68 Minn. 216 | Minn. | 1897
This action was brought to recover damages for personal injuries to the plaintiff, a child alleged to be non sui juris, who had strayed upon the track of defendant’s road, and was there injured'by a passing train. The only negligence charged against the defendant was its failure to fence its road, as required by statute, at the place where the plaintiff strayed upon the track, and where he was injured, it being alleged that if the railway had been fenced at that point plaintiff would have been prevented from going upon it. A demurrer to the complaint was sustained upon the authority of Fitzgerald v. St. Paul, 29 Minn. 336, 13 N. W. 168, in which it was held that the statute requiring railroad companies to fence their roads
The writer, who is the only member of this court who was on the bench when the Fitzgerald case was decided, assumes his full share of responsibility for that decision, but subsequent reflection has convinced him that the court placed too narrow a construction upon the statute; that the views expressed in the dissent of the late chief justice G-ilflllan were correct; and that the decision of the court should be overruled. In this view all the present members of the court concur. In our opinion, the court failed to give due weight to the very broad language of the amendment of 1877 (GL S. 1894, §■ 2695) which was a complete substitute for section 4 of the prior act. It provides that if a railroad company fails or neglects to fence its road, and to maintain such fences, it "shall hereafter be liable for all damages sustained by any person in consequence of such failure or neglect.”
As was said by the late chief justice, the duty created by the statute is absolute, and, as we have decided, it is ^not á mere fence law, but a police regulation designed for the benefit of the public. It may be conceded that, in an action for a neglect of duty, it is not enough for the plaintiff to show that the defendant neglected a duty imposed by statute, and that he would not have been injured if the duty had been performed, but that he must also show that the duty was imposed for his benefit, or was one which the defendant owed to him for his security. But the question for whose benefit or protection a statutory duty was imposed depends on the purview of the legislature in the particular statute, and the language which they have there employed. From the fact that the dangers from leaving a railroad unfenced most frequently arise from domestic animals straying on the track, and most of the decided cases involved that state of facts, it is very natural for us to become impressed with the idea that such statutes were designed merely to guard against the dangers resulting from such animals getting upon the railroad track.
But in view of the very general and sweeping language of the statute, in connection with the fact that it is confessedly a police regulation for the protection of the public, it is not for courts to speculate
It is suggested that as the decision in the Fitzgerald case has stood unchallenged for 15 years, during which the legislature has not, by amending the statute, expressed any dissatisfaction with the construction which this court had placed upon it, therefore it ought not now to be overruled, even although erroneous. The decision is not a rule of property. Neither can railway companies claim to have acquired any right, either legal or moral, under it, for it did not repeal the statute, nor relieve them from the duty of fencing their roads. The fact that the legislature has not amended the statute is not entitled to much weight. Cases where young infants are injured by straying upon an unfenced railroad track are comparatively rare, and, until such a case does arise, no one is likely to look into the matter or call the attention of the legislature to the state of the law on the subject.
Order reversed.