Dickey v. Northern Pacific Railway Co.

Citations

• 19 Wash. 350
• 53 P. 347
• 1898 Wash. LEXIS 380

Syllabus

<p>INJURIES TO STOCK — ABSENCE OF FENCES — PLEADING AND PROOF — ' CONTRIBUTORY NEGLIGENCE.</p> <p>In an action against a railway company for killing stock, in which the only allegation of negligence set out in the complaint was the negligent operation of defendant’s train upon its right of way, plaintiff cannot introduce proof that the right of way was not fenced, in order to establish negligence, under the rule that the evidence must correspond with the pleadings and be restricted to the issues.</p> <p>Under Laws 1893, p. 418, § 1 (Bal. Code, § 4332), providing that, in actions against railways for injuries to stock by collision with moving trains, the absence of fences is prima facie evidence of negligence, the fact that the track was unfenced would raise a mere presumption of negligence, which would be rebutted by proof that the train was running at a lawful rate of speed, equipped with the customary appliances, and that the stock when seen were so close that the train could not be stopped in time to avoid striking them.</p> <p>One who turns a band of horses loose in a small field, fenced cn all sides except the one adjoining a railway track, and takes no steps to prevent their getting in the way of passing trains, is guilty of such contributory negligence as to bar his recovery for injuries to his stock from a collision with a moving train.</p>