21 Fla. 669 | Fla. | 1886
delivered the opinion of the court:
This is an action brought by the appellee to recover of
At the common law, every entry upon another’s land (unless by the owner’s leave or in some particular cases •which it is unnecessary to mention,) was treated as an injury or wrong, for satiafaetiou of which an action of trespass would lie, the quantum of the satisfaction being determined by considering how far the offence was willful or indiscreet, and by estimating the value of the actual damage sustained. This law styled every unwarrantable entry on another’s soil a trespass by breaking his close, and the writ commanded the defendant to show cause wherefore he had broken it. In the eye of the law every man’s land was inclosed and set apart from his neighbors’s, either by a visible and material fence as one field is divided from another by a hedge, or by an ideal invisible boundary existing only in contemplation of the law as when one man’s land adjoins another’s in the same field. Every such entry or breach of a man’s close carried necessarily along with it some damage or other, for if no other special loss could be assigned, still the words of the writ itself specified one general damage, the treading down and bruising his herbage. A man was moreover answerable not only for his own trespass but that of his cattle also, for if by his negligent keeping they strayed upon the land of another (and much more if he permitted it or drove them on) and they there trod down his neighbor’s herbage or spoiled his corn or trees, this was a trespass for which the owner must, answer in damages; and the law gave the owner of the laird in such cases a double remedy by permitting him to distrain the cattle thus damage feasant till their owner should make him satisfaction, or else by leaving him to the common remedy of trespass quare vi et armis clausum, ¿fe. 1 Blackstone Comm., 208, 211.
So eaz’ly as the year 1823, at the second session "of the Legislative Council of the Territory, a statute regulating fences was enacted to take effeet fz’om and after the first day of the then ensuing May. After prescribing by its first section the dimensions of the fence, it provided, by section 2, that if any trespass or damage should be committed on any gaz’den, oz’chaz’d, plantation or settlement, not fenced or inclosed as prescribed, by the breaking in or straying of any cattle, horses, sheep, goats or swine, the owner thereof should not be liable to answer for or make good any damage or injury happening or committed by reason thereof; and further that in case any person should kill, maim or hurt any such stock so straying or bi’eaking into any such place or settlement not so fenced or inclosed, he should answer and make good to the owner of the stock all injury and damage sustained thereby; and, by section 3, imposing upon any pez’son not having such a lawful fence, a penalty for fixing in his inclosure any canes, stakes or anything that might hurt or kill such animal. In 1824 this act was amended in so far only as to make some changes in the requisites of a “ worm fence.” In 1885, a period subsequent however to the accruing of the alleged cause of action, azz act (chapter 3619) practically revising the above legislation was approved, the first sectiozi of which prescribes what shall be deemed a lawful fence, and the second and third sections of which are in effect a z’e-enactment of the second and third sections of the act of 1823. In 1871 it was made a misdemeanor, by chapter 1846, for one, not
In 1823, a statute, reciting that a practice hath hitherto prevailed of driving large quantities of neat cattle from the several adjoining States by citizens thereof, aiid that it was consistent with justice and good policy that all persons who^ enjoy the benefits and advantages of a State or Territory should contribute and share with the good people thereof the expense and labor of supporting and defending the-same, was enacted which taxed such cattle per capita, its provisions not applying to persons actually “ removing into ” the Territory and bringing their cattle with them ; (acts of 1823, p. 111,) and in 1835 it was made unlawful for a non-resident owner of cattle or stock to drive them upon lands within the Territory for purposes of grazing, and this upon penalty of forfeiture and sale. Duval Comp., 54, 60 McO’s. Dig., 50.
In 1828 an act was passed which punished by fine any one who should drive, entice away or remove any cattle from a pasturage or range, without leave of the owner of the cattle, and in 1829 it was modified so as to apply only to driving them more than five miles from the range or place where cattle most usually graze. Thomp. Dig., 136. And an act of 1832 punished any one who mllfully drove, removed or enticed away any cattle from a pasturage or range. Thomp. Dig., 507. And by an act of 1868, (p. 423, sees. 9 and 10, McC’s. Dig.,) it is declared unlawful to drive another’s cattle directly from their own range or more than five miles from the home of their owner without his permission. McC’s. Dig., 423.
In 1877 “ an act for the better protection of cattle in this State” was passed. It empowers each Board of County Commissioners to lay out the county into cattle districts,
The estray laws now in force, like the original enactment of 1823, define estrays and punish by fine, and subject to an action of damages, any one who vexatiously or maliciously takes up as an estray any animal named in the act contrary to its true intent and meaning. There has ■also been other legislation, needless to mention, in the interest of persons owning cattle on the range.
Nothing is clearer than that the purpose and effect of all this legislation were not only to change the common law and require of every landholder or other person that he should fence out his neighbor’s, and every one else’s stock, if he desired protection against damage from them, but also to establish and protect a right in resident owners •of stock for their cattle and other domestic animals to range and graze on all uninclosed lands free of charge, and without any liability for any damage resulting from their ■going upon or grazing on any lands whatsoever not inclosed by a lawful fence. No special interest is of much if any more moment to our State, and none elicited earlier legislative attention than stock raising.
Such being the policy of our laws as to live stock—a policy which makes them free commoners—the next inquiry is whether any special exception from or against it has been created in favor of railroad companies. The general railroad law (chapter 1987, approved February 19, 1874,) gives to every corporation formed under it the right.
There is no statute here which requires a railroad company to fence its track, and imposes on the company as a penalty for not doing so a liability for all stock killed or injured.
A corporation owning a railroad has certainly the right to own land and operate a railroad upon it, and to run its trains at such speed as its business requires and is consistent with the safety of passengers and freight, the condi
After the repeal of the 27th section alluded to, there was nothing left in the railroad act which required stock owners to keep up their stock as against railroad companies; and the acquisition by a railroad company of a piece of land, and its use by operating thereon a railroad, do not under the laws of this State impose upon a stock owner a legal duty to keep his stock up, or in other words deprive him of the right to turn out his stock to range as free commoners. The company has the right to cany on its business upon the land as did its predecessor in ownership his avocation, but with the same relation to the rights of the stock owner as to uninclosed lands. If cattle go upon the land pending the company’s ownership, they are not trespassers in the eyes of the law, nor were they when its predecessor held it. No change has been- made in this respect by the change of ownership. Alger vs. M. & M. R. R. Co., 10 Ia., 268; Simkins
The grant of a right to one is not to be presumed as intended to take from another class a right previously established either by law or custom in the latter’s favor. The repeal of section 27 removes the exception its enactment had made in favor of railroad companies as to stock legislation.
Whenever one of two persons having such rights claims that he has beeu damaged in his property by the other, and that he is entitled to have such damages made good, and the other denies such claim on the ground that what he did was in the exercise of his own right, the test of such right of recovery, in the absence of a willful intent to injure, is whether the one who has done the injury has, considering all the circumstances of the particular case, taken in the exercise of his own right that care which the law requires he shall take against injuring the other in his property. 3 0. St., 172. A failure to observe this care is called negligence; negligence is the basis of the injured party’s right to recover in such cases, and whether a railroad company is liable for killing or damaging stock by
Unless the statutes have changed the rule, or there is something in the very nature of such a killing or injury by a railroad train making the rule inapplicable, the declaration must allege and the proofs must show that the injury was occasioned by the company’s negligence, and. the burden of proof is on the plaintiff. Alger vs. R. R. Co., supra; Jacksonville Street R. R. Co. vs. Campbell, supra, 175.
If, under all the circumstances of a particular case, as shown by the testimony, it appears that the killing or injury could not have been avoided by the exercise of reasonable care on the part of the agents of the company operating the train, there can be no recovery. If, on the other hand, it is shown that had such agents exercised reasonable care under the circumstances surrounding them they could have avoided running against the stock and injuring it, but that they did not do so, the company is guilty of negligence and liable for the damage. R. R. Co. vs. Patton, supra ; Kerwhacker vs. R. R. Co., supra; Alger vs. M. & M. R. Co., 10 Ia., 268. If there is contributory negligence upon the part of the owner of the stock he cannot recover, but permitting them to go at large does not, of itself, though followed by their going on the track, constitute contributory negligence in him, or make them trespassers under our laws. 10 Ia., 268 ; S. C., 259 ; 43 Miss., 259.
Is it true that there is in the nature or necessary circumstances of every killing or injury of stock by railroad engiue or train something making it an exception from the general rule which requires of the plaintiff both an allegation and proof of negligence? In South Carolina, in Dan
The breaking of the axletree in the Christie case was itself prima facie evidence of negligence on the part of the owner of the coach. It was his duty to have axletrees sufficient for the purposes of his busiuess. The breaking under the circumstances was evidence that he fell short of this duty, and that the coa-ch was not then “ well built.” There is nothing- in the case intimating- that it is everunne
The nature of the South Carolina case and that before us does not properly assimilate to the four cases we have reviewed. PTo inherent defect is shown in anything relating to the road or train as was shown in the coach in Christie’s case. The fixed relation which buildings and fences bear to the track and to passing trains, and which. has enabled science and skill to provide those appliances which as a general rule prevent such escape of sparks as will set fire to and burn them has no counterpart in the uncertain and varying circumstances under which cattle may appear on a railroad track. To put the two classes of cases on a level we think it at least necessary to establish by evidence the locality'on the road where the collision occurred. These varying circumstances render it impossible to establish a rule like that in the Piggott and Ellis cases, except upon the false basis of assuming a fixed state of circumstances for something that is wholly uncertain in its nature. The law permits a train to be run upon its track as rapidly as its business requires, and is consistent with the safety of the passengers and the property it transports, without moderating its speed on account of the probability of
The reasoning in Danner’s case is exceptional. Where the burden is put by the pleadings upon the plaintiff, there is no rule of law that the defendant’s failure to produce witnesses upon trial, or his silence there as to what he may know, can be taken to make a prima facie case for the plaintiff. Where .the plaintiff’s evidence is insufficient the defendant may demur to it successfully. The fact that witnesses to an occurrence are in the employ of a railroad company imposes upon it no more duty to produce them or their evidence at the trial than their being employed by an individual would impose on him. The rules of evidence permitting proof by admissions—silence, where an act has been specifically charged in conversation against a defendant—has never been extended to a defendant preserving silence in court until a prima facie case has been made by plaintiff’s evidence on the trial. Under our rules of evidence by which, as a general rule, neither interest nor being a party to the record disqualifies from testifying, “ the
Independent of any legislation on the subject, we do not think that proof of the mere killing, independent of locality or some other circumstance which shows that it would not have resulted if reasonable care had been taken, or some omission of duty, as a failure to blow the whistle for the purpose of searing the cattle off, is prima facie evidence of negligence upon the part of the company. B. & M. R. R. vs. Wendt, 12 Neb., 76 ; Schiner vs. R. R. Co., 40 Iowa, 337; Bathje vs. R. R. Co., 26 Texas, 604; Walsh vs. R. R. Co., 8 Nevada, 110 ; R. R. Co. vs. Means, 14 Ind., 30; Mc-Kissock vs. R. R. Co., 73 Mo., 590 ; R. R. Co. vs. McMillan, 7 (Ohio) A. & E. R. R. Cases, 588 ; see also 19 A. & E. R. R. Cases, 458, note.
What legislation has taken place is now to be inquired into.
In the vear 1875, “ an act to provide a means for the collection of claims for cattle and other stock destroyed by railroads,” became a law without the approval of the Govern- or. It passed the Assembly February 18th, and the Senate on the 25th of the same month. Its first section enacts: “ That all railroad companies operating in this State shall be held liable for damages to cattle, horses or other stock by the ears or trains of such company or corporation, either by killing or maiming animals, and the amount of damages shall be established by affidavit of the owner or some other person acquainted with the stock so killed or maimed.” Its second section provides: “ That damages established as aforesaid may be sued out and judgment obtained in any court having jurisdiction of the amount so established in the same manner as other evidences of debt.”
If the purpose of this act was to create an absolute liability upon the part of railroads independent of any question of negligence, (which we are not satisfied can be done; Macon & Western R. R. Co. vs. Davis, 13 Ga., 68 ; Zeigler vs. R. R. Co., 58 Ala., 594,) then the title of the act is not sufficient to support this purpose, but is too constrained. It is confined by its words to providing means for collecting claims having at its passage a status in law, or similar ones to arise in the future, and excludes the idea of making that a claim which without it would not be one. Carr vs. Thomas, 18 Fla., 736 ; 13 Ga., 86.
If it be the plain meaning of the first and second sections that the affidavit provided for is to be taken as conclusive evidence of the damage or of the “ amount ” thereof, and that upon such affidavit as an evidence of debt, the action may be instituted and judgment obtained without right upon the company’s part to be heard as to negligence and the amount of damages, or as to either, then they do not provide due process of law and cannot stand. Cooley Cons. Dim., 432.
To establish, according to Webster, means to make stable or firm; to fix or set unalterably ; to settle or confirm ; to enact or decree by authority and for permanence; to decree; to enact; to ordain;—said of laws, regulations and the like; to settle or fix;—as anything wavering or doubtful or weak. Worcester’s definition is not materially different. The plain meaning of the language used in the first section is that the affidavit should fix, set unalterably, settle, make stable or firm the amount of the damages, and
After the most careful consideration we are capable of giving the subject, we have come to the conclusion that the meaning and purpose of the statute are to make the affidavit conclusive evidence of at least the amount of the damages, and that no other construction can be placed upon it without, ignoring the plain meaning of the language used, and constructing ourselves something which the statute does not sustain.
' The Legislature cannot thus create judgments, even as to the single element of the amount of the damage upon the basis of an ex-parte affidavit, nor as to such element and those of the killing or injury and negligence.
It is within the power of the Legislature to provide that
We think the demurrer to the declaration should have been sustained, and that the court erred in charging the jury as to the killing being made prima fade evidence •and in refusing the instructions numbered 2 and 7 requested by the defendant, but that it did not err in refusing the instruction numbered 2, as it uses the word willful, or in -refusing that numbered 4, nor that numbered 6, as it is too broad.
The judgment is reversed and the case will be remanded with directions to sustain the demurrer to the declaration, with leave to the plaintiff to amend the declaration and tfor further proceedings in accordance with this opinion.