Cincinnati, N.O. & T.P.R. Co. v. Russell

• Decision Date: 18 November 1892
• Parties: Cincinnati, N. O. & T. P. Ry. Co. v. Russell.
• Court: Tennessee Supreme Court

20 S.W. 784

92 Tenn. 108

Cincinnati, N. O. & T. P. Ry. Co. v. Russell.

Supreme Court of Tennessee.

November 18, 1892

Appeal from law court of Rockwood; S. A. Rodgers, Judge.

Action by W. H. Russell against the Cincinnati, New Orleans & Texas Pacific Railway Company, to recover damages for killing a bull. Judgment for plaintiff. Defendant appeals. Affirmed.

Caldwell J.

This is an action of damages, brought by W. H. Russell against the Cincinnati, New Orleans & Texas Pacific Railway Company for killing a bull. The suit was commenced before a justice of the peace, from whose judgment the railway company appealed to the circuit court. In the latter court verdict and judgment were rendered in Russell's favor for $40, and the railway company appealed in error to this court.

On the trial witnesses were examined as to the condition of the defendant's track with reference to fencing, and as to the killing and value of the bull, no previous appraisement having been made. The trial judge, conceiving the case to be controlled by chapter 101 of the Acts of 1891, refused to admit evidence as to the observance or nonobservance of the precautions prescribed by subsection 4, § 1298, Mill. & V. Code, and instructed the jury, among other things, substantially as follows: (1) That, if the plaintiff's bull was killed by the moving train of the defendant upon an unfenced track, the plaintiff was entitled to recovery; and (2) that, if the animal was so killed upon a fenced track, the plaintiff was not entitled to a recovery. Error is assigned upon the ruling as to evidence and upon the charge. Confessedly both are in conformity with sections 2 and 3 of chapter 101, Acts 1891, but counsel for appellant deny that this case comes within the provision of that act. The contention is that this case should have been tried under sections 1298, 1299, ^[1] and 1300 of the Code, because the plaintiff did not have his bull appraised before suit, and then sue upon the appraisement, as authorized by sections 4 and 5 of the said act of 1891. In other words, the insistence is that the said act created a new remedy, without affecting the old one; that said act is to be treated as a whole, and the provisions of sections 2 and 3 cannot be made available unless those of sections 4 and 5 be first pursued. To that view we cannot agree. The object of the act in question was to induce the railroad companies to fence their tracks primarily in the interest of the traveling public, and secondarily, for the protection of live stock along the line of travel. It greatly modifies, and in a large measure supersedes, the previously existing law, which had no reference to the fenced or unfenced condition of the railroad. Railroad Co. v. Crider, 91 Tenn. 489, 19 S.W. 619-622. The act of 1891 makes no imperative requirement that railroad companies shall fence their tracks, but it holds out very potent and unmistakable inducements to that end. The second section makes railroad companies absolutely liable in damage for all live stock killed or injured by moving trains upon unfenced tracks, (Railroad Co. v Sadler, 91 Tenn. 489, 19 S.W. 618;) and section 3 gives them complete exoneration from liability where their tracks are fenced. These are weighty inducements to the end sought by the legislature, the one being in the nature of punishment for a failure to fence, and the other in the nature of a reward for fencing. The burden cast upon the railroad companies by the second section is absolute liability for the actual damage done. The owner may have the advantage of a prima facie case as to the amount of the damage, and of a recovery for reasonable attorneys' fees, and thereby increase the burden upon the company in default, by first having the damages appraised and then suing on the appraisement, as provided in sections 4 and 5. "Failure to fence is made conclusive evidence of negligence whenever live stock is killed or injured upon such an unfenced road by moving engines or cars. The liability of the company for actual damages is made the consequence of the failure to fence, and, if the offending company refuses to pay the prima facie value of such stock, as ascertained in the mode described by the act, (section 4,) then it is made liable for an increase in damages to the extent of reasonable attorney's fee in the event it...