O'Bannon v. Louisville, Cincinnati & Lexington Railroad, 71 Ky. 348

O'Bannon v. Louisville, Cincinnati & Lexington Railroad

71 Ky. 348 | Ky. Ct. App. | 1871

CHIEF JUSTICE PRYOR

delivered the opinion oe the court.

The appellant, John W. O’Bannon, filed his action in the Jefferson Court of Common Pleas, alleging that the appellee with its trains carelessly and negligently ran over and killed the horse of the appellant, of the value of twelve hundred dollars, etc. The appellee answered, denying the allegations of appellant’s petition, and further alleging that appellant’s cause of action, if any he had, accrued more than six months previous to the filing of his petition. The law and facts were submitted to the court, and a judgment rendered against the appellant for costs, etc., and from which judgment he has appealed. The appellant insists that the seventh section of the act of the legislature, approved February 23, 1856, entitled “An act to amend the charter of the Louisville & Frankfort Railroad Company,” by which “actions for injuries to stock and other property on said road by the company or its agents, must be brought within six months after such injury,” etc., is unconstitutional, and this is the only question of any importance presented in the record.

At common law the appellee was not liable for injuries committed by its trains upon stosk straying upon its road, unless the injuries were the result of willful and reckless negligence on the- part of the company or those in its employ. This court in the case of the Louisville & Frankfort Railroad *351Company v. Ballard (2 Metcalfe, 183), in determining the common law liability of the railroad company for killing Ballard’s horse, adjudged that before the plaintiff could recover it must appear that the killing was caused by the wmnton and reckless negligence of the company or its agents. The petition in the case, supra, alleged that the horse of Ballard had been willfully, wantonly,-and recklessly run over by the cars of the company, and the case was regarded in the court below, as well as in this court, as a common law proceeding, and that no liability existed upon the part of the company in the absence of the proof of willful and reckless negligence on the part of the company. The sixth section of the act of 1856 in reference to this railroad company makes it liable for all damages done to stock or other property injured or killed by its locomotives or trains of cars running on its road, when the same is done by its carelessness, or the carelessness of its agents or employees. The allegations of plaintiff’s petition are sufficient to constitute a cause of action by reason of this statute only, and the liability of the appellee in this case, if any exists, rests altogether upon its provisions. The law is changed by this enactment, and a less degree of negligence will make appellee responsible than required ■ by the rules of the common law.

The legislature, in creating this corporation and during its existence, had the undoubted right to increase or lessen the liability of the company in regard to injuries to stock committed upon'its road by the company or its agents. The appellant relies alone for a recovery by reason of the liability on the part of the appellee created by this statute, for if the common law rule is made to apply the petition itself is defective, and there is no proof whatever to sustain a cause of action based upon the willful and reckless negligence of the parties.

Assuming then that under this statute the appellee is *352liable for the carelessness of its agents in injuring appellant’s horse, and that the present action is to be regulated by its provisions, this same statute changing' the common law liability of the company also enacts the statute of limitation as applicable to such cases, and requires that the action shall be brought within six months from the time the injury was committed. If the legislature has the constitutional right to increase by this enactment the liability of the company, it certainly has the power to say how long this liability should continue, and if one part of the act is unconstitutional the other is also; and to determine it unconstitutional would be in effect deciding that the appellant has no cause of action, as it can not exist independently of this statute. We are unable to perceive how this statute is in violation of or within the inhibition of the first section of the bill of rights. (1 Revised Statutes, page 151.)

In one point of view exclusive and separate rights or privileges necessarily belong to all corporations. A railroad company by paying the owner of the land and the damages he may sustain obtains the right of way over it. The right of way over streets for railway purposes, the powers pertaining to banking corporations, turnpike road companies, and all powers peculiar and incidental to corporations, may be granted by the legislature and exercised by the corporation, and are not, as has often been decided, inhibited by the constitution; nor is the act in violation of that provision of the constitution reciting “ that no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title.” ¡

The Louisville & Frankfort Railroad Company is the subject of this legislation, and the act is entitled “An act to amend the charter of the Louisville & Frankfort Railroad Company.” This act relates to but one subject, and that is clearly expressed in the title, and the legislation under it is *353in reference to the subject-matter of the title, and has a direct connection with it. Eeference is made to the case of the Louisville & Oldham Turnpike Road Company v. Ballard, 2 Met. 167, and Phillips v. Cincinnati & Covington Bridge Company, 2 Metcalfe, 220, and the authorities there cited, as sustaining this, view of the question presented. It is also argued that a general statute is not repealed by a local or private act unless such intention is clearly expressed.

In the statute of limitations, article 3, section 2, 2 Eevised Statutes, page 127, the limitation is five years, “when no other time is fixed by the statute creating the liability.” In Weir v. Bush, 4 Littell, 434, this court say “ that in every case of corporations created by statute, so far as the statute directs and provides, it must rule.” In this case the liability and limitation are both defined by the statute,-and the act itself manifests dearly the intention of the legislature, and that is, that so far as the limitation of the liability of the company is' concerned it is regulated by the act of February, 1856.

We perceive no error in the record prejudicial to the appellant, and the judgment of the court below is now affirmed.