Chicago & N. W. Ry. Co. v. Bishop

• Decision Date: 07 April 1964
• Docket Number: No. 3211,3211
• Citation: 390 P.2d 731
• Parties: CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Appellant (Defendant below), v. W. T. BISHOP, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 731

390 P.2d 731

CHICAGO AND NORTH WESTERN RAILWAY COMPANY, Appellant (Defendant below), v. W. T. BISHOP, Appellee (Plaintiff below).

No. 3211.

Supreme Court of Wyoming.

April 7, 1964.

Robert R. Rose, Jr., Casper, for appellant.

J. F. Mahoney, of Mahoney & Murphy, Casper, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

The railroad company appeals from a judgment awarding plaintiff damages for loss of a Shetland pony killed on the railroad company's right of way by one of the company's trains. By admitting the pony came upon the right of way through a hole in its right of way fence, appellant apparently concedes that its fencing was not kept in proper repair. Sections 37-209 and 37-210, W.S.1957, which were first enacted by Ch. 84, S.L. of Wyoming, 1907, and ever since have remained unchanged, are as follows:

Section 37-209:

'All railway corporations, owning or operating a line of railway within the state, shall construct, maintain and keep in repair on each side of the track thereof, a sufficient fence, so connected with suitable cattle guards at all public road crossings as to prevent stock from getting on the railroad track of said corporation, and such fence when of barb wire to consist of four wires securely fastened to posts set not more than thirty-two feet apart, with stays not more than ten feet apart. Such fence shall be constructed within nine months after the completion of any railroad track or any part thereof; provided, that railway corporations shall not be required to construct and maintain a fence within the boundaries of any incorporated city or town.'

Section 37-210:

'Any corporation operating a railway and failing to fence the same and to construct and maintain suitable cattle guards as required by the preceding section [§ 37-209], shall be liable to the owner or owners of any live stock killed or injured by reason of its failure to construct or keep in repair such fence or cattle guard in the manner provided in the preceding section, for the full amount of the damage sustained by the owner on account thereof and to make a prima facie case for recovery, it shall only be necessary for such owner to prove the loss or injury to his property; provided, that no corporation operating a railroad shall be liable for any damage occasioned by the wilful act of the owner or of his agent or employees or for stock killed or injured on public road crossings unless negligence on the part of such corporation, its agents, servants or employee can be shown.'

Appellant says these statutes make the railroad absolutely liable to the owner of livestock which may be killed upon its right of way and concludes that, inasmuch as conditions have changed since these laws were enacted, those statutes are now unconstitutional by reason of what appellant calls 'the time honored doctrine' that a statute valid when enacted, may become invalid by change in the condition to which it applies. Appellant cites in support of its theory Nashville, Chattanooga & St. Louis Railway v. Walters, Commissioner of Highways, 294 U.S. 405, 55 S.Ct. 486, 79 L.Ed. 949. In that case the Federal Supreme Court held that a statute valid under one set of facts may be invalid under another set of facts and a statute valid when enacted may become invalid by change in the conditions to which it is applied. It also held that police power is subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably. We will not disagree with either of these holdings. However, the factual situation which gave rise to those pronouncements was substantially different from that now before us. In the cited case, a statute empowered a state authority to arrange for the construction of an underpass for a highway which intersected the railroad and required the railroad company to pay one-half the cost of its construction. Because the underpass was a part of a state and nationwide plan to foster motor-vehicle commerce on the public highways and thus afforded motor-carrier competition with the railroad, the court concluded it would be arbitrary and unreasonable to require the railroad to pay one-half of the cost of the facility which was to be used by its competitors.

The case before us it not one which parallels the basic considerations which led to the Nashville, Chattanooga & St. Louis Railway decision. No facility benefiting a competitor of the railroad is required to be constructed and no cost burden for the benefit of a railroad competitor is imposed.

The growing of livestock in Wyoming is one of its most important industries and contributes largely to its favorable economy. It was wholly natural and entirely proper that legislative protection be given this livestock business, and the need for that protection has not been lessened by the advent of a transportation use upon public highways which has grown so greatly as to afford serious competition with the transportation facility previously furnished almost exclusively by railroads. The change which has taken place serves more to emphasize the need for new legislation to protect the livestock grower against the new hazard created by highway transportation rather than the need for nullifying old laws which continue to be necessary in order to protect livestock against the same and identical perils as they were necessary to be protected against when the criticized laws were first adopted. It might also be observed that these statutes are somewhat in the same pattern as other protective statutes which require the fencing of mine shafts and surface openings. See §§ 30-59(b), (c), and 30-23, W.S.1957.

But appellant says that because trucking upon the public ways now presents a similar hazard to livestock as that occasioned by appellant's operations within its private ways, to require the railroad to continue to give fencing protection to livestock and not to require trucking to give a similar protection, now makes the statutes discriminatory and violates the Wyoming Constitution in several ways, namely, Art. 1, § 6, in that they deprive the railroad of property without due process of law; Art. 1, § 7, in that they exercise an absolute and arbitrary power over the property of railroads; Art. 1, § 2, in that they offend against the equal rights of the railroad to life, liberty, and the pursuit of happiness, and that they transgress U. S. Constitution, amend. XIV, § 1, by denying the railroad the equal protection of our laws.

Before discussing these claims of unconstitutionality, it should be noted that appellant's counsel inaccurately says the questioned statutes make the railroad 'absolutely liable' to the owner of any livestock injured, killed, or destroyed the the railroad's trains. Section 37-210, W.S.1957, only imposes liability upon a railroad when livestock is injured or killed by reason of the railroad company's failure to construct or keep in repair the required fencing. Also, the further provision in the statute that proof of loss or injury to the property is sufficient to make a prima facie case for recovery falls short of imposing any absolute liability because the prima facie showing may be rebutted.

Appellant also cites Atlantic Coast Line R. Co. v. Ivey, 148 Fla. 680, 5 So.2d 244, 139 A.L.R. 973, which held Florida's railroad fencing law to be unconstitutional because of the changed conditions brought about by competitive carrier business upon the public highways. The Florida court held that carriers using public highways and railroads using their own private ways owed like duties; that the hazards on...