railroad train, at about the time for the passing of a regular train, and permitted the horses to get the distance of a hundred yards in advance of him, and was watching some steamboats upon the river, and, while so occupied, a train approached and said horses took fright, which caused them to run into the train, by which a portion of the band was killed and others injured, he is guilty of such contributory negligence as prohibits his recovery, unless the defendant was guilty of willful misconduct.” This instruction was asked on the hypothesis that the respondent was bound to know when the regular freight trains of the appellant would pass along close to the place where the horses took fright, and that he had no right to travel on the [170] public highway with horses unaccustomed to the sight or the sound of a railroad train. The respondent was under no obligation to ascertain the exact time when the freight trains would pass along the railroad and to abstain from driving his horses on the highway when these trains should go by. He had a right to be on the public road, and if he exercised ordinary prudence and care in driving his horses he would not be liable to the charge of being negligent in the management of his property. The court did not err in refusing to give the instruction which was asked, and the judgment is affirmed.