Denver, T. & G.R. Co. v. De Graff

• Decision Date: 28 March 1892
• Citation: 2 Colo.App. 42,29 P. 664
• Parties: DENVER, T. & G.R. Co. v. DE GRAFF.
• Court: Colorado Court of Appeals

29 P. 664

2 Colo.App. 42

DENVER, T. & G.R. Co. v. DE GRAFF.

Court of Appeals of Colorado

March 28, 1892

Appeal from district court, El Paso county; WILLIAM HARRISON, Judge.

Action by David De Graff against the Denver, Texas & Gulf Railroad Company for damages for burning plaintiff's grass alleged to have been caused by fire escaping from defendant's engine. From a verdict of the jury rendered in favor of plaintiff, defendant appeals. Reversed.

Teller & Orahood, for appellant.

T.A McMorris, for appellee.

REED J.

This was an action at law, brought by appellee to recover damage for the burning and consequent loss of near 2,000 acres of native grass or pasturage, within an inclosure or fences, in October, 1886, the fire being alleged to have originated from fire escaping from the engine of appellant at a point from one to three miles distant from the grass consumed. The extent of the territory burned over was conceded, and there is no conflict of testimony in regard to the value, the defendant below introducing no testimony upon the point. The jury found for the plaintiff (appellee) in the sum of $641.66, and judgment was entered upon the verdict. Prior to March 31, 1887, the following statute was in force, (Gen.St.1883, § 2798, p. 812:) "That every railroad company operating its line of road, or any part thereof, within the state, shall be liable for all damages by fire that is set out or caused by operating any such line of road, or any part thereof, and such damages may be recovered by the party damaged by the proper action in any court of competent jurisdiction," etc. By an act of the above date, (Sess.Laws 1887, p. 368,) the above statute was re-enacted and amended so as to allow the party damaged and the railroad company jointly to appoint appraisers to estimate the damage caused by the fire, etc. The amendment need not be considered, as the act was passed several months after the alleged burning occurred. The object of the amendment was to facilitate adjustment of losses, and prima facie establish the amount of damage sustained. It has never been held, nor can it be, that a party damaged must avail himself of the provision as a condition precedent to right of recovery. Counsel for appellant seem to have been mistaken in supposing the statute above cited to have been repealed by the act of 1887. We can find no evidence of a repeal directly or by implication. In substance, it was enacted in 1874, passed in its present form in 1877, and amended and added to in 1887. The statute is simply declaratory of the common law, except that it eliminates the question of negligence,--which was at common law an important factor,--and makes the liability absolute, "if the fire was set out or caused by operating any such line of road," regardless of the question of negligence.

It is contended by appellant in argument that, no reference having been made in the complaint to the statute, "the plaintiff is therefore conclusively presumed to rely upon the common law." With this we cannot agree. It was a general statute,--need not be pleaded or referred to. If the complaint stated a cause of action under the statute, that was sufficient.

2. It is contended that no recovery could legally be had for want of proof of negligence. We think, as above stated, that the necessity of such proof was obviated by statute. This conclusion is warranted by the language of the statute, it being so plain that no construction is necessary. This position is also, we think, sustained by the supreme court in Railroad Co. v. De Busk, 12 Colo. 296, 20 P. 752, where the statute was also declared constitutional.

In regard to the proof necessary to establish the principal fact, viz., that the fire was communicated by the operating of the road, we think the doctrine of inference--from circumstances--has been carried as far or further than was legally allowable, without in any way criticising adjudicated cases. See Railroad Co. v. De Busk, supra. We think the rule should be limited, not extended. Country juries have invariably, shown themselves inimical to lines of road operated adjacent to or through their property, and probably, in most cases, for satisfactory reasons; but under an ironclad statute, preventing the corporation from...