Magee v. North Pacific Coast Railroad

FOOTE, C. This action was brought to recover damages from the defendant for the alleged injuries suffered by the plaintiff in being thrown from a train of cars operated upon the defendant’s railroad track. The plaintiff recovered a judgment for $2,500; from which, and an order refusing a new trial, the defendant appeals.

The complaint alleged that it was the duty of the defendant toward the plaintiff, one of its employees, viz., a brakeman [44]and assistant baggage-master, to keep the right of way and track of its railroad “fenced with good and sufficient fence on both sides thereof, so as to prevent cattle and animals from getting on said track,” and “to provide a good, safe and secure locomotive and tender, with a pilot cowcatcher in front thereof, and to run and operate its trains in such manner as to always have the locomotive in front of its train, and a pilot or cowcatcher in front of said locomotive engine, and in a position to remove obstructions from said track. ’ ’ It was then alleged that these general duties were unperformed, and that of their nonfulfillment the defendant had notice.

The charge was also made against the defendant that by reason of its negligence its railroad track and right of way were not at the time of the plaintiff’s injury fenced with good and sufficient fences, by reason of which neglect a bull or ox got upon said track; and by reason of that, and the negligence of the defendant in running its locomotive engine with the tender in front, and without a cowcatcher, etc., the locomotive engine ran against the bull or ox, which collision resulted in the plaintiff (while using due care and attention in the line of his duty) being thrown off the car where he was properly stationed, and seriously and painfully injured.

There seems to be no doubt but what the facts show that the plaintiff suffered the injuries complained of through a collision of the train with the ox or bull, which had gotten upon the track through the negligence of the defendant in not keeping up proper fences. It is equally clear that the plaintiff was fully aware of the fact that the defendant’s locomotive engine was run with the tender in front, and had been so run for a long time, and it is apparently conceded on both sides that under the evidence no cause of action existed in favor of the plaintiff on that ground. But it is insisted by the plaintiff, and denied by the defendant, that the negligence which caused the accident in which the plaintiff had his leg-broken was by reason of the fact that the fences along the track were insufficient to turn cattle and stock, and that on account of the bad condition of the fences, well known to the defendant and unknown to the plaintiff, the bull or ox got on the track, caused a car or cars to be precipitated therefrom, the plaintiff violently thrown off and permanently injured.