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

• Court: Colorado Supreme Court
• Writing for the Court: RISING, C. PER CURIAM.
• Citation: Denver & R.G. Ry. Co. v. Crawford, 19 P. 673, 11 Colo. 598 (Colo. 1888)
• Decision Date: 16 November 1888
• Parties: DENVER & R. G. RY. CO. v. CRAWFORD.

19 P. 673

11 Colo. 598

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

Supreme Court of Colorado

November 16, 1888

Commissioners' decision. Appeal from district court, Chaffee county.

Action by J. E. Crawford against the Denver & Rio Grande Railway Company to recover double damages for the killing of a mare. Plaintiff obtained judgment below, and defendant appeals.

BECK C.J., dissenting.

E O. Wolcott and J. M. Waldron, for appellant.

H W. Hobson and M. G. Cage, for appellee.

RISING C.

This action was brought under the provisions of section 15, c. 93 Gen. St. 1883, to recover twice the value of a certain bay mare, which the plaintiff alleged was fatally injured and killed by the defendant, while engaged in operating its railroad in Chaffee county. An issue was also made upon a cause of action authorized by section 14 of said chapter, but the evidence admitted is wholly insufficient to justify a recovery thereunder. That portion of said section 15, upon which the action is based, reads as follows: 'Every railroad company shall keep a book at some station in each county through which their road runs, to be designated by the company, and a notice of the station so designated shall be filed with the county clerks of the counties in which such stations are located; and it is hereby made a duty of the said company to cause to be entered in said book, within fifteen days after the killing of any animal, a description, as nearly as may be, of such animal, its color, age, marks, and brands, and shall keep said book subject to the inspection of persons claiming to have had animals killed. Should any company fail to keep said book, or to file such notice in the manner herein provided, or to enter therein such description of any animal killed, for a period of fifteen days thereafter, such company shall be liable to the owner of such animal to an amount twice the full value thereof.' The plaintiff, in his complaint, alleged the killing of the mare by the defendant; the value; his ownership; and that she was killed without his fault; and further alleged that defendant had failed to file with the county clerk of said Chaffee county a notice of the station on its railroad in said county, to be designated by the defendant as the place where the book provided for in said section 15 should be kept. The plaintiff obtained judgment for twice the value of the animal killed, as found by the jury.

Before entering upon the discussion of the other errors assigned under the fourteenth assignment appellant makes and argues the point that by the repeal of the statute under which the judgment was obtained, since the judgment was obtained without any saving clause as to pending actions, the plaintiff's remedy, and all proceedings in the action under said statute, fell. By an act approved March 31, 1885, (Sess. Laws, 338,) said section 15 was amended so as to read as set forth in said act; and in said amended section the provision of the section amended, requiring every railroad company to file with the county clerks of the counties through which their roads runs a notice of the station designated by the company as the one where the book mentioned in said section would be kept, was omitted. We think it must be considered that this provision was repealed by the failure to re-enact it in the amended section. It is claimed by appellant that the provision repealed was a penal statute, and therefore appellee did not obtain any vested rights under the proceedings had; while it is contended by appellee that the provision repealed is not a penal statute, but that, the penal...