8 Mont. 271 | Mont. | 1889
This action is for damages for the alleged negligent killing of plaintiff’s horse by defendant, upon its railroad. The defendant appeals from the order denying a new trial. One of the alleged errors relied upon by appellant is the following instruction given by the court at the request of respondent: “ Under the laws of this Territory, the killing being proved, or being admitted, as in this case, the negligence of the defendant must be presumed, and the burden of proving the exercise of due care devolves upon the defendant; and unless the defendant shows that it exercised reasonable care and caution to avoid the killing, then you will find for the plaintiff.” Section 713, page 826, Compiled Statutes, provides as follows: “Every railroad corporation or company operating any line of railroad or railway, or any branch thereof, within thé limits of this Territory, which shall damage or kill any horse .... 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 conceded by counsel for respondent that this section literally construed is unconstitutional; and we would not pass upon the question if we were not of the opinion that the instruction complained of is erroneous, unless it can be held good under the statute, thus stating á rule more favorable to the appellant than the law requires.
There is an apparent conflict of authorities upon this question; but upon a careful investigation of the cases the conflict disappears, and few authorities can be found sustaining a statute similar to that which we are now considering. The leading case upon the subject is Thorpe v. R. R. Co. 27 Vt. 140; 62 Am. Dec. 625; and this case has been followed in the case of Rudemacher v. R. R. Co. 41 Iowa, 302, which also cites R. R. Co. v. McClelland, 25 Ill. 140. These cases will serve to show the distinction, which, we think, is to be made between the case under consideration and the majority of those cases which are usually cited as sustaining a doctrine contrary to the conclusion which we have reached upon this question. The statutes of Vermont and Illinois, which the courts of those- States were considering, enacted that all railroads should erect and maintain sufficient fences along their tracks, and declared that all rail
We think such a construction violates the principles of the Constitution. After a careful consideration of all the cases, we firmly believe that the case from the Iowa Supreme Court is the only case which sustains a statute similar to ours. It would be almost impossible to add aught to what has been said upon this subject by other courts, and we content ourselves with stating the conclusion already announced, citing as authorities the following cases: Cairo & F. R. R. Co. v. Parks, 32 Ark. 131; Zeigler v. R. R. Co. 58 Ala. 595; Ohio & M. R. R. Co. v. Lackey, 78 Ill. 55; 20 Am. Rep. 259.
In Illinois a statute required railroads to defray the expenses of burial of all persons dying on or killed by their trains. In the case last cited, the court says: “ On what principle is it that railroad corporations, without any fault on their part, shall be compelled to pay charges which, in other cases, are borne by the property of the deceased; or, in default thereof, by the county in which the accident occurred? An examination of the section will show that no default or negligence of any kind need be established against the railroad company, but they are mulcted
Counsel for respondent have cited upon this point a case from 53 Ala. 595. In a later case from the same State, the court refused to give such a construction to the statute, and held that a rule of positive and conclusive proof was contained in the statute, which was therefore unconstitutional. (See Zeigler v. R. R. Co. 58 Ala, 594.)
We are of the opinion that the instruction cannot be sustained, either as a statutory rule of law, or as a correct interpretation of the general law upon the subject of negligence.
There are cases cited upon the brief of respondent which declare the rule to be as stated in the instruction under review. But the great weight of authority is against such a proposition, and we consider it to be contrary to the true principle governing the case. The gist of the action is negligence, and until some negligence is shown there cannot be said tq be any liability.
Much has been said in argument in this case for and against this rule as applied to railroads. It is not for us to declare what the law should or should not be, or to declare that what is law for one is not law for all. The legislature is now in session and may adopt such law as to it seems wise.
This decision does not conflict with the rule established in Diamond v. R. R. Co. 6 Mont. 580. That case was decided upon a statute expressly declaring that railroad companies shall keep their right of way free from dead grass, and that a failure so to do shall be prima fade evidence of negligence. (Comp. Stats. § 719, p. 830.) And in the opinion in that case the learned judge further justified the decision upon the ground that there are accidents arising from certain causes, the very existence of which shows a prima fade case of negligence, tbe cause of the accident in that case being sparks from a locomotive. Mr.
The order appealed from is reversed with costs; and the cause is remanded to the court below for a new trial.
Judgment reversed.