5 Wyo. 430 | Wyo. | 1895
This is an action for damages for the killing of a cow by the locomotives and cars of defendants.. The petition charges that “the said defendants, by their agents and servants, not regarding their duty in that respect, so'carelessly and negligently ran and managed said locomotives and cars that the same ran against and over said cow of the plaintiff and killed the same, to his great damage,” etc. A jury was waived by the parties and a trial had by the court. The court reserves two important and difficult questions arising in the cause for decision by this court.
There is a motion by plaintiff to withdraw the papers in this cause from the files of this court because there was no judgment rendered in the district court on the evidence and the findings of that court, and the pleadings “do not join issue on the constitutionality of the statutes of Wyoming reserved and certified by the court,” and final judgment cannot be given until a new trial is had in the district court.
This motion is overruled. The reservation of important and difficult questions by the district courts for decisionqby this court is not premature on account of the reservation being made before judgment. Neither is it necessary that any issue be joined in the. pleadings on the constitutionality of a statute in order to raise the question of its constitutionality.
The questions reserved for decision are:
“First. Are the defendants, or either of them, liable for the killing of said cow without reference to the question of negligence?
*433 “Second. Is the statute of Wyoming in relation'to the killing of live stock by engines and cars unconstitutional to the extent that it renders the railway company operating such engines and cars liable for stock killed by the same in the absence of negligence?”
To the first question we answer no, and to the second, such statutes are unconstitutional to the extent specified.
The principles upon which such statutes are . held to be unconstitutional have been so often discussed that a hew consideration of them in this case would be unprofitable and tedious. The following are some of the authorities: Railroad Co. v. Lackey, 78 Ill., 55; Jensen v. U. P. Ry. Co., 6 Utah, 253; D. & R. G. Ry. Co. v. Outcalt, 2 Colo. App., 395; Parsons v. Russell, 11 Mich., 113; Taylor v. Porter, 4 Hill, 140; Zeigler v. Railroad Co., 58 Ala., 595; Oregon Ry. Co. v. Smalley, 23 Pac., 1008; Atchison Railroad Co. v. Batty, 6 Neb., 37.