High v. Southern Pacific Co.

Mr. Chief Justice Bean delivered the opinion. 1. It is unnecessary to notice the evidence at length. It is sufficient that it tended to show that the animals escaped through the gate at the farm crossing, which it is claimed was carelessly and negligently left open by the employees of the defendant. The court below, following the line of authorities which holds that in actions of this character the extent of depot grounds is a question of law for the court, and not of fact for the jury, ruled that the gate referred to was within the depot grounds, and as a consequence defendant was not required under the statute to maintain a fence at such point. Since the trial in the court below we have had occasion to examine the question [101] thus presented, and the rule announced is that, where the evidence as to whether a given point constitutes a part of the depot grounds of a railway company is conflicting, or different inferences may be drawn from it, the question is for the jury, and not the court: Wilmot v. Oregon Railroad Co. 48 Or. 494 (7 L. R. A. [N. S.], 202: 87 Pac. 528). Now, we think it cannot be said in this case that the evidence was so clear and undisputed that the court could declare as a matter of law that the place where the animals entered upon the track was within the depot grounds of the defendant. The gate through which it is alleged they escaped was about 1,700 feet north of the place where it received and discharged passengers and freight, and was north of a cattle guard put in by the defendant, probably as the northmost limit of its depot grounds, and there ivas evidence tending to show that it was not necessary for the convenience of either the company or the public that the right of way should be unfenced at that point. There was no evidence that the company contemplated using the east side of its track north of the county road crossing for the transaction of business with the public, or, indeed, that the track could be approached from that side except along the right of way. The link put in by it subsequent to the accident, and which is designed to be used in the shipment of freight, is 400 or 500 feet south of the farm crossing, and the evidence is at least conflicting as to whether it was either necessary or convenient for the public or the company that the track should remain unfenced at the point where the gate is located. And, moreover, the defendant built and was maintaining the fence and gate as a part of the inelosure in which plaintiffs animals were being pastured, and this was evidence tending to show that the defendant did not consider such place a part of its depot grounds. 2. The defendant claims that, if it was required to maintain a fence on the east side of its track at the place where the gate is located, it had actually done so, and therefore discharged any duty devolving upon it in that regard, and that the action is [102] based upon the statutory liability for a failure to maintain a fence, and therefore plaintiff cannot recover, even if it was negligent in allowing the gate to remain open. An allegation of a failure to fence is not supported by proof that a gate in a fence actually constructed was negligently left open: Stonebraker v. Chicago & Alton R. Co. 110 Mo. App. 497 (85 S. W. 631) ; Megrue v. Lennox, 59 Ohio St. 479 (52 N. E. 1022). 3. But, as we understand the complaint, the gravamen of the action is negligence in leaving the gate open and thus allowing the animals to escape from the inclosure and wander onto the track. The averment that it was the duty of the defendant to fence its track át the point where the animals escaped was matter of inducement and preliminary to the charge of negligence referred to. If there were, in fact, two causes of action stated in the complaint, the defendant should have moved for an order requiring them to be separately stated, if they could be properly joined, and, if not. to require plaintiff to elect upon which he would rely. The remedy was not by motion to strike out. The complaint, we think, clearly contains a cause of. action for negligence in leaving the gate open, and, if it was at a point where defendant was required to fence and its being open was due to the negligence of the defendant, it is liable: 3 Wood, Railroads. (Minor’s Ed.), §419; 3 Elliott, Railroads, § 1200; Mooers v. Northern Pac. Ry. Co. 80 Minn. 24 (82 N. W. 1085); Chapman v. New York Cent. R. Co. 33 N. Y. 369 (88 Am. Dec. 392); Spinner v. New York Cent. R. Co. 67 N. Y. 153. Judgment reversed, and new trial ordered. Reversed.