Denver & R.G.Ry. Co. v. Outcalt

• Decision Date: 26 September 1892
• Citation: 2 Colo.App. 395,31 P. 177
• Parties: DENVER & R.G. RY. CO. v. OUTCALT.
• Court: Colorado Court of Appeals

31 P. 177

2 Colo.App. 395

DENVER & R.G. RY. CO. v. OUTCALT.

Court of Appeals of Colorado

September 26, 1892

Error to Gunnison county court; J.M. MCDOUGAL, Judge.

Statutory action by Samuel B. Outcalt against the Denver & Rio Grande Railway Company to recover damages for killing plaintiff's mare. Judgment for plaintiff. Defendant brings error. Reversed.

The other facts fully appear in the following statement by REED J.:

This was a statutory action brought against the railway company to recover the price or value of a mare killed by an engine. There is no serious conflict of testimony. The facts as established are that plaintiff below (defendant in error) had several horses running in a pasture on his farm; the railway of plaintiff passed through the pasture; that defendant, for his own convenience in catching or handling the horses, turned four or more out with ropes or lariats on, 20 or 25 feet long, one end being around the neck of the animal, balance loose and dragging. The mare killed was one of those incumbered with a rope. The horses, on the approach of the engine, were in the immediate vicinity of the track. The train was "slowed up," and whistle blown. The horses crossed the track, and were supposed to be entirely out of danger, but, immediately after, it was seen by the engineer and fireman that the mare in question was fastened to the track by the rope being caught in the track the end caught or fastened being on the opposite side from the mare. The rope consequently passing across the track was caught by the engine. The air brakes were at once applied but it was impossible to stop in time. The mare was pulled upon the track by the rope, struck by the engine, and killed or injured so as to make killing necessary. An appraisement was had, and the mare valued at $200. The company failed to pay within 30 days. Suit was subsequently brought, and a trial had, resulting in a judgment for the plaintiff for $400,--double the appraised value,--also for $50 attorney's fee, making the amount $450, and costs.

Wolcott & Vaile and H.F. May, for plaintiff in error.

Gullett & Crump, for defendant in error.

REED J., (after stating the facts.)

The provisions of the statute under which the action was brought, and which are necessary to be considered in determining the case, are the following: 2 Mills' St. p. 1979, § 3712: "That every railroad or railway corporation or company operating any line of railroad or railway, or any branch thereof, within the limits of this state, which shall damage or kill any horse, mare, gelding, filly, jack, jenny, or mule, or any cow, heifer, bull, ox, steer, or calf, or any other domestic animal, 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." And section 3713, pp. 1979-1981: "And such railroad or corporation shall, within thirty days after the receipt of such certificate, pay to the owner of the stock so killed or damaged, or to his or her authorized agent, the amount of such appraisement, together with all the costs, as aforesaid; and, in all cases where the value of such stock is established by this act, such company or corporation shall pay for such stock within thirty days after the delivery of the affidavit and certificate of ownership of brand, or affidavit of ownership of said stock; and, if any such company shall so fail to pay for such stock within thirty days after the delivery of such affidavit and certificate, such company shall be liable for double the value the appraised or schedule value of any such animal or animals, together with reasonable attorneys' fees, to be allowed by the court."

The only question presented and urged in argument is the supposed unconstitutionality of the statute in question. It is ably contended--First, that defendant is absolutely foreclosed, [2 Colo.App. 398] --precluded from all defense,--having no day in court; second, that the statute is penal in character, in doubling the amount of appraised valuation, and adding an attorney's fee for a failure to pay within the 30 days limited and prescribed.

The questions presented are delicate and troublesome. Were the questions between individuals, the solution would be far easier. Railroad corporations having no natural rights, but their existence and all rights being franchise rights, granted by the state, to what extent they can be subjected to class legislation, and taken out of the domain of general laws and principles applicable to individuals, is a serious and intricate question. The granting by the state of a franchise to operate a railroad, and its acceptance by the corporation, is regarded in the light of a contract; and, where the legislation preceded the act of incorporation, such laws are supposed to be contemplated and accepted by the party accepting the charter, and to form a part of the contract; but, when the restrictive and arbitrary legislation is subsequent to the grant and acceptance, the question is how far a corporation can be subjected to class legislation,--to law made applicable only to it. After careful and exhaustive examination of the authorities, I am reluctantly compelled to hold the statute in question, as construed and administered in our courts, unconstitutional and void. I am the more reluctant, from the fact that, although its constitutionality has not been directly decided by the supreme court, as far as I can ascertain, there are cases that may be construed as sustaining the statute. In Railway Co. v. Henderson, 10 Colo. 1, 13 P. 912, it is said: "Upon a full and careful compliance by the owner of the animal injured with the requirements of the act, he would seem to be entitled thereunder to the compensation fixed or proven, as the case may be, regardless of the question of negligence on the part of the defendant company. Failing to comply with the statute, however, such owner may still have his common-law action."

It will readily be seen that the question of the validity of the statute was neither raised nor determined. The court held the statute not the exclusive remedy, but cumulative; that the party could make his election, and, having made it in favor of the common-law action, he was required to make proof of negligence. In other words, that he could not recover without complying with the requirements of the common law, regardless of the statute. In the paragraph cited the learned judge was very guarded in discussing the statute. Says: "He would seem to be entitled," etc. It is only discussed in so far as was necessary to distinguish between the amount and character of proof required to make a case.

In Railroad Co. v. De Busk, 12 Colo. 294, 20 P. 752, in a very elaborate opinion, the statute making railroad corporations liable for damages caused by fire is declared constitutional, but the decision cannot in any way be construed to cover the statute in question. There are in this important provisions, viz., in regard to double compensation and an attorney's fee, not contained in that. Again, science and practical experience may have clearly demonstrated that, with proper mechanical appliances and care, fire would not be communicated. If such is the fact, the statute only requires such protection to the property of others as public policy and common prudence would dictate, and the absolute liability for the actual damage may be regarded as a proper penalty for a failure either to provide proper appliances or exercise proper care. It is only upon this theory that the statute can be sustained. Although the discussion in the opinion takes a wide range, the conclusion must be held applicable only to the statute involved in the case. It cannot be presumed that it was the intention of the court to anticipate and decide in advance questions that might arise in regard to another statute, on a subject hardly analogous, and containing other and different provisions.

One criticism upon the opinion may be allowed. From the discussion and language used it seems impossible to determine whether the statute in question in that case was regarded as absolute in character, fixing the liability for the damage, on proof that the fire was communicated by the engine, or whether that fact was to be regarded only as prima facie evidence of negligence that might be rebutted by evidence for the defense. In either statute, the validity greatly depends upon the construction of the statute and the solution of that question.

The statute under consideration in this case, as construed and applied, violates the fourteenth amendment of the constitution of the United States, which says: "*** Nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." It is also in violation of section 25, bill of rights of this state, which declares "that no person shall be deprived of life, liberty, or property without due process of law." Though differing slightly in wording the same declaration or provision occurs in the constitutions of all the states, a principle asserted in Magna Charta, which was embodied in, and became a fundamental principle of, the common law, asserting the inviolability of the equality of all persons before the law, and prohibiting class or discriminating legislation. In England the authority of parliament is subject to the limitation that no law shall be passed which is contrary to common right and natural justice. In the old case of Dr. Bonham, 8 Coke, 118a, Lord COKE said: "It appears in our books that in many cases the common law will control acts of parliament, and adjudge them to be utterly void; for, when an act of...