Fleming v. St. Paul & Duluth Railroad Company
| Decision Date | 24 August 1880 |
| Citation | 6 N.W. 448,27 Minn. 111 |
| Parties | Michael Fleming, Administrator, v. St. Paul & Duluth Railroad Company |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Ramsey county, Wilkin, J., presiding, refusing a new trial.
Order affirmed.
Davis O'Brien & Wilson, for appellant.
James Smith, Jr., for respondent.
This is an action for the recovery of damages for the defendant's negligence in occasioning the death of plaintiff's intestate, who was a fireman in defendant's employ. The locomotive upon which he was at work was thrown from the railway track by running over a cow which had come upon the track at a place where the road had never been fenced, and he was thereby killed, in October 1877. The only act of negligence claimed is defendant's failure to have its road fenced "at or near the place of the accident." It was admitted that the defendant's road was not and never had been fenced in the vicinity of the accident; that both defendant and the intestate were aware of this fact for a long time before the latter was killed; and that the intestate had been engaged on the road as a fireman for more than four years. Upon this state of facts, the action was dismissed by the district court, upon defendant's motion.
As is admitted by defendant's counsel, the charter and amendments under which the defendant exists and acts, contain no requirements as to fencing. The defendant and the companies to whose franchises it has succeeded, were not embraced in Laws 1872, c. 25, § 4, and therefore do not come within the case of Devine v. St Paul & Sioux City R. Co., 22 Minn. 8. To the defendant, then, Laws 1876, c. 24, §§ 1-3, (which is a re-enactment of the act of 1872,) are applicable, as is also the amendment of section 4, found in Laws 1877, c. 73. These acts now stand in Gen. St. 1878, c. 34, as sections 54 to 57, inclusive. Section 54 requires that all railroad companies in this state shall, within six months from and after the passage of this act, (March, 1876,) build, or cause to be built, good and sufficient cattle-guards at all wagon crossings, and good and substantial fences on each side of such road. Section 55 makes all railroad companies liable for domestic animals killed or injured by their negligence, and declares a failure to build and maintain cattleguards and fences, as before provided, to be an act of negligence. Section 56 regulates the recovery of costs to be paid in actions against such companies for killing or injuring domestic animals. Section 57, which is the amendment of 1877, provides that "any company or corporation operating a line of railroad in this state, and which company or corporation has failed or neglected to fence said road, and to erect crossings and cattle-guards, and maintain such fences, crossings and cattle-guards, shall hereafter be liable for all damages sustained by any person in consequence of such failure or neglect."
We are of opinion that the latter portion of section 55, declaring a failure to build and maintain cattle-guards and fences an act of negligence, has reference only to the case of killing or injuring domestic animals. But the effect of section 57 is to make failure to fence, etc., negligence per se, and to make the company operating the road liable for all damages resulting therefrom. The liability is not limited to one for damages to domestic animals, but it is a liability for all damages, to person or property, which are sustained by any person in consequence of such failure or neglect. Gillam v. Sioux City & St. Paul R Co., 26 Minn. 268, 3 N.W. 353. If a car should be thrown from the track by running upon some domestic animal, which had come upon the track in consequence of the want of a proper fence, and a passenger should be injured thereby, no reason is perceived why the company operating the road would not be liable under these provisions of statute. The contract of a common carrier with a passenger is to use the greatest...
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