Bielenberg v. Mont. Union Ry. Co.
Decision Date | 02 February 1889 |
Citation | 8 Mont. 271 |
Parties | BIELENBERG v. MONTANA UNION RY. CO. |
Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Silver Bow county.
Action by Charles P. H. Bielenberg against the Montana Union Railway Company, for damages for killing a horse, the property of plaintiff. Verdict and judgment for plaintiff for $250, and defendant appeals.
William H. De Witt, for appellant.
Knowles & Forbis, for respondent.
This action is for damages for the alleged negligent killing of plaintiff's horse by defendant, upon its railroad. The defendant appeals from the order denying a new trial. One of the alleged errors relied upon by appellant is the following instruction, given by the court at the request of respondent: “Under the laws of this territory, the killing being proved, or being admitted, as in this case, the negligence of the defendant must be presumed, and the burden of proving the exercise of due care devolves upon the defendant; and unless the defendant shows that it exercised reasonable care and caution to avoid the killing, then you will find for the plaintiff.” Section 713, p. 826, Comp. St., provides as follows: “Every railroad corporation or company operating any line of railroad or railway, or any branch thereof, within the limits of this territory, which shall damage or kill any horse *** by running any engine or engines, car or cars, over or against any such animal, shall be liable to the owner of such animal for the damages sustained by such owner by reason thereof.” It is conceded by counsel for respondent that this section, literally construed, is unconstitutional; and we would not pass upon the question if we were not of the opinion that the instruction complained of is erroneous, unless it can be held good under the statute, thus stating a rule more favorable to the appellant than the law requires.
There is an apparent conflict of authorities upon this question; but upon a careful investigation of the cases the conflict disappears, and few authorities can be found sustaning a statute similar to that which we are now considering. The leading case upon the subject is Thorpe v. Railroad Co., 27 Vt. 140, and this case has been followed in the case of Rodemacher v. Railroad Co., 41 Iowa, 302, which also cites Railroad Co. v. McClelland, 25 Ill. 143. These cases will serve to show the distinction which we think is to be made between the case under consideration and the majority of those cases which are usually cited as sustaining a doctrine contrary to the conclusion which we have reached upon this question. The statutes of Illinois and Vermont, which the courts of those states were considering, enacted that all railroads should erect and maintain sufficient fences along their tracks, and declared that all railroads failing to comply with that law should be liable for all damagesaccruing to the owners of live-stock killed or injured by such railroads. The supreme court of the United States, in a recent case, has decided that a law compelling railroads to fence their lands is not unconstitutional, holding that it is a police regulation. Railway Co. v. Beckwith, 9 Sup. Ct. Rep. 207. This doctrine had already been announced by many state courts. Bearing this in mind, we find that the Vermont and Illinois cases establish the rule that where a railroad company conducts its business in violation of the law, it shall be liable for all damages to stock, which damage is the result of such violation. Such statutes, therefore, merely affix a penalty to the violation of a duty imposed by a valid law of the land. That this distinction is recognized by the courts of Illinois is apparent from a later case in the supreme court of that state, ( Railroad Co. v. Lackey,) hereafter referred to in this opinion. There is no law in this territory which compels railroads to fence their lands, and in order to hold the literal provisions of this section constitutional, we must lay down the doctrine that the legislature can inflict a penalty upon one who is doing a lawful act in a lawful manner. We think such a construction violates the principles of the constitution. After a careful consideration of all the cases, we firmly believe that the case from the Iowa supreme court is the only case which sustains a statute similar to ours. It would be almost impossible to add aught to what has been said upon this subject by other courts, and we content ourselves with stating the conclusion already announced; citing as authorities the following cases: Railroad Co. v. Parks, 32 Ark. 131; Zeigler v. Railroad Co., 58 Ala. 595; Railroad Co. v. Lackey, 78 Ill. 55.
In Illinois the statute required railroads to defray the expenses of burial of all persons dying on or killed by their trains. In the case last cited, the court say: ...
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