51 Neb. 479 | Neb. | 1897
This was an action to recover the value of a horse alleged to have been fatally injured by one of defendant’s trains. The evidence adduced on the trial disclosed substantially the following facts: In the daytime of March 26, 1892, plaintiff’s horse went upon the defendant’s road about ninety rods south of one of its bridges, and at a point where the law made it the duty of the company to build and maintain a fence on each side of its right of way. At the time an engine and train of cars approached from the south at a high rate of speed, and when within forty or fifty rods from the horse, the engineer sounded the alarm whistle, of his engine, which, with the rapid approach of the train, frightened the horse, causing him to run north along the track and upon the open bridge, where he fell among the timbers and was so crippled and
A number of rulings of the trial court are assigned as error, but the only point presented for consideration is whether there must have been an actual collision between the train and the horse in order to make the defendant liable. The decision turns upon the construction given sections 1 and 2, article 1, chapter 72, Compiled Statutes.
Section 1, after providing that railroads shall be fenced, declares that “so long as such fences and cattle guards shall be made after the time hereinbefore prescribed for making the sarnie shall have elapsed., and when such fences and guards, or any part thereof, is not in sufficiently good repair to accomplish the objects for which the same is herein prescribed, is intended, such railroad corporation and its agents shall be liable for any and all damages which shall be done by the agents, engines, or trains of any such corporation, or by the locomotives, engines, or trains of any other corporations permitted and running over or upon their said railroad to any cattle, horses, sheep, or hogs thereon.”
The next section of the same article reads as follows:
“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 stock injured, killed, or destroyed by their agents, employes, or engineers, or by the agents, employes, or engines belonging to any other railroad company running over and upon such road, or there being,” etc.
In Fremont, E. & M. V. R. Co. v. Lamb, 11 Neb., 592, Lake, J., of the last quoted section, said, arguendo, that
In Burlington & M. R. R. Co. v. Shoemaker, 18 Neb., 369, the foregoing statutory provisions were before the court for consideration, and it was held that the injury to stock must result from actual collision or contact with the engines or cars, or through the negligence or willful misconduct of an agent or servant of the company in the course of his employment, in order to create a liability against the corporation. The facts in that case differ from those in the case before us in one respect. There the horse, while on the right of way, was so frightened by a passing train that he ran after the cars and into a bridge on the line of the railroad and was injured, while here he was run into the bridge by the engine and cars.
Fremont, E. & M. V. R. Co. v. Pounder, 36 Neb., 247, was decided upon a state of facts quite similar to those in the case before us, and it was ruled that instructions requested by the corporation to the effect that it was not liable for the death or injury of stock caused by a moving train, where there is no actual or direct collision with such train, were properly refused. In the opinion in the Pounder case no reference was made to the two earlier opinions in this court already mentioned.
It is obvious that the three decisions are irreconcilable, and the question confronting us is which one of them properly construed the provisions of the sections copied above. Counsel for the railroad company contend that the statute contemplates a direct collision between the engine or train and the animal injured, and since the horse was not injured by any actual contact with any part of the train, the company is not liable and the plaintiff is without remedy. We cannot adopt this as the true construction. To do so would be to interpolate words into the statute which were not placed there by the lawmaking
The courts of some of the sister states have held, under1 statutes not materially different from ours, that there must be an actual collision to give a right of recovery by the owner of injured stock. But the reasons in the opinions assigned for such construction are insufficient to in- * duce us to depart from the rule announced in Fremont, E. & M. V. R. Co. v. Pounder, 36 Neb., 247. Under the evidence no other verdict could have been properly returned, and the judgment is accordingly
Affirmed.