72 Miss. 491 | Miss. | 1894
delivered the opinion of the court.
The requiring a railroad corporation, incorporated before or after the act containing the requirements is passed, to construct and maintain ‘ ‘proper stock gaps and cattle guards, ” is a perfectly legitimate exercise of the police power of the state.
Whether the same rule applies to farm crossings or not is immaterial here, because appellant’s road was not constructed till A.D. 1886, and the same provision, both as to cattle guards and farm crossings, found in § 3561, code 1892, is found in Laws 1884, p. 42.
On the cross appeal, cross appellants present two questions: First, whether the charge is correct wherein the court informed the jury that, if there should be a failure to construct and maintain “proper cattle guards,” the penalty of $250 could be recovered; or, for a failure to construct and maintain necessary crossings for plantation roads, the penalty could be recovered; but that, although there might be a failure to construct and maintain both ‘ ‘ proper cattle guards ’ ’ and ‘' suitable and convenient crossings for necessary plantation roads, ’ ’ whether one or more of each, provided all such cattle guards and crossings for plantation roads were on one tract of inclosed land, there could only be one penalty of $250 recovered. The language
The fact that the farm crossing was from land owned in fee to land used by appellees as tenants at will makes no difference. Section 3561 does not characterize the necessary title.
The second question presented by the cross appeal is as to the action of the court in denying plaintiff below the right to recover actual damages sustained by reason of cattle having gotten through a defective cattle guard and injured his crops. The cattle guards, in this case, were not constructed over the whole width of the right of way of appellant, but were merely pits under the roadbed, to which adjoining owners of land joined their fences. Testimony was introduced, through Moss and other witnesses, for defendant below, which, in part, went to show the actual condition of the cattle guards at the time of the injury complained of, and part of which consisted of the opinions of such witnesses as to how cattle guards should be constructed. For the first purpose the testimony was competent; for the second, incompetent. Railroad Co. v. Edmonds, 7 Am. & Eng. R. R. Cas., 547; Railroad Co. v. Ritz, 19 Am. & Eng. R. R. Cas., 611; Smead v. Railroad Co., 23 Am. & Eng. R. R. Cas., 241; 1 Rorer on Railroads, p. 643; 2 Rorer on Railroads, p. 1407, note 2. As said by the court in Rita's Case, supra, ‘ ‘ a j ury, coming as it does from the body of the people, many of whom are necessarily familiar with the habits of domestic animals, and with what is necessary to restrain them, is probably more capable of determining whether a cattle guard is proper and sufficient to prevent stock from crossing it than the man who is experienced only in building cattle guards. ’ ’ Cattle guards must be effectual to keep cattle from the track. Railway Co. v. Porter, 20 Am. & Eng. R. R. Cas., note at p. 448, with authorities. In Heskett
The theory of the court below in refusing to allow proof of actual damages must have been either that it was not competent to join in the same declaration a count for the penalty provided by § 3561, and one for actual damages, or that the penalty was in lieu of actual damages. Certainly in our state, where forms of action are abolished, at least in a case like this,
As to the second point, we have had more trouble. It is true that the railroad was not bound, in the absence of statute, to construct and maintain cattle guards, or for damage resulting from not constructing and maintaining them. Dixon's Case, 61 Miss., 119. But, ordinarily, where the statute does not require the company to fence its road, one of the elements of damage awarded the landowner is the amount it would cost him to erect a fence, where the railroad runs through inclosed land. Now, where the statute, as here, does not require the railroad to fence its track, but to construct and maintain cattle guards at the points of entrance upon and exit from inclosed land, the cattle guards are meant to stand in lieu of the fence, the landowner fencing to the cattle, guards. And in such case, as in this case, the landowner is not awarded an amount for fencing, in 'the condemnation proceedings, and the railroad is exempted from liability arising from the absence of a fence, on the theory that the railroad will construct and maintain proper cattle guards; and hence, if it shall fail to construct and maintain cattle guards, as a result of which cattle get through and damage the crops of the landowner, the railroad fails in the duty imposed by law, and upon the perfect compliance with which duty only it is exempt from liability for such damage, and, by such failure, becomes responsible for such damages. The damages awarded in the condemnation proceedings are exclusive if the railroad, in the case stated, shall construct and maintain proper cattle guards; otherwise, the landowner may recover for such actual damages. As said
We think the penalty, however, is a continuing one in this sense, that, though only one penalty of $250 can be recovered for the failure to construct and maintain proper cattle guards, no matter how many on one tract of inclosed land, up to the time of the first suit for such penalty, yet, such penalty may be recovered as often thereafter as other such similar instances of failure to construct and maintain proper cattle guards shall be shown after such suit. Railroad Co. v. Gill, 11 L. Rep., Annotated, p. 452. Parks’ Case, 13 Lea (Tenn.), 1, is by a vided court, Freeman, J., delivering, we think, the sound view. The railroad company, in other words, if, after one successful suit, it fails still to construct and maintain proper cattle
These views sufficiently indicate the principles governing the new trial. This view in no way conflicts with the general rule that, where the statute gives a new right, and provides the remedy, such remedy is exclusive. That doctrine does not apply in the particular case at bar.
The judgment is affirmed on the direct appeal, but is reversed on the cross appeal, and the ccrnse remanded as to the cross ap-pella/nts claim for actual damages. 80 ordered.