Berens v. Chicago, M., St. P. & P. R. Co.

• Decision Date: 29 March 1963
• Docket Number: No. 10019,10019
• Citation: 80 S.D. 168,120 N.W.2d 565
• Parties: Richard BERENS, Plaintiff and Respondent, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, a railroad corporation, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 565

120 N.W.2d 565

80 S.D. 168

Richard BERENS, Plaintiff and Respondent, v. CHICAGO, MILWAUKEE, ST. PAUL AND PACIFIC RAILROAD COMPANY, a railroad corporation, Defendant and Appellant.

No. 10019.

Supreme Court of South Dakota.

March 29, 1963.

Dwight Campbell, Stanley R. Voas, Aberdeen, for defendant and appellant.

Agor, Bantz, Siegel & Barnett, Aberdeen, for plaintiff and respondent.

HOMEYER, Judge.

The constitutionality of certain railroad fencing statutes and the constitutionality of certain statutory rules of evidence pertaining to livestock killed or injured by a railroad due to failure to properly fence its right-of-way against livestock is the subject of this appeal. It is contended that these statutes are violative of the United States Constitution, Amendment Article 14, Sec. 1, and the South Dakota Constitution, Article VI, Sec. 18, and deny railroads equal protection of the laws. The thrust of appellant's argument is that when these statutes were originally enacted railroads had a virtual monopoly on passenger and freight transportation; that the court should take judicial notice that conditions have changed and that such monopoly no longer exists; that passenger transportation by rail has virtually disappeared and that railroads now transport less than one-half of the nation's freight. It is contended that motor carriers are not subject to the same statutory provisions and that as a result in the highly competitive field of transportation, there is unjust and unwarranted discrimination.

From stipulated facts it appears that respondent's 320-acre farm adjoins appellant's right-of-way; there is an 80-acre tract with buildings lying east of a north-south township road; the railroad right-of-way is the south boundary of this tract; on the north side of this 80-acre tract is a 20-acre pasture and the area between the pasture and the right-of-way is cropland. Respondent maintained a good permanent fence on all sides except the side abutting the railroad. At one time appellant maintained a good fence along this right-of-way, but it permitted the fence to go into disrepair and a portion was removed entirely. Respondent had an electric fence along the south side of his pasture area and during the night his cattle got through the electric fence, travelled across the cropland and onto appellant's right-of-way. Three cows were killed and one injured by appellant's train. The amount of the damages was stipulated to be $875.55. Appellant filed a motion to dismiss which was denied and the court entered judgment against appellant for the stipulated amount. The motion raises the constitutionality of the statutes hereinafter discussed. No other matters urged in the motion and assigned as error require discussion.

The railroad fencing statutes were first enacted in 1883, Chapter 57 of the Session Laws of that year, and have been retained in subsequent recodifications and now appear in substantially the same form in the following sections of the South Dakota Code of 1939:

SDC 52.0910. 'Whenever the owner of any tract of land abutting upon any line of railroad within this state shall desire to inclose any such tract of land for pasturage or farm purposes, and shall construct a good and sufficient fence about such tract on all sides except along the side abutting upon such railroad, it shall be the duty of such railroad company to construct a fence not less than four and one-half feet high, and if the owner inclose any such tract of land for pasturage or farm purposes with a woven wire fence with wires crossing each other close enough to keep sheep and hogs therein, it shall be the duty of such railroad company to construct a like fence along its right of way on the side of such tract so far as the same extends along the line of such railroad, and to maintain the same in good repair and condition until released therefrom by the owner of such tract, or until the owner of such tract shall have ceased to maintain in good repair and condition for the term of one year his portion of the fence around such inclosure.'

SDC 52.0911. 'Whenever the owner of any tract of land shall have completed his portion of the fence about such proposed inclosure, he shall give written notice of its completion to the railroad company upon whose line such tract is situated, by personal service upon the agent of such company at the station nearest the proposed inclosure, describing in such notice the situation of such tract and the number of acres to be inclosed, as near as may be, and the length of the fence required along the line of such railroad to complete the proposed inclosure.

'It shall be the duty of the railroad company to construct and complete its portion of such fence within sixty days after the service of such notice.'

SDC 52.0912. 'If any railroad company shall neglect or refuse to comply with any of the requirements of sections 52.0910 and 52.0911, it shall be lawful for the owner of such tract to construct or repair the fence along the line of such railroad, and the railroad company shall be liable to the owner thereof, to an amount not exceeding one dollar and twenty-five cents per rod, to be recovered in a civil action; and such railroad company shall be liable for all damages accruing by reason of such neglect or refusal.'

The general fencing evidentiary statute was enacted in 1907, Chapter 218, Session Laws of that year. The double damage provision was declared unconstitutional, Polt v. Chicago M. & St. P. Ry. Co., 1914, 26 S.D. 378, 128 N.W. 472, 232 U.S. 165, 34 S.Ct. 301, 58 L.Ed. 554; Halseth v. South Dakota Central Ry. Co., 1914, 34 S.D. 226, 147 N.W. 992. The same statute was subsequently re-enacted with the double damage provision deleted and now appears in the South Dakota Code of 1939 in he following form:

SDC 52.0943. 'Any corporation operating a railway and failing to properly fence the same against livestock and keep the same in repair and maintain proper and sufficient cattle guards at all points where the right to fence or maintain cattle guards exists, shall be liable to the owner of any stock killed or injured by reason of the want of such fence or cattle guard, for the full amount of the damage sustained by the owner on account thereof, unless it was occasioned by his act or that of his agent; and to recover the same it shall only be necessary for him to prove the loss of or injury to his property. No law of the state or any local or police regulation of any county, township, city, or town relating to the restraint of domestic animals, or in relation to the fences of farmers or landowners, shall be applicable to railway tracks unless specifically so stated in such laws and regulation.

'Upon depot grounds necessarily used by the public and the corporation, the operating of trains at a greater rate of speed than eight miles an hour where no fence is built shall be negligence, and shall render such corporation liable for all damages occasioned thereby in the same manner and to the same extent, as in cases where the right to fence exists.'

The prima facie evidence of negligence statute appears in Sec. 679, Civ.Proc.Dak.Rev.Code 1877, and was continued in later codes in substantially identical form and now reads as follows:

SDC 1960 Supp. 37.2302. 'The killing or injuring of livestock by such railroad corporation, its agents, or employees shall be prima facie evidence of the negligence of said corporation.'

Where the railroad has voluntarily constructed the right-of-way fence as required by SDC 52.0910, the giving of notice to construct is an idle act, and when it permits such fence to go into disrepair, it cannot rely on a failure to give notice as a bar to liability. Wold v. South Dakota Central Ry. Co., 23 S.D. 521, 122 N.W. 583.

Until now the constitutionality of the fencing statutes, SDC 52.0910-52.0912, despite their long history as a part of our substantive law has never been questioned and despite a mass of early decisions by this court on liability of railroads for injuries to livestock on their right-of-way. These statutes make it the positive duty of the railroad at its expense to construct and maintain a fence along the fourth side of an enclosure bordering its right-of-way when the landowner has at his expense constructed a good and sufficient fence on the other three sides. The statutes fix the standard of care and a failure to comply with the statutory duty constitutes negligence and liability can only be avoided by showing that the violation was excusable or justified. Albers v. Ottenbacher, S.D., 116 N.W.2d 529. We find nothing in the stipulated evidence to show justification or excuse for non-compliance. If these fencing statutes are constitutional, the judgment must be allowed to stand.

It does not require any lengthy citation of authority to show that in the exercise of their police power state legislatures have the power to pass laws requiring railroads to construct and maintain fences as a safety measure and for the good and welfare of the public, and courts have consistently so held. 16A C.J.S. Constitutional Law Sec. 641, p. 905; 44 Am.Jur., Railroads, Sec. 153, p. 368; Mo. Pac. R. Co. v. Humes, 115 U.S. 512, 6 S.Ct. 110, 29 L.Ed. 463; Union P. R. Co. v. Court of Industrial Relations, 115 Kan. 545, 224 P. 51; Mpls. & St. L. R. Co. v. Emmons, 149 U.S. 364, 13 S.Ct. 870, 37 L.Ed. 769; Mo. Pac. R. Co. v. Harrelson, 44 Kan. 253, 24 P. 465; Middaugh v. Chicago & N. W. R. Co., 114 Neb. 438, 208 N.W. 139. Appellant does not seriously challenge these holdings and admits that such statutes when originally enacted were constitutional, but vigorously maintains that conditions have changed since their enactment and that changed conditions have now made them unconstitutional. Because motor carriers do not have like obligations or restrictions, it is urged appellant is denied constitutional equality of protection under the law. It is also urged that railroads are subjected to...