Continental Imp. Co. v. Phelps

• Decision Date: 05 January 1882
• Citation: 11 N.W. 167,47 Mich. 299
• Court: Michigan Supreme Court
• Parties: CONTINENTAL IMPROVEMENT CO. v. PHELPS.

11 N.W. 167

47 Mich. 299

CONTINENTAL IMPROVEMENT CO. v. PHELPS.

Supreme Court of Michigan

January 5, 1882

A railway company is under no common-law obligation to fence its track at the peril of responding in damages for injuries arising from its neglect to do so.

An act "to revise the laws providing for the incorporation of railroad companies" does not violate the constitutional requirement that the object of every law shall be expressed in its title, if it includes the substantial provisions of a former law imposing a liability upon railway companies for injuries resulting from neglect to fence the track.

Long practical construction of an important statute as valid, and acquiescence in and reliance on the faith of it, will outweigh any merely technical objections to its constitutionality based on a want of precision in setting forth its purpose in its title.

The owner of property a quarter of a mile from a railway is not an "adjacent occupant or proprietor."

The Michigan general railroad law of 1855 and the acts amendatory thereto were superseded by the general railroad law of 1871.

Error to Kent.

Hughes, O'Brien & Smiley, for plaintiff in error.

Eugene Carpenter, for defendant in error.

GRAVES J.

On the twenty-ninth of April, 1871, the improvement company was occupying and using the road of the Grand Rapids & Indiana Railroad Company, and Mr. Phelps was owner and proprietor of 160 acres lying away from the railroad and separated from it by a quarter section of unenclosed lands. He lived about a mile and a half from the railroad and owned no land situated nearer to it than the 160 acres just mentioned. There was no fence or other obstruction sufficient for partition fences on either side of said railroad. On the day mentioned a yoke of oxen the property of Mr. Phelps strayed on the track and in the evening a passenger train encountered them on it away from a highway crossing and ran against and so injured them that they were worthless, and one died soon after and the section foreman killed the other.

Every reasonable effort was made by the engineer and other employes in charge of the engine and train to stop and avoid the accident, and there was no carelessness or negligence on the part of the company or any of its employes unless the failure to fence the road should so appear.

This statement of the facts is drawn almost verbatim from the record; and although the law of the case requires no such detail a full and accurate recital seems the best way to dispose of some of the views set forth in one of the briefs handed to the court.

Mr Phelps brought his action on the case and counted on the neglect to fence out cattle and construct cattle-guards. He made no claim in his declaration that the cattle were killed wilfully or maliciously and if he had it would have been negatived by the facts in the record. It does not appear from the case that the cattle were ever on the unenclosed quarter section or that they could go there without trespassing. What does appear is that they strayed upon the track where they had no right to be; but from what immediate premises is not explained. These matters are really unimportant, and they are only alluded to for the same reason given above.

Mr Phelps was allowed to recover, and the only ground for it was that there existed a duty in his favor in point of law to fence the track and that the failure in that duty and the loss occasioned by it gave him a title to sue for the damage. The plaintiff in error denies that it was incumbent on it as the law then stood to fence against Phelps' cattle at the peril of being bound in case of not doing so to pay him for injuries accidentally inflicted on them when straying on the track, and this presents the real question to be decided. That no such obligation was recognized by the common law is certain. Williams v Railroad Co. 2 Mich. 259. If then there was any it must have arisen from contract or been imposed by statute. It is not claimed to have proceeded from contract and it remains to see whether there was a legislative foundation for it. The defendant in error contends that there was. Since the passage of the general railroad law of 1855 the legislature has several times handled this subject and the various enactments have not been uniform. The substance has more or less varied according to the existing views of those temporarily in legislative authority, and the provision now extant differs essentially from that adopted in 1871.

By act No. 33 of the session of 1869, (Laws 1869, vol. 1, p. 49,) to amend section 43 of the general law of 1855, the duty to construct fences was enjoined and neglect was visited with liability in favor of persons damnified, without reference to whether their possessions bordered on the railroad or not and this regulation was in force when the cattle were killed on the twenty-ninth of April, 1871, unless it was done away with by the law of 1871 which took effect on the eighteenth of April, or 11 days before the accident. By the act last mentioned, (Laws 1871, vol. 1, p. 328,) "to revise the laws providing for the incorporation of railroad companies," the duty to fence was equally...