Bush v. State

• Court: Arkansas Supreme Court
• Writing for the Court: WOOD, J.
• Citation: Bush v. State, 194 S.W. 857, 128 Ark. 448 (Ark. 1917)
• Decision Date: 30 April 1917
• Docket Number: 341
• Parties: BUSH, RECEIVER OF ST. Louis, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. STATE

194 S.W. 857

128 Ark. 448

BUSH, RECEIVER OF ST. Louis, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. STATE

No. 341

Supreme Court of Arkansas

April 30, 1917

Appeal from Marion Circuit Court; J. I. Worthington, Judge affirmed.

Judgment affirmed.

Troy Pace, for appellant.

1. The act, July 23, 1868, Kirby's Digest, § 6595, is penal, strict construction is required, and no one can be brought within its terms unless the words of the statute, in their ordinary acceptation comprehend such person. 87 Ark 409; 114 Id. 47; 88 Id. 277; 6 Wall. 395; 5 Wheat. 76.

2. The receivers are not the owners of the railroad nor within the terms of the statute. 78 F. 290; 85 Id. 533; 177 U.S. 305; 18 S.W. 578; 60 F. 176; 23 S.W. 317; 25 Id. 1076; High on Receivers, 553; 33 Cyc. 683. Kirby's Digest, § 6732. does not apply to receivers and has no application.

John D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.

1. The statute, Kirby's Digest, § 6595, was intended to apply to every person owning, controlling or operating trains over any railroad in this State, and receivers are subject to its penalties. 79 Minn. 372; 44 Conn. 291; 45 Oh. St. 577; 57 Minn. 345; 98 Ark. 200; 33 Conn. 237; High on Receivers, 553; 169 Mass. 398; 110 N.Y. 250; 46 Mo.App. 466, 469; 84 Ark. 409. While the statute is penal, it is also highly remedial to protect persons and property. It should be liberally construed. Supra. 84 Ark. 409.

OPINION

WOOD, J.

Section 6595 of Kirby's Digest provides that a bell of at least 30 pounds in weight or a steam whistle shall be rung or blown at the distance of at least 80 rods from the place where the railroad shall cross any other road or street and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of $ 200 for any neglect, to be paid by the corporation owning the railroad.

The only question presented by this appeal is whether or not the above statute, is applicable to a receiver operating a railroad in his capacity as such receiver. The intention of the Legislature was to prevent, as far as possible, accidents that might otherwise occur if travelers at the crossings of a railroad with other roads were not warned of the approach of the train at such crossings. The statute was leveled at whoever should be operating the railroad rather than the corporation who might have the technical ownership thereof. Any one operating a railroad, whether as the technical owner, or as the lessee or receiver, who, for the time being, has the road in charge, and is operating the same, is comprehended within this statute and comes within the purpose of the lawmakers in enacting the same.

In 1879 the Legislature of Pennsylvania enacted a law requiring, among other things, the owners of factories to provide and cause to be affixed to every such building permanent fire escapes under a penalty not exceeding $ 300. A tenant who had leased a factory was sued for damages caused by a failure to provide a fire escape as required by the statute. In passing on the question as to whether or not the tenant was an owner within the terms of the statute, the Supreme Court of Pennsylvania said: "It is certainly a highly penal statute. It imposes a duty unknown to the common law, and punishes a neglect of that duty in the manner above stated. It is almost needless to say that such an act can not be extended by implication to parties who do not clearly come within its terms." Then the court held that, for all practical purposes, the tenant in possession was the "owner" until the end of his term. Schott v. Harvey, 105 Pa. 222.

In statutes prescribing certain duties to be performed by the "owners" of railroad companies and providing a penalty for failure to perform those duties, it is held that the word "owners" is used in the popular, rather than in the technical, sense, and the word is construed "so as to include all who are operating the railroad, whether as owners of the property or as lessees, receivers or the like." State v. Corbett, 57 Minn. 345, 353, 59 N.W. 317; The State of Missouri to the Use of Ray County v. St. Joseph, St. Louis & Santa Fe R. Co., 46 Mo.App. 466.

In the last case the court, in construing a statute almost identical with ours except as to the amount of the penalty, among other things, said: "More than this whether defendant was operating this railroad as absolute owner, lessee, or otherwise, it was liable for the violation by it of the provisions of this statute. It filled the requirement of 'owner' under this statute." See, also, Baltimore & Ohio...