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

• Citation: 10 Colo. 1,13 P. 910
• Parties: DENVER & R. G. RY. CO. v. HENDERSON.
• Decision Date: 30 April 1887
• Court: Supreme Court of Colorado

13 P. 910

10 Colo. 1

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

Supreme Court of Colorado

April 30, 1887

Appeal from county court, Fremont county.

The present action was brought by appellee against the appellant company to recover damages for the killing of appellee's cow by one of the company's trains. In the county court appellant (defendant) filed a plea in abatement, setting up among other things, that plaintiff had not complied with section 2571 of the General Laws, being section 2805 of the General Statutes. The cause was tried to a jury. When plaintiff rested, appellant moved for a nonsuit, which motion was denied. Thereupon appellant offered evidence on its own behalf. Verdict and judgment for appellee.

John M. Waldron, for appellant.

C E. Waldo, for appellee.

HELM J.

No effort is made to show a compliance, or an attempted compliance, by plaintiff, with the statute relating to damages for the injuring or killing of stock by railroad companies in operating their trains. Section 2804 et seq., Gen. St. The action, therefore, cannot be maintained under the statute, and this presents the first question we are to consider, viz., does the statute furnish an exclusive remedy for the recovery of such damages? At common law the owner of animals which, without fault on his part, are killed or maimed through the negligence of railroad companies, their agents or employes, is entitled to recover a fair compensation for the injury thus inflicted. Section 2 of our statute, being section 2804, must be construed in connection with the remaining provisions of the act. Thus construing the act, we cannot say that, in express terms or by clear implication, it repeals or suspends the common-law right of action mentioned. The statute is, in our judgment, simply cumulative. The object of the legislature was not to interfere with the owner's existing rights, but, owing to the difficulty of establishing negligence, to give him additional relief. 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.

These views do not conflict with the position taken in Atchison, T. & S. F. R. R. v. Lujan, 6 Colo. 338. An examination of the files in that case reveals the fact that this question was not there presented or argued, and the opinion shows that it was not passed upon. We are fairly warranted in the conclusion that that case was instituted and tried under the statute, and that in the trial the objection of a partial failure to comply with the preliminary requirements of the act was not urged, or in any way taken advantage of. The opinion declares that by such conduct defendant waived the objection. There is no language announcing that an action at common...