211 P. 566 | Ariz. | 1922
Lead Opinion
The plaintiff, appellee, brings this action against the defendant, appellant, to recover damages for the killing of three head of livestock by defendant’s railroad train. The jury returned a verdict for plaintiff upon which judgment was entered. Appellant’s first assignment of error challenges the sufficiency of the complaint, the trial court having overruled his general demurrer. The complaint alleges, substantially, the killing of the
“occasioned by tbe negligent manner in which the servants and employees of defendant maintained the fences along said line of railroad; that the defendant permitted said fences inclosing said railroad track to become dilapidated and torn down, by reason of which plaintiff’s cattle were permitted to stray upon the tracks and right of way of defendant.”
This sufficiently states a cause of action against the defendant for the killing of livestock under paragraph 3779, Revised Statutes of 1913. It is not necessary to set forth the precise location of the defective fence; neither is it necessary, as urged by appellant, to allege expresses verbia that such fence or other barrier was located at a place where the statute permits a fence or other barrier to be maintained, because the failure to maintain a good and sufficient fence at any other point would not be negligence, and proof of such failure would not support the allegation of the complaint. The allegation of negligence in the maintenance of the fence, coupled with the allegation of the killing of the stock by reason thereof, is a sufficient charge of failure to maintain the fence at a point where the statute permits a fence to be maintained. The demurrer to the complaint was properly overruled.
Appellant’s second assignment of error is the refusal of the -trial court to grant his motion for an instructed verdict at the close of all the evidence, on the ground that the evidence does not support the allegations of the complaint. The evidence shows that the stock came upon the right of way from plaintiff’s pasture through a gap in the right of way fence, where it was torn down for about eig’hty rods. Some of them later on got into the field on the opposite side of the track belonging to one H. R. Nelson, who,
“In the morning before the killing of these animals they were, some of them, in my field, and some of them on the right of way. I gathered them all up and drove them out on the road. ... I drove them all out of the right of way and all out of my pasture through my corral into the highway, . . . fifteen or twenty head.”
Shortly thereafter the stock went on to the premises of one Eliza R. Johns, across the highway from the Nelson place. Mrs. Johns, seeing them in her inelosure, drove them back into the highway. From the Johns place they passed directly along the highway and on to the railroad crossing, where three of their number were struck and killed by defendant’s train. There is no dispute about the facts presented by the foregoing statement of the evidence, and if they do not support the judgment, it must be .reversed.
One line of appellant’s argument upon this assignment of error is directed to the proposition that, as the agency of third parties over which he had no control intervened, the failure to fence could not have been the proximate cause of the killing of the livestock. Appellee’s answer to that argument is that as such third parties were acting within their legal rights in driving the stock from their respective premises, their acts in so doing could not operate as an intervening efficient cause. The conclusion which we have reached upon the whole case, however, disposes of that question; for, even if the failure to fence were the proximate cause of the killing of the
This action is brought under paragraph 3779, Revised Statutes of 1913, which reads as follows:
“In all cases where the livestock of any person is injured or killed by locomotive or cars of [on] any portion of the line of any railroad company within this state unfenced by good and sufficient fence or other barrier sufficient to turn livestock, the company . . . shall be liable in damage therefor to the owner of such livestock, to be recovered in any court of competent jurisdiction within this state, unless it be shown on the trial of any action instituted for the recovery of such damages, that the owner of such livestock, his agent or servants, immediately contributed to such killing or injury. ...”
Public highway crossings are not within the purview of the statute as being “any portion of the line unfenced,” etc., public convenience and necessity requiring, of course, that such crossings be kept open. Bechdolt v. Grand Rapids & I. Ry. Co., 113 Ind. 343, 15 N. E. 686; Prickett v. Atchison, T. & S. F. R. Co., 33 Kan. 748, 7 Pac. 611; Corcoran v. Wabash R. Co., 138 Mo. App. 408, 122 S. W. 743.
Section 568 of the Penal Code of 1913 makes it a misdemeanor for any person willfully to obstruct any road by placing therein any impediment to transportation or travel thereupon. This is an express prohibition against the fencing in of highway crossings by railroad companies. So of course no action will lie for the killing or injury of livestock upon a public highway crossing because of the failure to maintain at such crossing “a good and sufficient fence or other barrier sufficient to turn livestock. ’ ’
Appellant argues, however, that as paragraph 3779 does not make it the duty of the railroád company to fence its line of road, but merely creates a liability for the killing and injury of livestock on unfenced portions of its line, and there being no other provision of statute creating the duty to fence, no action for negligence will lie, because there is no breach of a legal duty.
That the basis of the action under paragraph 3779 is negligence has already been declared by this court in Atchison etc. R. Co. v. Carrow, 18 Ariz. 83, 156 Pac. 961. Also in passing upon the same question in determining the constitutionality of an Iowa statute similar in nature to paragraph 3779, the Supreme Court of the United States said:
“As it is thus the duty of the railway company to keep its tracks free from animals, its neglect to do so, by adopting the most reasonable means for that purpose, the fencing of its roadway as indicated by the statute of Iowa, justly subjects it, as already stated, to punitive damages where injuries are committed by reason of such negligence.” Minneapolis Ry. Co. v. Beckwith, 129 U. S. 26, 32 L. Ed. 585, 9 Sup. Ct. Rep. 207 (see, also, Rose’s U. S. Notes).
“Any corporation operating a railway, that fails to fence the same against livestock running at large at all points where such right to fence exists, shall be liable to the owner of any such stock injured or killed by reason of the want of such fence for the value of the property or damage caused, unless the same was occasioned by the willful act. of the owner or his agent. . . .” (Code 1873, §1289.)
The basis of the action authorized by the statute is negligence, that is, the failure of the railroad company to perform a duty thereby imposed upon it. It cannot be denied that the maintenance of a good and sufficient fence or other barrier is an essential part of the duty thus imposed, and that if a failure to maintain such a fence or barrier has resulted in a violation of plaintiff’s rights, he is entitled to recover damages for injuries proximately resulting therefrom.
The question to be determined here, then, is whether or not the failure of the defendant to maintain a good and sufficient fence as disclosed by the evidence was a breach of a legal duty owing by defendant to plaintiff under the circumstances of the case, and therefore a violation of plaintiff’s rights. Before we can answer that question it is necessary to ascertain just what plaintiff’s rights are under the statute in question. His rights must be and are, of course, correlative to the duty imposed upon the railroad company, and the rights and duties of plaintiff and defendant depend upon the legislative intent, which is to be discovered from the interpretation or construction to be placed upon the statute.
The Arizona statute under consideration, unlike the Missouri statute, does not in express terms impose upon railroad companies the duty to fence their lines. The obligation arises only by implication from the imposition of the liability to pay damages. Sullivan v. Oregon Ry. & Nav. Co., 19 Or. 319, 24 Pac. 408. Being implied, it arises only from the necessity of the occasion to supply something which it is obvious was tacitly understood to be within the purview of the act' at the time of its passage. But it can rise no higher than the necessity. It exists as a necessary corollary to the liability to pay damages. The
Although the statute is in derogation of the common law we have given it the most liberal construction of which its terms are susceptible, as paragraph
Appellant presents additional assignments of error based upon the giving of certain instructions to the jury. The conclusion here reached disposes of such assignments as the instructions complained of were all predicated upon the erroneous assumption by the trial court that upon the facts disclosed by the evidence the plaintiff had a common-law remedy against the defendant for the breach of a statutory duty to maintain a good and sufficient fence.
The judgment of the trial court is reversed and the cause remanded, with directions to dismiss the complaint.
Concurrence Opinion
(Specially Concurring). — I concur in the result. The uncontradicted evidence is that the cattle, after going on the right of way through the gap in the fence, got safely off the right of way to the public highway, wandering thereon to the track where they were killed. The appellant’s negligence was therefore not the proximate cause of the killing of the cattle. The cattle had passed the right of way and the dangers thereon, and, having done so, a new chain of causes came into operation, too remote from that resulting from appellant’s negligence to be connected therewith in any fair or reasonable sequence.
With such parts of the opinion which hold that the appellant cannot be held liable for the injuring or killing of livestock in any other way than that contemplated by the statute, or on parts of the line which it is unlawful to fence, I am of course in accord.
“It cannot be denied that the maintenance of a good and sufficient fence or other barrier is an essential part of the duty thus imposed, and that, if a failure to maintain such a fence or barrier has resulted in a violation of plaintiff’s rights, he is entitled to recover damages for injuries proximately resulting therefrom, ’ ’
—and that a failure to observe these requirements was negligence. And, as I have tried to make clear, the killing of the cattle was not the proximate result of such negligence of appellant.