58 Ala. 594 (Ala. 1877), Zeigler v. South & N.A.R. Co.

Citation:58 Ala. 594
Opinion Judge:STONE, J.
Party Name:Zeigler v. South & North Ala. R. R. Company.
Attorney:H. C. BULLOCK, for appellant. RICE, JONES & WILEY, contra. No briefs came to Reporter.
Court:Supreme Court of Alabama

Page 594

58 Ala. 594 (Ala. 1877)

Zeigler

v.

South & North Ala. R. R. Company.

Supreme Court of Alabama

December Term, 1877

Action to Recover Damages for Stock Killed.

APPEAL from the Circuit Court of Elmore.

Tried before the Hon. JAMES Q. SMITH.

This was an action brought on the 25th of September, 1877, by S. B. Zeigler, the appellant, against the South & North Alabama Railroad Company-- a corporation chartered under an act of the legislature approved February the 15th, 1854--to recover $50.06 damages, as the complainant alleges, "for killing a yearling calf, the property of plaintiff (appellant), near Zeigler's crossing on defendant's railroad in said county, by running over or striking said yearling, by a locomotive or engine, &c., in employ of said company, on the 27th day of May, 1877." The defendant's counsel demurred, in short, by consent, to the complaint, and assigned as grounds of demurrer: 1st. It is not alleged that the killing of the yearling was occasioned by any default, negligence or omission of duty on the part of defendant, its servants, agents, or employees. 2d. The complaint does not show that defendant, its servants, agents, or employees, were guilty of any negligence or fault, or that said killing was occasioned by any fault, negligence, or failure of duty on part of defendant, its servants, agents, or employees. 3d. The act to define and regulate the responsibility of railroads for damages to live stock, or cattle of any kind, approved Feb. 3d, 1877, upon which said complaint is based, is unconstitutional and void. 4th. Said act impairs the franchise of defendant, given by its charter, and is therefore void.

The demurrer was sustained, and leave given to amend the complaint so as to show that the cause of action arose and was occasioned by reason of defendant's negligence. Issue was joined upon the amended complaint.

The case was submitted to the jury upon an agreed statement of the facts which, from the view taken of the case, need not be noted.

The defendant's counsel requested the court, in writing, to give the following charges: 1st. The act to define and regulate the responsibility of railroads for damages to live stock, or cattle of any kind, approved February 3d, 1877, is unconstitutional and void. 2d. Said act impairs the franchise granted to defendant by its charter, and is, therefore, violative of the Constitution of the United States, and void; which charges the court gave, and plaintiff excepted.

The ruling of the court in sustaining the demurrer, and giving said charges, is now assigned as error.

H. C. BULLOCK, for appellant.

RICE, JONES & WILEY, contra.

No briefs came to Reporter.

STONE, J.

1. In pronouncing on the constitutionality of an act of the legislature, the court necessarily passes judgment on the legality of an act which has received the sanction of a co-ordinate department of the government. Hence, the courts approach such inquiry with a due sense of its magnitute and solemnity, and indulge the presumption that the enactment in question is constitutional, until clearly convinced to the contrary.--See Sadler v. Langham, 36 Ala. 311.

2. The only question of importance presented by this record, arises on the constitutionality vel non of the first section of the act "To define and regulate the responsibility of railroads for damage to live stock or cattle of any kind," approved February 3, 1877.--Pamph. Acts, 54. That section enacts, "That from and after the passage of this act, all corporations, person or persons, owning or controlling any railroad in this State, shall be liable for all damages to live stock, or cattle of any kind, caused by locomotives or railroad cars." This statute declares that railroad corporations shall be liable, and make compensation to the owner, for all damages to live stock caused by their locomotives or trains, without any reference to the skill or diligence with which the train is operated. It results that no matter what care, prudence, watchfulness and skilled knowledge those having charge of a train may employ, still, if damage to live stock be caused by the train, the railroad corporation is responsible, unless the person owning such live stock contribute to the injury; but permitting live stock to run at large, shall not be considered as contributing to such injury.--Section 3 of the act. It is obvious that under this statute, the highest diligence could not avoid frequent injuries to live stock, for which the...

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