100 Neb. 462 | Neb. | 1916
These actions are brought to recover liquidated damages from a common carrier for failure to comply with the terms of the “speed law.” Rev. St. 1913, secs. 6018, 6019. In the Davison case, which is to recover for delay in shipment of stock east-bound from Ainsworth to South Omaha, a jury was waived, the cause tried to the court, findings made, and a judgment rendered for the plaintiff for $935. The shipment in the McCormick case Avas of one car of cattle Avest-bound from South Omaha to Andmvs, a distance of 469 miles. A verdict of $170 Avas directed. In the Deoster case delay was complained of in transporting three cars of cattle west-bound from south Omaha to O’Neill. A verdict Avas directed for $545. Defendant appeals in eách case. The three causes were submitted together in this court and are illustrative of different conditions.
The petition in the Davison case contains 15 separate causes of action which are substantially alike. In sub
The answer alleges that the shipments were forwarded with due and proper dispatch. It also pleads that each shipment was necessarily delayed for the purpose of taking coal and water for the locomotive, for meeting west-bound trains, and permitting passenger trains going in the same direction to pass, for setting out and picking up empty cars and dead freight for stations through which the trains passed, for the purpose of inspecting, making up and rearranging trains at division and junction points, and for other purposes necessarily incident to the operation of trains; that a portion of the delay was occasioned by hot boxes and by extremely cold weather and storms, and that all were necessary in the operation of its railroad and for the service of the communities dependent upon it for railroad transportation.
It is further pleaded that defendant’s road is a single-track railroad, part of a system extending into and through eight other states; that it was engaged in transporting both interstate and intrastate traffic from Ainsworth to South Omaha, carrying United States mail and passenger trains in both directions, and carrying live stock as interstate commerce from points in South Dakota and Wyoming to South Omaha and Sioux City and Chicago; that it is and was impossible to so operate its railroad as to move the stock shipments at the statutory speed without unreasonable interference and delay to west-bound interstate commerce and United States mail, and without giving preference to intrastate shipments of live stock eastbound; that the live stock offered in this state for trans
The findings of the court in the Davison case, on the first cause of action, summarized are: That the time necessarily consumed in setting out, loading and picking up
The court refused to make the following findings requested by defendant: That a compliance Avith the speed statute would require the abandonment of safety precautions in the operation of its trains, and would tend to promote unsafe methods of operation, danger to the general public, and the violation of the speed ordinances, and would cause loss and damage to freight, passehgers and employees; that the time necessarily consumed in Avaiting for and meeting passenger trains carrying United States mail, in • meeting trains carrying interstate commerce, in taking coal and water, in inspecting trains at division points for defects in safety appliances, and in
The affirmative findings of fact made by the trial court are supported by the evidence, and their correctness is not disputed by either party. The train sheets covering the cars of stock offered for shipment and actually shipped westward from South Omaha during the year 1910 are in evidence in the Davison case, and from these, together with the testimony of the train dispatcher, it is shown that 1,616 cars were shipped west, mostly to Nebraska points; that there were four days in January when only one car of live stock was offered for shipment west, two days when two cars were offered, two days when three, two days when four, two days when five, two days when seven, one day when eight, and one day when nine cars Avere shipped, being 63 cars in January. In February there was an average of a little over tAvo cars a day for 15 days; in March about five cars a day for 23 days were offered. In September, October, November, and December the number of shipments was largely increased; but, even then, on only 9 days in the year did the number of cars offered exceed 20. Even where the number of cars was sufficient to make up a complete train, in most instances it could only run a short distance before being broken up, and the cars distributed to the Lincoln branch, the Superior branch, Hastings branch, Albion branch, or other branch lines. In the Dewier case it is shown that, in 1913, 1,591 cars of stock were shipped Avestward to Nebraska points and that for the years 1911 and 1912 the
It is also established that on account of unforeseen accidents and delays that sometimes happen to the train in which stock is shipped or to other trains which it is scheduled to meet, by reason of unavoidable delays incident to the business, such as wrecks, washouts, storms, cold weather, hot boxes, and the like, it is often impossible to move shipments of live stock east-bound within the limit. The time consumed on a single-track railroad in waiting at stations in order to meet mail and other trains, in taking coal and water, and time consumed at division and junction points, in inspection for defects in car appliances, and in breaking up the train and incorporating other cars brought from branch lines, are necessarily incident to the operation of the railroad. A number of •these elements increases the delay with an increase in traffic on the road. It is also evident that, as the distance to South Omaha becomes less, the difficulties in transportation become greater on account of the congestion of traffic brought to the main line from branches. The testimony of the general superintendents in Nebraska of the defendant, and of the Chicago, Burlington & Quincy Railroad Company, and Union Pacific Railroad Company, and others concerned with the operation of trains, is substantially to the effect that, while it would be possible to comply with the statute, in many instances special trains would be required for a few cars, undue preference would require to be given to such traffic over other trains, the expense of operation would be so greatly increased that, in
Defendant insists that if time necessarily occupied in taking coal and water, in talcing side tracks to allow meeting and passing trains, in delays at division stations for inspection and rearranging cars, and those caused by severe storms, washouts, excessive cold weather, unforeseen and unavoidable accidents, and the like, could be added to the exceptions in the statute, its terms might be complied with. It insists that the time consumed in such necessary operations must of reason be exempted from the provisions of the statute — citing United States v. Kirby, 7 Wall. (U. S.) 482, which is to the effect that, although a statute providing a penalty for interference with the transmission of mails did not contain an exception, yet an officer might lawfully arrest a mail carrier upon a warrant charging him with the crime of murder, even though it operated to cause delay. Other cases are cited in this contention which are mentioned in the opinion in Cram v. Chicago, B. & Q. R. Co., 84 Neb. 607, a case involving the validity of the same statute. The trouble is that to write so many exceptions into the statute would be judicial legislation. We held in the Gram case that the common-law exemption of common carriers from liability for loss occasioned by the act of God or the public enemy may be presumed to have been in thé legislative mind, and therefore the court may properly allow them to be made, though not expressed in the text; but this is as far as we find warrant to go.
Plaintiff insists that the constitutionality of the law was fully considered and definitely upheld in the Cram case, and that the question cannot be relitigated. But the main question in this case was not then presented or in issue. But little testimony was offered, and no concrete facts were presented to demonstrate that a speed of 14 or 18 miles an hour was unreasonable or impracticable. That
We are now presented with concrete cases in which defense was attempted by showing that a large portion of the time occupied by delay in transit was absolutely necessary in the proper and lawful operation of the railroad. The district court, however, determined that the statute denied the carrier the right to make such defense, or rather refused to hold that the statute permitted such a defense to be made, and, hence, a new question is presented here not determined in the former case. A statute may be upheld as against an attack made by one party claiming it to be invalid upon .one ground, and still it may be declared unconstitutional in a later attack by another litigant for reasons not called to the attention of the court, or not shown to exist, on the first attack. The facts here in evidence were not adduced in the Gram case. It may be that on account of the difference in the character and equipment of the two railroads, the weight of metal in the rails, or amount of ballast on the track, the nature of the localities through which their lines run, the 'different facilities for operation, etc., such a defense could not have been made by the defendant in that case. At all events no such showing was made. There was evidence in the Gram case showing, as a general proposition, that in the management of traffic the defendant was compelled to side track trains containing live stock and wait for passing trains; but there was no specific evidence applying to the particular shipments in controversy, nor as to other matters for which it is now asserted deductions of time should be allowed, nor as to the
A difficult question in the case is whether, if the defendant complies with the statute strictly, incurring very large expense for special trains, and making the cost of intrastate transportation of live stock westward, if carried on at the present rates, unremunerative, a sufficient remedy is furnished by the fact that it may apply to the state railway commission for an increase of rates, or whether it is the duty of the court, considering the impracticability of operation of such trains in many cases, the lack of qualification or excuses in the statute for unavoidable delays, and the additional expense which the operation of such trains at the statutory rate of speed must entail, to declare that such a statute is an unreasonable exercise of the police power, and therefore void. The extra expense of carrying on the west-bound traffic within the time limit is not necessarily the determining factor.
The case does not involve a consideration of the whole scheme of rates for the carrying of freight, but merely whether an order by the legislature to perform certain acts within a limited time is valid, and the question whether the operations of the railroad as a whole may be carried on profitably is not an issue in the case.
“The distinction between an order relating to such a subject and an order fixing rates coming within either of the hypotheses which we have stated is apparent. This is so because as the primal duty of a carrier is to furnish adequate facilities to the public, that duty may well be compelled, although by doing so as an incident some pecuniary loss from rendering such service may result.- It follows, therefore, that the mere incurring of a loss from the performance of such a duty does not in and of itself necessarily give rise to the conclusion of unreasonableness, under the doctrine of Smyth v. Ames, 169 U. S. 526.” Atlantic C. L. R. Co. v. North Carolina C. C., 206 U. S. 1, 26. But the
The state of Kansas has a speed statute (Laws 1907, ch. 276) which fixes 15 miles an hour as the rate of speed, “unless prevented by unavoidable cause,” and it allows the recovery of all damages to the shipper, with a reasonable
The question whether statutes which attempt an unreasonable exercise of the police power may be valid has been directly passed upon by the United States supreme court. Though that court concedes the validity of laws designed to secure the safety and comfort of passengers, or employees, or persons crossing the railroad tracks, it has been repeatedly held that a statute making an unreasonable exercise of the police power of the state, which interferes with interstate commerce, or which has the effect to deprive the carrier of its property without due compensation, or .to deny it the equal protection of the laws, is invalid. A discussion of how far the right of regulation may go, with a consideration and citation of prior cases on the subject, may be found in the opinion of Mr. Justice Brown in Cleveland, C., C. & St. L. R. Co. v. Illinois, 177 U. S. 514, wherein a requirement that express trains intended only for through passengers should stop at every county seat, when accommodations were provided by local trains; was held to be unreasonable and invalid. Chicago, B. & Q. R. Co. v. Railroad Commission of Wisconsin, 237 U. S. 220.
A Texas statute (2 Sayles Tex. Civ. St., art. 4502) provided that, when the shipper made application in writing to a railroad company to supply a number of cars for the. shipment of freight, on the failure of the company to supply such cars within six days from the receipt of the application, it should forfeit to the party, applying $25 a car for each car they failed to furnish, and be liable for all damages the applicant might sustain, with a countervailing penalty for failure on the part of the shipper to take the cars when furnished. The only exemption provided was that the act “shall not apply in case of strikes or other public calamity.” In the opinion in Houston & T. C. R. Co. v. Mayes, 201 U. S. 321, the court said, by Mr. Justice Brown: “While there is much to be said in favor of lavra compelling railroads to furnish adequate facilities for the transportation of
“Although the statute in question may have been dictated by a due regard for the public interest of the cattle raisers of the state and may have been intended merely to secure promptness on the part of the railroad companies, in providing facilities for speedy transportation, we think that in its, practical operation it is likely to work a great injustice to the roads, and to impose heavy penalties for trivial, unintentional and accidental violations of its provisions, when no damage could actually have resulted to the shippers.”
“While railroad companies may be bound to furnish sufficient cars for their usual and ordinary traffic, cases will inevitably arise where, by reason of an unexpected turn in the market, a great public gathering, or an unforeseen rush of travel, a pressure upon the road for transportation facilities may arise, which good management and a desire to fulfil all its legal requirements cannot provide for, and against which the statute in question malíes no allowance.
“Although it may be admitted that the statute is not far from the line of proper police regulation, we think that suf
It is clearly shown that, unless further exceptions and exemptions are interpolated in the law, the operation of trains at the speed required by the statute would in many cases be impracticable, would operate to interfere with the operation of trains carrying mail, interstate commerce, and with the transportation of other freight. It is also in evidence that an enormous increase in the rates charged by defendant would be necessary in order to so adjust the whole transportation facilities of the railroad as to provide for accelerated service, in many instances requiring special trains consisting often of from one to a few cars of live stock. These are burdens which interfere with the' business of tranportation and violate defendant’s constitutional rights.
It is argued that, since this court has held that a statute is valid making a railroad company insurer of the safety of passengers, regardless of whether it was at fault for an accident which caused an injury, it must, hold that this statute is also proper legislation. The law as a matter of public policy exerts exceeding care to conserve human life and personal safety. Such an object is not to be'compared to the mere monetary loss which may occur by reason of delay in the carriage of live stock. Public safety is of supreme importance, and stringent measures, used to exert pressure upon carriers of passengers so that nothing less than the greatest care and diligence will be used by them in such carriage, are entirely justifiable. The statute under consideration is an exercise of police power, and it must be reasonable in order to be valid. The legislature has not the power to interfere in an arbitrary manner with the conduct of a business or occupation by a police regulation, unless the regulation bears some definite and reasonable relation to the public welfare, and to enforce it does not infringe upon constitutional rights. Each person is guar
Plaintiffs argue that the best answer to the contention that the railroad companies cannot comply with the law is the fact that the evidence shows that they are complying with it. Where this evidence is to be found in the record has not been pointed out, and we have not found it. Plaintiffs say that the court can take notice of the fact that few cases have been brought here on appeal. On the other hand, defendant says that a large number of claims are outstanding awaiting a decision upon these appeals. These statements are alike based on facts not in the record. The contention of plaintiffs is that, “so long as the aggregate business of transporting this class of property is adequate and profitable, the company cannot complain, and no claim or color of claim can be made, upon the evidence, that the Northwestern railroad company is not making money in the transportation of live stock in Nebraska,” and much is said in the briefs with regard to the profits that defendant is making, the dividends it is paying, and the amount of money it is investing. There is no evidence of this kind in the record, and, if the facts are as stated, they are not so public and notorious that the court can take judicial notice of them. Under the undisputed evidence, we conclude that the statute cannot be enforced without unduly interfering with the constitutional rights of this defendant. It is possible that wdth other railroads, better built and equipped, whose lines run through a richer territory, with fewer converging branch lines, or with heavier rails or double tracks, the difficulties shown here do not exist, and the act might be enforceable, but we cannot draw a line and say the act is enforceable as applied to one railroad and invalid as to another, or as to shipments in one direction and not to shipments in the other direction. The object and purpose of the law is wdthin the proper police powers of the state. The legislature is about to meet, and it is to be presumed
Reversed.