43 Wis. 665 | Wis. | 1878
I. Oh. 248 of 1875 cannot be taken to repeal or modify secs. 30 and 31 of ch. 119 of 1872.
“ This is a question of constructive repeal. In Attorney General v. Brown, 1 Wis., 513, this court adopted the uniform rule governing such cases. If there be two affirmative statutes upon the same subject, one does not repeal the other, if both may consist together; and we ought to seek for such a construction as will reconcile them.” .... Attorney General v. Railroad Companies, 35 Wis., 425.
The two statutes here in question may not only stand together, but the provisions of the later were obviously designed to be cumulative to the provisions of the earlier.
Neither do they fall within the rule, that a later statute revising the subject of an earlier statute, works a repeal of the latter. Lewis v. Stout, 22 Wis., 234; Burlander v. Railroad Co., 26 id., 76; Simmons v. Bradley, 27 id., 689; Moore v. Railway Co., 34 id., 173; Olson v. Railway Co., 36 id., 383. For the chapter of 1875 does not attempt to revise the provisions of 1872; does not purport to cover the whole
The sections of the general railroad act of 1872 require railroads to be fenced, and declare the liability of the companies for injury to domestic animals occasioned by failure to fence. When such fences are made and maintained, these sections declare that the companies shall be liable only for willful or otherwise negligent injury. They proceed to declare the liability of individuals for placing domestic animals on railroads, and make other provisions tending to prevent accidents on railroads.
The chapter of 1875 requires railroads, two years or more in operation, to be fenced through inclosed lands; and, upon failure of the company, authorizes occupants of inclosed lands to give notice to the companies to fence; and, upon continued failure, gives an action to occupants against the companies for a penalty for every train passing through their inclosed lands.
Manifestly, these penalties given upon default to fence, without consequent injury, are not a substitute for the liability for actual injuries declared by the sections of 1872. The penalties are a distinct and independent remedy to force railroad companies to fence against danger of accident. The action given by the statute of 1875 goes upon an essentially different ground from the action given by the statute of 1872. The one is penal, by way of coercion; the other is remedial for actual damages sustained. And, under the conditions given in the act of 1875, actions for penalties for not fencing, and actions for damages occasioned by failure to fence, would lie together; penalties recovered not going to compensation for damages sustained, and damages recovered for actual injuries not satisfying penalties incurred.
The first section of the chapter of 1875 requiring railroads in operation for two years to be fenced through inclosed lands, is plainly intended to state the conditions under which notice may be given under the second section. The two sec
It is needless to point out the essential details of the general statute which the particular statute does not attempt to cover, because it was not meant for a revising, but only for a cumulative, statute.
This case is therefore to be determined under the provisions of the general railroad act.
II. Assuming the appellant’s duty to have fenced its road at the locus in quo, the respondent’s right to recover was put, upon the trial below, upon the question of his contributory negligence. And the first question to be determined here is, whether contributory negligence of a plaintiff enters into the defense, in an action against a railroad .company for injury to domestic animals occasioned by total failure to fence the road.
It has been generally understood by the profession, for years past, that this court held the liability of railroad companies in that case to be absolute. McCall v. Chamberlain, 13 Wis., 637, has, it is believed, been generally credited with the establishment of the rule. But a critical examination of the late Mr. Justice Paine’s opinion in that case does not appear to warrant that view. Doubtless there Are things said in the case, arguondo, appearing to tend that way. But the question on which the opinion turns is, whether the mere fact that the animals were trespassers, would defeat the action. Of
It has perhaps been sometimes supposed that the same learned and lamented judge affirmed the rule of absolute liability for failure to fence, in his opinion in Antisdel v. Railway Co., 26 Wis., 145. That would be a great mistake. The question of contributory negligence is not considered in the opinion. It is very significant, however, that in that case, which turned upon negligence of the railroad company in not maintaining its fence, the charge of the court below distinctly submitted to the jury the question of contributory negligence, as a defense to the action. This appears in the record, though not in the report. There is no doubt expressed in the opinion of the accuracy of the charge; and this silence may have some effect in the construction of the opinion. It is held in that case that the statute requiring railroad companies to maintain fences,, though absolute in terms, does not impose impossibilities upon railroad companies; but only holds them, to-a high degree of diligence. There are phrases in the opinion which, like some in McCall v. Chamberlain, recognize an absolute liability for not building fences. Rut the opinion seems to disclose the sense in which that term is used. The duty of railroad companies to fence their roads is declared to be the same as the duty of towns to make their highways sufficient, and both are said to be absolute in terms by statute. The liability in both
This appears to be an accurate statement of the law. For the statutes governing railroad companies and towns, and declaring their liability for failure of duty, in these respects, are alike absolute. And they do not distinguish between the duty of railroad companies to build and their duty to maintain fences, or between their liability for failure to build and for failure to maintain; do not distinguish between the duty of towns to make their highways sufficient, and their duty to keep them sufficient, or between their liability for failure to make them and for failure to keep them so. This appears to be held in all the cases. And when Mr. Justice Pawe says of one of these duties, that it holds railway companies, not to an absolute duty under all conditions, but only to a high degree of diligence, his opinion appears not only to imply the application of that rule to all of those duties, but also to imply the application of the rule of contributory negligence to cases going upon failure to. perform any of them. For the opinion appears to put the right of action, as it undoubtedly is, as for negligence. And the rule is universal that, in actions for injury by negligence, contributory negligence sufficient in degree will defeat them.
The comparison of the duties and liabilities of railroad companies and towns, in these respects, is a happy one. And yet no case is remembered, in which this court has distinguished between the liability of a town for injury caused by a highway never worked and defective ah initio, and by a highway once
The views expressed in Antisdel v. Railway Co. appear to be quite inconsisent with the rule previously affirmed in Brown v. Railway Co. and Sika v. Railway Co., cited infra.
The absolute liability of railroad companies for injuries on unfenced roads, without reference to contributory negligence, is not held in Bennett v. Railway Co., 19 Wis., 145. The question was not in that case, where the animal appears to have gone upon the track from depot grounds not required to be fenced, by negligence of the owner. It is said indeed, in the opinion of Mr. Justice Cole, that if the animal had strayed upon the road from a place which the statute required to be fenced, and which the company had not fenced, the company would be liable by reason of that neglect, without reference to negligence of the train which caused the injury; citing McCall v. Chamberlain. . But that signifies only that failure to fence is negligence, and the question of contributory negligence, in such a case, is not considered or mentioned.
Blair v. Railway Co., 20 Wis., 254, does not pass upon the question, but strongly suggests that contributory negligence would defeat an action for injury caused by the company’s failure to fence. That was an action by a passenger against the company as a common carrier of passengers, for injuries received in consequence of the failure to fence. Of course a
So far it appears to be clear that the rule of absolute liability had not been adopted; and that intimations in favor of such a rule were apparently neutralized by intimations against it. But in Brown v. Railway Co., 21 Wis., 39, the rule of absolute liability was distinctly affirmed. The refusal of the circuit judge to instruct the jury that contributory negligence of the plaintiff would excuse the defendant, was expressly upheld. The opinion of the chief justice on the point is very brief; hardly discussing the question; not citing an authority in favor of the rule; appearing rather to take it for granted. The case appears to hold the statutory liability absolute, however gross contributory negligence might be. It seems to have been overlooked that the absolute liability of the statute is for damages occasioned by the failure to erect and maintain fences; that is, occasioned by that only. The word “ occasioned” was apparently used in one sense of “ caused; ” and accurately used. Dr. Johnson’s first definition of the verb, to occasion, is, to cause casually; his second, simply, to cause. Dr. Webster’s is not substantially different: to give occasion to, to cause incidentally, to cause. Mr. Crabb appears to give the like construction to the word: “ what is caused seems to follow naturally; what is occasioned follows incidentally.” Of course, the want of a fence cannot, of itself, cause injury, but it gives occasion to injury; causes it incidentally. The want of a sufficient fence gives occasic i to an animal to go
It may be remarked in passing, that the chief justice’s comments on Hance v. Railroad Co., 26 N. Y., 428, appear to be not altogether consistent with the judgment in Dunnigan v. Railway Co., 18 Wis., 28. The latter case, by the way, clearly recognizes the application of the rule of contributory negligence to an action for failure to maintain cattle guards, fairly implying its application to actions for any failure under the statute.
The rule is reasserted at the next term in Sika v. Railway Co., 21 Wis., 370; but it is asserted only, not considered. This case is noticeable only for the chief justice’s distinct recognition that the action for injuries occasioned by failure to fence, is an action for negligence; which, in principle, appears to give away the rule of absolute liability, independent of contributory negligence.
There is a sentence, purely obiter, in Mr. Justice Cole’s opinion in Schmidt v. Railway Co., 23 Wis., 186, suggesting that,‘in case of injury to a domestic animal, “ by the failure to erect the fence, the liability of the company would be clear and absolute, regardless of the question whether the owner had been guilty of negligence.” This is a very broad reassertion
In Laude v. Railway Co., 33 Wis., 640, the liability of the railroad company turned upon its having permitted a gate in the fence to remain open for a long time. That was of course equivalent to a defective fence, to want of fence pro tanto. It is said in the opinion in that case, that the court below was right in assuming that there was no evidence of contributory negligence to go to the jury. This is a singular mistake. It is said indeed of particular circumstances which might imply the plaintiffs negligence. But no particular instruction was asked in reference to those circumstances. And the charge of the court below expressly submitted to the jury the questions of the defendant’s negligence and of the plaintiff’s contributory negligence; expressly instructed the jury, in terms broad enough to include any negligence of the plaintiff, that his contributory negligence would defeat the action. The charge appears to have followed closely the language of the opinion in Antisdel v. Railway Co., evidently fresh in the mind of the learned counsel who drew the instructions, probably before the learned circuit judge when he gave them. The charge declares the liability for not fencing to be absolute, where there is no contributory negligence; holds railroad companies to a high degree of diligence in maintaining their
This doubtful state of the law was certainly unsatisfactory, as appears to have been first perceived in Pitzner v. Shinnick, 39 Wis., 129. That case involved negligence in leaving open
Then come the cases of Jones v. Railroad Co., 42 Wis., 306, and Lawrence v. Railway Co., id., 322, considered and decided together. The former of these cases turns upon a similar question to that in Pitzner v. Shinnick, and affirms that case. The latter also involved, to some extent, liability for not maintaining fences, and the question whether contributory negligence would defeat an action for failure to maintain them. The court held that it would; and used this language on the general question:
“ It must be confessed that there is some discrepancy in the cases in this court, construing and enforcing the liability of railroad companies upon failure of duties imposed by statute. In the case of Jones v. S. & F. R. R. Co., considered and decided at the same time as this, notwithstanding some things said or ruled in McCall v. Chamberlain, 13 Wis., 637, Brown v. M. & P. Railway Co., 21 id., 39, Laude v. C. & N. W. Railway Co., 33 id., 640, and perhaps other cases, we hold that, while we are not now prepared to say whether or not contributory negligence would be a defense to an action for injury arising from the failure of a railroad company to construct, a fence as required by the statute, contributory negligence of*681 the plaintiff may defeat an action for injury arising from failure oi a railroad company to maintain in repair such fence, once built. The principles on which numerous cases in this court rest, admitting contributory negligence as a defense in actions against railroad companies, for injuries arising from unlawful speed of trains within corporate limits, appear certainly to sanction the application of the same rule to the latter, if not to the former class of eases, under the statute requiring railroads to be fenced. The question will be fully considered in Jones v. S. & F. Railroad Co., and need not be further discussed here.”
These are the cases on the subject. There may possibly be others bearing directly on the question, though it is believed not. If there are not, this review seems to suggest a conjecture that the court rather happened upon the rule of absolute liability, than adopted it upon consideration. There does not appear to be anything in the previous cases in the court to support its summary adoption in Brown v. Railway Co. It appears to have been followed only in Sika v. Railway Co. And the doctrine appears to be afterwards discredited, perhaps forgotten, in Antisdel v. Railway Co., if not in Laude v. Railway Co. The last three cases, Pitzner v. Shinnick, Jones v. Railroad Co. and Lawrence v. Railway Co., expressly overturn one-half of the rule, the half of it which was directly in question in Brown v. Railway Co. and Sika v. Railway Co.
Doubtless the statute might have prescribed a rule of absolute liability in the way of penalty. But the wisdom of such a rule would be more than doubtful. Be that as it may, it is the duty of the court to interpret the statute as it is written. And here it may be proper to remark that the statute was not taken from New York, and is essentially different from the statute there, to which construction is given in Corwin v. Railroad Co., 13 N. Y., 42, and other cases. The statute there provides that until a railroad company shall have built its fences, it shall be liable for all damages to animals on the
The cases of Pitzner v. Shinnick, Jones v. Railway Co., and Lawrence v. Railway Co., overturning one-half of the rule of absolute liability, virtually disaffirmed the whole. They probably prepared the profession for the entire disaffirmance of the rule. They seem to have pi’epared so intelligent a jurist as the learned judge before whom this cause was tried. His charge disregarded the authority of Brown v. Railway Co.; instructing the jury that contributory negligence would defeat the action. It is unnecessary to repeat here what was said on the subject in those cases; showing the unsoundness of the rule in principle, and its inconsistency with the uniform rule in other actions for negligence,
The rule can no longer be upheld. The rule of this court must be taken as sustaining the defense of contributory negligence to actions against railroad companies, for injuries occasioned by failure either to erect or to maintain fences on the line of their roads, as in other actions for negligence.
III. Says Mr. Justice Paine, in McCall v. Chamberlain, supra: “The only question upon which it would seem there could be any room for doubt is, whether the statute requiring the company to fence was intended merely to regulate the division fences between the company and the adjoining landowners, for the convenience of the latter only, leaving the liability of the company, with respect to all others, as it would have been at the common law; or whether it was designed for the protection of the public generally, whose animals were liable to get upon the track. This question is suggested in the case in 3 Kernan, and the court came to the conclusion that the latter was the object of the statute. That conclusion seems to us more especially true in this state, many parts of which are thinly settled, and where it is almost the invariable custom for the settlers to allow their animals to run at large, fencing only their plowed lands. The rule of the common law requiring every one to fence in his own animals, under pain of their being considered trespassers if they entered even on the uninclosed lands of another, if strictly enforced, is often productive of hardships in a new country like ours. For this reason it has never been adopted in some of the states. Murray v. R R. Co., 10 Rich. Law, 227; N. & C. R. R. Co. v. Peacock, 25 Ala., 229. It has been held to be the law in this state, though it is generally disregarded by common consent in the newly settled part of the state. And this fact, which was undoubtedly well known to the legislature, as well as the frequent hardships resulting from the strict enforcement of the common-law rule, leads our minds
Where there is a body of uninclosed land, and a custom of turning cattle upon it to pasture, for a long time, without objection, .license might perhaps be implied. But that question was excluded by the court below, and is not here.
But several cases in this court uphold the right to recover, in a case otherwise proper, under the statute, for injuries to domestic animals coming upon a railroad from land on which they were trespassers. McCall v. Chamberlain, Pitzner v. Shinnick, supra. As Whiton, C. J., remarks in Pritchard v. Railway Co., 7 Wis., 232, trespassing animals are not outlawed. And if, as all the cases in this court appear to hold, the mere fact that they are trespassers on the railroad itself, will not defeat a recovery, it is difficult to perceive why the fact that they had just before been trespassers elsewhere, should have that effect.
The mere fact, therefore, if the fact sufficiently appear here, that the respondent’s cow was permitted to pasture on land which he did not own, would not defeat his action. The true question was, whether the respondent was guilty of contributory negligence in suffering his cow to be at large upon unfenced land. The court below submitted that as a question for the jury. The verdict is, that it was not. And the question for this court is, whether the facts justified the court below in treating the contributory negligence imputed to the respondent as a question of fact; or whether the respondent’s act was so manifestly and conclusively negligent, the court below should have withheld the question from the jury, and found the contributory negligence as matter of law. Langhoff v. Railway Co., 23 Wis., 43; Lawrence v. Railway Co., supra.
In Lawrence v. Railway Co., it was held to be contribu
The circumstances here are very different. The cow appears to have been left, presumably with other cattle, in summer, on grass-land, some three-quarters of a mile from the railroad; certainly at a comparatively safe distance, and with no apparent temptation to stray so far, or to leave its pasture for the uninviting barrenness of a railroad, without even garbage to prey upon.
The danger to the animal in the former case was close and imminent; in the latter, remote and not apparently probable. An owner of ordinary prudence would not incur the risk of injury in the one case; might well incur it in the other. Negligence in the one case is not open to debate or doubt; in the other, it is manifestly open to both. . Where negligence does not admit of doubt or debate, it is matter of law for the court. Where negligence is a question for doubt or debate, it is matter of fact for the jury. Negligence “ may, in general, be said to be a conclusion of fact to be drawn by the jury, under proper instructions from the court. It is always so where the facts, or rather the conclusion, is fairly debatable or rests in doubt.” Langhoff v. Railway Co., 19 Wis., 489.
The question is generally a mixed one of law and fact. There may or there may not he a question of fact for the jury.
By the Court. — The judgment of the court below is affirmed.