31 Mont. 238 | Mont. | 1904
prepared tbe following opinion for tbe court:
Tbis is an appeal from a judgment rendered against tbe railroad company for tbe alleged killing of certain stock. Tbe only
1. The code commission in their final report of 1892 say of the Civil Code reported therein: “This Code is almost entirely taken from the Civil Code prepared by the Honorable David Dudley Field for the legislature of the state of New York and the Civil Code adopted by the state of California.” (Sec. xxvii, Final Report of Comm.) No such section appears in the New York Code, so we conclude that Section 950 referred to in the complaint was adopted from California. It was reported by the code commission, and first appears in our Civil Code of 1895. The section of the present California Civil Code (Sec
It was undoubtedly the intention of the legislature to adopt this section of the California statute verbatim. It did so with the exception of three words, which were undoubtedly omitted by mistake, and the use of the word “and” for “are” in another part of the section. Section 950, at the point where this omission occurs, reads as follows: “In case they do not make and maintain such fence, if their engine or cars shall kill or maim any cattle or other domestic animals upon their line of road which passes through or along the property thereof.” This £>art of the section is incomplete, and almost unintelligible. To what antecedent does the word “thereof” refer ? Tt is apparent that something was omitted. An examination of the statute of California above referred to fully explains this omission. The same portion of the statute of that state reads as follows: “In case they do not make and maintain such fence, if their engine or cars shall kill or maim any cattle or other domestic animals upon their line of road which passes through or along the property of the owners thereof.” AVIth this insertion the statute becomes plain and intelligible. But upon reading the remainder of Section 950 it is apparent that the legislature had under consideration and intended to enact a law requiring a railroad company, whenever it located its line of road along or through the property of an owner of land, to require it to fence the side of its line next to such property if it was laid along the same, or both sides of the track if it was laid through such property, or to pay to the owner of such land the market value for all his stock killed by the railroad company on the line of road passing through or along such property, “unless it occurred through the neglect or fault of the owner of the animal so killed or maimed,” and unless the latter part of the section had been complied with. AATe shall therefore construe the first part of Section 950 according to its evident intended meaning, and hold that it applies only to stock belonging to the owner or one in possession of land along or through which the railroad passes, which has been
2. The complaint shows that the stock was killed at .Beau-din’s Spur. The answer avers that Beaudin’s Spur is a public station or depot, and used as such. No replication was filed to this answer, and therefore these allegations must be taken as true. This being the case, no duty devolved upon the railroad company to fence tin* railroad at that point. (Baker v. So. Cal. Ry. Co., supra; Moses v. S. P. R. R., 18 Oregon, 385, 23 Pac. 498; Lloyd v. Pac. R. R. 49 Mo. 199; Morris v. St. L., K. C. & N. R. R., 58 Mo. 78; Swearingen v. M., K. & T. R. R., 64 Mo. 73; Kyser v. K. C., St. J. & C. B. R. R. Co., 56 Iowa, 207, 9 N. W. 133, and cases cited.) No allegation of defendant’s negligence in the operation of its trains is necessary to retider it liable, under Section 950. AYo need not consider whether the complaint contains general allegations of negligence sufficient to constitute a cause of action, because the proof was barren of all negligence on the part of defendant. •
3. The evidence introduced at the trial and incorporated in the record by way of bill of exceptions does not support the verdict and judgment. There is a complete want of proof of any negligence on the part of defendant. There is no evidence as to whether the animals were killed or maimed by the engines or cars of the railroad company. The only evidence contained in the record in that regard is that the animals were found near the track, one dead and the other maimed so that it had to be
There are other defects in the complaint and proof which require no notice.
We are therefore of the opinion that the complaint does not state facts sufficient to constitute a cause of action under Section 950 of the Civil Code, and that the verdict is not supported by the evidence. The judgment must therefore be reversed, and we so advise.
Per. Cúriam. — For the reasons stated in the foregoing opinion, the judgment is reversed, and the cause remanded.