18 Colo. 600 | Colo. | 1893
delivered the opinion of the court.
The dismissal of the action as shown by the record is assigned for error.
Upon consideration of defendant’s motion for a new trial, the court was of opinion that it should be allowed, and so announced its conclusion. Thereupon plaintiff declared that he elected to stand by his case as already made, and the district court then and there dismissed the action at plaintiff’s costs. The declaration of plaintiff was equivalent to saying that he could not prove any better case, and that he desired to obviate the necessity for another trial.
The bringing of the whole record to this court for review, including the bill of exceptions containing “ all the testimony offered, given or received on the trial,” clearly indicates that the intention of the parties was to treat the action of the court as though the court had dismissed the action or granted a nonsuit on the ground that plaintiff had failed to “ prove a sufficient case for the jury.” That such was the understanding and intention of plaintiff as well as the defendant, is confirmed by the fact that the assignments of error and argument of counsel in this court extend to the conclusions of the trial court upon the evidence, the pleadings, and the statutes upon which the action is founded.
Neither count of the complaint alleges any negligence on the part of the defendant company in respect to the killing of plaintiff’s horse. Prior to the acts of 1885, above cited, it was provided by statute that any railroad company operating its road within this state which should damage or kill any domestic animal by running any of its engines or cars over or against such animal should be liable to the owner of such animal for the damages thereby occasioned. The statute contained a fixed schedule of prices to be paid for certain kinds of animals so killed ; it also provided for an appraisement of the value of animals for which no schedule price was fixed ; but the appraisement was required to be made without any trial in court; and no proof of negligence on the part of the railway company was required in order to establish its liability.
By the act of 1885 an amendment to section 14 was added relating to fences, cattle guards and gateways, by which it
The first count of the complaint contains an averment to the effect that defendant’s railway line at the place where plaintiff’s horse was Jeilled was not then and there fenced with a good and lawful fence or with any fence whatever ; also, a further averment, that “ said railway line at the point thereon of said killing was not fenced as by said statute advised.” These averments were not sufficient under the act of 1885. According to the terms of that act, before plaintiff could claim that the defendant company owed him any duty in respect to fencing its railway, it was necessary for him to allege that he was the owner or holder of land adjacent to such railway, that he had requested defendant to fence its railroad, put in cattle guards and gateways, and that his horse was killed by reason of defendant’s neglect to comply with such request. The complaint does not contain such allegations. Moreover, according to the strict terms of the proviso, the company could not, even by fencing, putting in cattle guards and gateways, exempt itself from the unconditional liability otherwise imposed by the statute, except as against the party requesting the gateway to be made.
From the foregoing it follows, that in order to warrant a recovery for plaintiff under the first count of his complaint, as the statute existed when the first alleged cause of action arose, it must be held, unconditionally, that if any railroad company operating its road in this state should damage or kill a domestic animal by running its engines or cars over or against such animal, the railroad company would be liable therefor, irrespective of any act of negligence on the part of such company. If such statute were valid, then, according to its literal terms, plaintiff’s right to recover must be upheld.
“It is not a penal statute, but purely remedial in its nature ; and it is to be interpreted fairly and liberally, so as to secure to parties injured an indemnity from those who reap the advantages and profits arising from the use of a dangerous mode of locomotion, by means of which buildings and other property are destroyed.” Hart v. Railroad Co., 13 Metc. 99; Lyman v. B. & W. R. R. Co., 4 Cush. 288; Pratt v. Railroad Co., 42 Me. 579; Smith v. Railroad Co., 63 N. H. 25; Ross v. Railroad Co., 6 Allen, 90; Rodemacher v. Railway Co., 41 Iowa, 297.
It is true, that in the De Busk ease various decisions relating to stock-killing statutes were referred to and commented upon by way of analogy or illustration. Such references and comments are not to be taken as sustaining the validity of the stock-killing statute; the question of the validity of such statute was not then before the court. As was said in Johnson v. Bailey, 17 Colo. 69: “ It is not every remark in a judicial opinion that amounts to a judicial decision.” In
“ It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”
The decision in Railroad Company v. Henderson, 10 Colo. 1, cannot be considered as upholding the constitutionality of the stockdrilling statute. True, it was remarked in the opinion in that case that the statute was a cumulative remedy; but the real question decided was that the statute did not repeal or suspend the common law action for damages occasioned by negligence, and the judgment of the lower court was affirmed upon the ground that the evidence fairly tended to establish negligence. The first point of the syllabus in the Henderson case was therefore unwarranted by the decision. In Railroad Co. v. Lujan, 6 Colo. 338, the decision turned upon a question of pleading. It does not appear that the constitutionality of the stock-killing statute was challenged, either in the Lujan case or the Henderson case. The maxim, stare decisis, therefore, cannot be fairly invoked as sustaining the constitutionality of such statute.
The statute making every railroad company unconditionally liable in case it shall kill or damage a domestic animal by running its trains over or against such animal, stands on a footing quite different from the fire statute. Fire is a dangerous element, and according to the ancient common law the rule was, as stated in the De Busk case, that “ a person who makes a fire must see that it does no harm, and must answer for the damage, if it does any.” In the case of do
Since by the progress of invention vehicles propelled by steam and electricity have come into use as a means of transporting persons and property, the common law rule of liability on the ground of negligence has been applied to the operation of such vehicles, though a higher degree of diligence has been required on account of the greater liability to injury arising from the use of a more dangerous motive power. But we are not aware that it has ever been held, as a common law rule, that steam or electric railway companies, lawfully operating their trains, are liable for damages thereby occasioned, in the absence of negligence. By virtue of statutes, however, railway companies have frequently been required to provide additional safeguards against accidents and injuries to persons and property from the operation of their trains; these requirements have been upheld as valid police regulations; and omissions to comply therewith have been held to constitute sufficient ground of liability. For example: It has been held that a statute requiring a railway company to fence its line of railway is a valid police regulation ; and in states where such statutes have been adopted, railway companies have been held-liable for injuries done to domestic animals where the injury is shown to have been occasioned by the neglect of the company to fence its railway. The element'of neglect is the basis of liability in such cases. Perhaps the same rule may apply where the statute gives railway companies the option of fencing their roads on pain of being held liable for injuries caused to animals through neglect to avail themselves of the opportunity of fencing. Hayes v. M. C. R. R. Co., 111 U. S. 228; Mo. Pacific Ry.
The power of the courts to declare legislative acts unconstitutional should be exercised with that delicacy and consideration which are always due to a co-ordinate department of the government. So long as a legislative act is within the sphere of legislative power, that is, so long as it is not an encroachment upon the province of some other department of the government, it will be upheld, unless clearly in conflict with some provision of the constitution of the state or nation, or in violation of some private right thereby secured. The conflict between the legislative act and some specific provision of the fundamental law must, in general, be clearly apparent, or the act will not be deemed unconstitutional. That a statute may, in the opinion of the court, be against the spirit of the constitution, or against the policy of the government, is not sufficient to warrant the court in declaring it unconstitutional. The courts cannot arrest unwise or oppressive acts of legislation so long as such acts are within constitutional bounds. Cooley on Constitutional Limitations (6th ed.), chap. 7.
The statute in question was obviously intended to be remedial as well as penal. Sutherland on Stats., secs. 208, 359. The statute cannot be sustained upon the ground that it is penal; it lacks an essential element of a penal statute, in that it permits the penalty to be visited upon a party not guilty of doing anything prohibited, or of violating any duty imposed by law. Potter’s Dwarris, 74. The statute cannot be classed
It is true, the statute says, that “ no railroad company shall at any time be required to pay more than the market value of any animal killed or damaged; ” but nowhere in the statute is there any provision for an ascertainment of such value by evidence or by the usual mode of hearing and trial, or by any mode of actual trial. The statute not only makes a railroad company unconditionally liable for any domestic animal it majr kill or damage, but it deprives the company of the mode of trial afforded to other litigants in like cases. By the terms of the statute, when the value of an animal is fixed by the schedule neither party can vary the same; in the appraisement of other animals neither party can be heard by witnesses or counsel. This would seem to bear equally against both parties; but it does not. The remedy of the statute being cumulative, the owner of animals killed or damaged may resort to the statute, or he may rely upon his common law action, as was held in the Henderson Case, Sutherland, sec. 399. But when the owner resorts to the statute, there is no alternative for the railroad company, if the statute be upheld. In these respects the statute denies to railroad companies “ the equal protection of the laws; ” it provides that they may be subjected to liability and to a judgment without opportunity for hearing or trial according to “ the law of the land,” and thus, they may be deprived of their property “ with-'
In this connection the language of Mr. Webster is most appropriate : “ By the law of the land is most clearly intended the general law; a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial.” Constitution U. S., art. 14; Constitution Colo., art. 2, sec. 25; Cooley’s Const. Lim. (6th ed.) 431; East Kingston v. Towle, 48 N. H. 65; County of San Mateo v. Southern Pac. R. R. Co., 8 Am. & Eng. R. R. Cases, 1; D. & R. G. Ry. Co. v. Outcalt, 2 Colo. Ct. of App. 395; Graves v. North. Pac. R. R. Co., 5 Montana, 556; Dacres v. Oregon R. & N. Co., 20 Pac. Rep. 601.
Our conclusion is, that while the reason given for the dismissal of the action by the district court was not warranted, nevertheless, under the law as it then existed, no valid judgment could have been rendered upon the pleadings, and, therefore, the judgment of dismissal must be affirmed.
Affirmed.