Atchison, T. & S. F. R. v. Betts, 10 Colo. 431

Atchison, T. & S. F. R. v. Betts

10 Colo. 431 | Colo. | 1887

Stallcup, C.

Were the facts shown sufficient to warrant the judgment for the value of the mule? In this state we have a statute fixing an unqualified liability against a railroad company for stock killed by it in the operation of its railroad business, which is as follows: “ That every railroad or railway corporation or company, operating any line of railroad or railway, or any branch thereof, within the limits of this state, which shall damage or kill any horse, mare, gelding, filly, jack, jenny or mule, or any cow, heifer, bull, ox, steer or calf, or any *436other domestic animal, by running any engine or engines, car or cars, over or against any such animal, shall be liable to the owner of such animal for the damages sustained by such owner by reason thereof.” It is urged upon the part of the appellee here that our courts will presume that the laws of New Mexico on this subject are the same as our own. To go that far upon presumption would be against reason and the current of authority. Neither can it be said that this statute makes the liability rest upon the negligence of the railroad company, nor upon the assumption that all killing of stock by railroad companies in the operation of their engines and cars upon their tracks is negligence, and that such negligence is shown by proof of the killing; for there is no such expression in the statute, and such assumption or conclusion therefrom would be against reason, principle and the adjudications of the courts on the subject of negligence in such cases. The'case of Walsh v. Railroad Co. 8 Nev. 111, was a case for the killing of a cow which had strayed on defendant’s railroad track in the western part of the town of Gold Hill, in Storey county, Nevada. In the decision of the case the court say: “But it is not the law that the mere killing of a domestic animal by a railroad train is evidence of negligence. This question has frequently been before the courts, and invariably ruled against the plaintiff, except where the general rule of law is abrogated by positive statute. The fact of killing an animal of value by the company’s engines, says Redfield, is not prima facie evidence of negligence. 1 Redf. R. R. 465. And it is so ruled in the following cases: Scott v. Railroad Co. 4 Jones (N. C.), 432; Railroad Co. v. Means, 14 Ind. 30; Railroad Co. v. Reedy, 17 Ill. 580; Railroad Co. v. Patchin, 16 Ill. 198.”

It will be seen by the language used in our statute creating this liability that it is independent of any question or element of negligence; neither can such imposition of the liability be regarded as a penalty, for there is nothing *437prohibited or commanded by the statute nor any wrong defined or declared thereby. The statute is novel and does not rest upon any general or commonly accepted principles of law. We see in such a statute that the declared policy of the state is to foster the stock-growing industry, and that the railroad companies, to this extent, shall bear the whole burden of loss occasioned by the conflict or accidental collisions which may occur in carrying on the business of the railroads and the business of stock-growing within the state. Such statute will be confined in its operation to the limits of our own state, and its adoption elsewhere will not be presumed in the absence of proof of the fact. Besides, if there is such a law in New Mexico, it would be a law of the legislature of New Mexico, and courts do not take judicial notice of the statutes of other states — they must be shown like other facts. Polk v. Butterfield, 9 Colo. 325; also sec. 387, Code Civil Proc., which provides how the proof may be made. So it follows that we cannot presume the existence of such law in New Mexico, and, in the absence of the proof of the laws of New Mexico, no matter what their provisions may be, they are unavailing to sustain the judgment. Neither can our statute referred to sustain the judgment, for the reason that the wrong or acts constituting the cause of action occurred beyond the limits of this state, so the statute can have no application to this cause of action.

In the consideration of a statute in the case of Whitford v. Railroad Co. 23 N. Y. 465, we have the following from the decision of the court in the opinion delivered by Denio, J.: “I have thus far assumed, without a formal statement of the principle, that the statute referred to has no force beyond the limits of the state of New York. This is an elementary doctrine and the contrary was not insisted upon as a general rule in the argument. The laws of New York have no greater operation in respect *438to transactions which take place wholly within the territory of New Granada than the laws of that republic have in regard to New York transactions. It is no doubt within the competency of the legislature to declare that any wrong which may be inflicted upon a citizen of New York abroad may be redressed here according to the principles of our law, if the wrong-doer can be found here, so as to be subjected to the jurisdiction of our courts; but as we could uot, by any legislation of this kind, put an end to the liability of the party to the lex loci, or divest the foreign government of. its jurisdiction over the case, such a statute would rarely be just in its operation and would be more likely to lead to confusion and oppression than to any beneficial results. * * * < This limitation upon the operation of the laws of a country is quite consistent with the practice which universally prevails, by which the courts of one country entertain suits in relation to causes of action which arise in another country, when the parties come here, so as to be made subject to their jurisdiction.” To the same effect are Bank v. Earle, .13 Pet. 519; Needham v. Railway Co. 38 Vt. 307, 308.

It is claimed on the part of the appellee that the judgment is sustained by the principles of the common law, and the charge to the jury given at his request as to gross negligence; while it is urged in behalf of appellant that our courts should presume the existence of the common law in New Mexico, and that, by the principles thereof, the facts in this case show no right of recovery against appellant. It is evident that, under the principles of the common law, the facts shown would not warrant the recovery. Under the common law, an owner turning his domestic animals at large was thereby guilty of such negligence as would defeat his right to recover for injury to them, while so at large, except in cases of gross negligence. The evidence in this case shows no such negligence. In no view of the case does the *439evidence show a liability. Railway Co. v. Henderson, ante, p. 1.

The judgment should be reversed and the case remanded for further proceedings.

Macon, C. I concur in the conclusion reached.

Rising, O. I concur.

By the Court.

For the reasons assigned in the foregoing opinion the judgment of the county court is reversed and the cause remanded.

Reversed.