29 P. 1031 (Colo.App. 1892), Union P. Ry. Co. v. Arthur

Citation:29 P. 1031, 2 Colo.App. 159
Opinion Judge:REED, J.
Party Name:UNION PAC. RY. CO. v. ARTHUR.
Attorney:Teller & Orahood, for appellant.
Case Date:May 09, 1892
Court:Court of Appeals of Colorado

Page 1031

29 P. 1031 (Colo.App. 1892)

2 Colo.App. 159

UNION PAC. RY. CO.

v.

ARTHUR.

Court of Appeals of Colorado

May 9, 1892

Appeal from district court, Park county; JOHN CAMPBELL, Judge.

Action by Edward P. Arthur against the Union Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Teller & Orahood, for appellant.

REED, J.

Appellee brought suit for damages caused by fire alleged [2 Colo.App. 160] to have been set out by an engine of appellant, resulting in the destruction of grass and hay in the stack on the land of appellee through which the road was operated. The statute under which the action was brought is as follows, (Gen.St. § 2798, p. 812:) "That every railroad company operating its line of road, or any part thereof, within the state, shall be liable for all damages by fire that is set out or caused by operating any such line of road, or any part thereof, and such damages may be recovered by the party damaged, by the proper action in any court of competent jurisdiction." The case was tried in the district court to a jury resulting in a verdict, and judgment against the appellant for $610, from which this appeal was prosecuted. The case is ably presented by the counsel of appellant, upon two propositions: First, that the statute "is unconstitutional and void, being in violation of the constitution of Colorado, *** and of the constitution of the United States, *** in that, in the form of a money judgment, it deprives persons of property without due process of law;" second, that "the plaintiff was guilty of contributory negligence in respect to the stack of hay burned." Some 20 pages of printed brief and carefully prepared argument are devoted to sustaining the first proposition. The case of Railway Co. v. De Busk, 12 Colo. 296, 20 P. 752, is ably reviewed and criticised. The argument was addressed to and filed in the same court, (the supreme court,) probably with the view of the overruling or modification of the decision in that case. The case having been transferred by the supreme court to this court, and the opinion in that case, clearly and unequivocally asserting the constitutionality of the law, remaining authoritative,

Page 1032

the question is not open to review in this court, and will not be discussed. The statute in question seems to have been based upon the theory that, with modern mechanical appliances and due...

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