14 Neb. 70 | Neb. | 1883
This is an action by Brinkman against the railroad company to recover for the loss of stock killed by the locomotive and cars of said company, the railroad at the place where the stock was killed having been built and in operation more than six months. To the petition the railroad company filed the following answer: “Now comes the defendant above named and for answer to the petition filed herein by the plaintiff admits that it is a corporation; that on or about the eleventh day of October, 1881, it was operating a line of railroad through Johnson county, known as the Atchison and Nebraska Railroad; that a train running on said railroad ran over two calves belonging to the plaintiff, killing one and wounding the other so that it died, both being of the value of twenty-eight ($28) dollars as set forth in plaintiff’s petition; that said road v as not fenced at the point where said calves entered on the defendant’s track
Brinkman demurred to the second count upon the ground that the facts stated therein were not sufficient to constitute a defense to the action. The demurrer was sustained and judgment rendered in his favor for the amount claimed in the petition. The only objection in this court is, that the court erred in sustaining the demurrer.
The “Act to define the duties and liabilities of railroad companies,” which was passed and took effect in June, 1867, is as follows: “That every railroad corporation whose lines of road or any part thereof is open to. use, shall, within six months after the passage of this act, and every railroad company formed or to be formed, but whose lines are not now open to use, shall, within six months after the lines of such railroad or any part thereof are open, erect and thereafter maintain fences on the sides of their said railroad, or the part thereof so open for use, suitably and amply sufficient to prevent cattle, horses, sheep and' hogs from getting on the said railroad, except at the crossings of public roads and highways, and within the limits of towns, cities and villages, with opens, or gates, or bars at all the farm crossings of such railroads, for the use of the propri
“Sec. 2. Any railroad company hereafter running or operating its road in this state, and failing to fence on both sides thereof against all live stock running at large at all points, shall be absolutely liable to the owner of any live stoelc injured, hilled or destroyed by their agents, employes or engineers, or by the agents, employes or engines belonging to any railroad company running over and upon such road, or there being; Provided, That in case the railroad company liable under the provisions of this section, shall neglect or refuse to pay the value of any property so injured or destroyed, after thirty days’ notice in writing given, accompanied by an affidavit of the injury or destruction of said property, to any officer of the company, or any station agent or ticket agent employed in the management of its business, in the county where the injury complained of shall have been committed, such railroad company, their
In 1879, section 14 of the herd law was amended to read as follows: “No cattle, horses, mules, swine or sheep shall run at large during the night time, between sunset and sunrise, in the State of Nebraska, and the owner or owners off any such animal shall be liable in an action for damages done during such night time.” Comp. Staff, 51.
It will be seen that there is no allegation that the company was free from fault, or that the accident was unavoidable. Even if the animals were trespassing on the track, and were killed by the negligence of the company’s employes in running trains, the company would be liable. A railroad company like an individual is bound to use ordinary care and diligence, so as not unnecessarily to injure the property of others. Ill. Gent. R. R. Co. v. Middleworth, 46 Ill., 494. Bemis v. Com., 42 Vt., 375. Isbul v. N. Y. R. R. Co., 27 Conn., 393. C. & Z. R. R. Co. v. Smith, 22 Ohio State, 244. The answer is defective in failing to state facts showing that the company was not negligent. The demurrer therefore was properly sustained. But we do not rest our decision upon this ground. The question to be determined is, Was the failure of Brink-
In Spencer v. C. & N. W. R. R. Co., 25 Iowa, 139, the case was submitted to the court on the following agreed statement of facts: “The defendant is a corporation, and during the year 1865 was running and operating a railroad in this state and through the county of Tama. On the tenth day of October, 1865, in Salt Creek township, in said county, a train of cars, running on said defendant’s railroad, ran against and killed a hog of the plaintiff’s of the actual value of forty-five dollars, which hog at that time was running at large. Said railroad was not fenced on either side thereof at the point where said hog was killed, and the defendant had the right to fence said road at said point. More than thirty days before the commencement of this suit, the plaintiff served on the defendant a notice, accompanied by an affidavit of the killing of said hog, in which he stated and claimed the value of said hog at sixty-five dollars. The defendant did not pay or offer to pay to the plaintiff the value of said hog, or any part thereof, before the commencement of this suit. At the general election held in and for said county of Tama, in November, 1864, it was determined by a vote of the legal voters of said county that hogs and sheep should be prohibited from running at large in said county from and after the first day of August, a.d. 1865; and said vote, determination and prohibition was in force and effect in said county at the time said hog was killed.”
The statute of Iowa was as follows: “ Sec. 6. Any railroad company hereafter running or operating its road in this state, and failing to fence such road on either or both sides thereof, against live stock running at large, at all points where said roads have the right to fence, shall be absolutely liable to the owner of any live stock injured, killed or destroyed, by reason of the want of such fence or
It will be seen that the facts in the Iowa case were substantially the same as in that under consideration, and that the statute contains the same provisions in substance as ours as to the liability in case of neglect to erect fences.
The court by Cole, J., say (page 141): “ Under the ordinary and well recognized rules of law, it is very clear that since this plaintiff was himself guilty, not only of negligence but of the violation of a positive regulation or law, in suffering or allowing his hog to run at large, he could not recover. But our statute quoted above makes the railroad company absolutely liable for stock killed on its road if not fenced. This liability exists regardless of the question of negligence. * * * The agreed statement is silent as to whether the hog was running at large by accident, or by the careless or wilful act of the plaintiff. Unless it was the latter, plaintiff may recover; and this latter fact must be shown or the right to recover is not defeated. It is not shown in this case. * * The only fact shown is that the hog was at large contrary to the regulation in that county. This alone, under our statute, will not defeat the plaintiffs right to recover.”
This case seems to be adhered to by that court, and is cited in 27 Iowa, 284; 32 id., 562; 34 id., 338; 37 id., 348.
The Iowa statute contains the words “unless the injury complained of is occasioned by the wilful act of the owner or his agent,” which ours does not contain; but these words neither increase nor restrict the liability of the company, as it will not be contended that the company would be liable for a wrong willfully committed by one not representing the company.
“Every corporation formed under this act shall erect and maintain fences on the sides of their roads, of the height and strength of a division fence required by law, with openings or gates or bars therein, and farm crossings of the road for the use of the proprietors of lands adjoining such railroad; and also construct and maintain cattle guards at all railroad crossings, suitable and sufficient to prevent cattle and animals from getting on to the railroad. Until such fences and cattle guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses, or other animals thereon; and after such fences and guards shall be duly made and maintained, the corporation shall not be liable for any such damages, unless negligently or wilfully done.”
The court say: “ By the common law, the owner was bound to take care that his cattle did not leave his own lands and trespass upon those of his neighbor (Promfret v. Biet'oft, 1 Wm’s. Saund., 321), if they did, he was himself liable for damages in an action of trespass. It has long been settled in this state that there can be no recovery in an action on the case for negligence, where the negligence or misconduct of the plaintiff contributed to the injury; hence it was repeatedly decided prior to the general railroad act of 1848, that one whose cattle were trespassing upon the railroad at the time they received the injury, could not recover damages of the railroad company.” * * * * ***** “But a new state of things has arisen. A power, but recently discovered and applied to the uses of.man, has been appropriated as a motive
Denio, J., while concurring in the conclusion reached, filed a separate opinion, wherein he says (page 54): “ Having imposed this general and public duty, the legislature has proceeded to declare some of the consequences of its omission. The corporation in that case is to be liable for all damages which shall be done by their agents or engines, to cattle, horses, or other animals thereon. The defendant neglected to make cattle guards and fences; and for want of these safeguards, the plaintiff’s cattle came upon the track of the railroad and were destroyed. * * * I am satisfied that the design of the section is to require the railroad companies to inclose their track within substantial fences, and guard it by ditches, by cattle guards, from the approach of animals wandering on the highway, and one method provided for securing that object is the provision charging the companies with damages for all injuries done to animals where they have disregarded the statute.”
In Fawcett v. The York & N. M. Rw. Co., 2 Eng. Law and Eq., 289, the plaintiff’s horses being in the highway, passed through an open gate on to the railroad track and were killed. The statute required the railway company to erect gates across the highway at the crossings of the railway, and to keep them closed, except, etc. The defendant claimed that as the horses were unlawfully in the highway that therefore the company was not liable, because it was not bound to keep the gates closed against them; but the court held the company liable, as the law had imposed the duty of erecting gates and keeping them closed on the company, which duty it had failed to perform; the court would
In the case of the Kansas P. Rw. Co. v. Mower, 16 Kas., 573, it was held that a statute requiring a railroad company to fence its track was constitutional, being a power under the police power of the state. The first and second sections of the Kansas act are as follows:
“Section 1. Every railroad company or corporation in this state, and every assignee or lessee of such company or corporation, shall be liable to pay the owner the full value of each and every animal killed, and all damages to each and every animal wounded by the engine or cars on such railway, or in any other manner whatever in operating such railway, irrespective of the fact as to whether such killing or wounding was caused by the negligence of such railroad company or corporation, or the assignee or lessee thereof, or not.
“Sec. 2. In case such railway company or corporation, or the assignee or lessee thereof, shall fail for thirty days after the demand therefor by the owner of such animal, or his agent or attorney, to pay such owner or his agent or attorney, the full value of such animal if killed, or damages thereto if wounded, such owner may sue and recover from such railway company or corporation, or the assignee or lessee thereof, the full value of such animal or damages thereto, together with a reasonable attorney fee for the prosecution of the suit, and all costs in any court of competent jurisdiction in the county in which such animal was killed or wounded.”
The third section provides upon what officers a demand for compensation may be made.
The fourth section authorizes the allowance of an attorney’s fee when judgment is rendered for the plaintiff.
The fifth section is as follows: “ This act shall not ap
It will be seen that the statute does not provide that a railway company shall be absolutely liable for stock killed. In Kansas Pacific Rw. v. Landis, 24 Kas., 406, the railroad running through the defendant’s enclosure was not fenced, and a mule belonging to the defendant, in such enclosure, strayed upon the track in the night time and was killed. There seems to have been a night herd law in force at that time requiring stock to be confined during the night time.
The court say: “The theory of the defendant is, that both parties were equal violators of the law, and that therefore plaintiff cannot recover; that of the plaintiff is that the defendant was alone the transgressor, and must therefore pay for the injury which it is conceded was done. The case really turns upon the question, whether the plaintiff was, as to the defendant, confining the animal at the time of the injury. That the defendant had not fenced its right of way, and was therefore liable under the stock law of 1874, is conceded, unless it appears that plaintiff was in equal wrong, and therefore within the case of C. B. U. P. Rd. Co. v. Lea, 20 Kas., 353, not entitled to a recovery. The language of the night herd law is, that the animal must be confined in the night time; in this case the animal was loose in a quarter-section, which as to the general public, was enclosed with a sufficient fence.” The decision of the court turns upon the question of the defendant’s alleged negligence.
In the case of the C. O. R. R. Co. v. Lawrence, 13 Ohio State, 66, cited by the plaintiff in error, the action was to recover for stock killed by negligence, and that was the issue.
In P., Ft. W. & C. Ry. Co. v. Methven, 21 Id., 586, the action was for killing stock, and the answer that the plaintiff permitted the animal to run at large contrary to the
The court say, page 594: “In support of the opposite view, the strongest case to which our attention has been called is Corwin v. The New York & Erie Railroad Co., 3 Kernan, 42. The facts of that case are on all fours with the case in hand, but the difference between the terms of the statute of New York on the subject of fencing railroads and of our own, is quite sufficient to justify the difference in the conclusions. After requiring railroad corporations to fence their roads, the statute of that state declares that “ until such fences and cattle guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses, or other animals thereon.” By that statute it will be observed the immediate cause of the injury, to-wit: the act of “their agent or engines,” is made the ground of liability, and that, too, without any reference to the fact whether the want of fences does or does not contribute thereto. Yet it is conceded by the judges delivering opinions in that case, that “ should it appear that the plaintiff drove his cattle upon the road, or in the neighborhood of the road, and left them there, or did any other positive act increasing the danger to his cattle, a very different question would arise. The maxim, Volenti non fit injwi'ia, would then apply.” But by our statute the liability is only incurred when the injury results “by reason of the want or insufficiency of fences, road crossings or cattle guards, or by any carelessness or negligence of such company, party, agent or agents thereof.” In the case of D. & M. R. R. Co. v. Miami Co., 6 Central Law Journal, 436, the supreme court commission of Ohio rendered a decision in effect affirming that above cited from 21 O. S. In none of the cases cited by the plaintiff in error does the statute appear to be similar to ours.
The first section of our statute seems to have been copied
Judgment affirmed.
