Hunt v. Lake Shore & M. S. Ry. Co.

• Decision Date: 11 October 1887
• Citation: 112 Ind. 69,13 N.E. 263
• Parties: Hunt v. Lake Shore & M. S. Ry. Co.
• Court: Indiana Supreme Court

112 Ind. 69

13 N.E. 263

Hunt

v.Lake Shore & M. S. Ry. Co.

Supreme Court of Indiana.

October 11, 1887.

Appeal from circuit court, La Porte county; David Noyes, Judge.

John H. Bradley, for appellant. Geo. G. Green, John H. Baker, and O. G. Getsendanner, for appellee.

Zollars, C. J.

The material facts in the case as stated in the pleadings and found specially by the court below are these: More than 20 years before the cause of action, as relied upon by appellant, accrued, the appellee railway company, by appropriate condemnation and appropriation proceedings, under the statutes then in force, acquired a right of way through the lands then and now owned by B. C. Bowell, and constructed its railway thereon. On the lands of Bowell there is a farm crossing and two gates, which were constructed by the railway company about 20 years ago for his use and convenience, and which have been kept in repair by the railway company since their construction, without any contract or agreement on its part so to do. Appellant is, and for some years has been, the owner of land adjoining that owned by Bowell. These tracts of lands were separated by a partition fence sufficient to turn live-stock. On the night of the twenty-third day of March, 1886, appellant's horses were upon his pasture land. On that night a portion of the partition fence was thrown down by a storm, and three of the horses went through one of the openings, onto the land of Bowell, and from there through one of the farm gates, which had been left open by some unknown person, onto the railway, and were there killed by a train of appellee's cars. The railway through the land of Bowell was securely fenced at the place where, and at the time, the horses entered upon it, except in so far as the leaving of the gates open, at the time and in the manner above stated, rendered it insecurely fenced.

Upon the foregoing facts, the court below concluded, as a matter of law, that appellee is not liable, and rendered judgment accordingly. From that judgment appellant prosecutes this appeal, and claims that the court below erred in its conclusions of law, and in its rulings upon the pleadings, which presented the same question.

The liability of the railway company under the facts pleaded and found by the court is dependent upon the construction, scope, and effect to be given to the acts of April 8 and 13, 1885, (Acts 1885, pp. 148, 224.) Acts were passed by the legislature in 1852, 1853, and 1863 making railway companies liable for animals killed upon their tracks. 1 Rev. St. 1852, p. 426; 1 Gavin & H. St. 522; 1 Rev. St. 1876, p. 751. The first section of the act of 1863 was amended in 1877, but in no regard material here. Acts Sp. Sess. 1877, p. 61. The act, as so amended, was carried forward into the revision of 1881. Rev. St. 1881, § 4025 et seq. In each of the acts there was a section providing that the act should not apply to any railway securely fenced in, “and the fences properly maintained, by the company.” Such was the statute prior to those of 1885. The necessity resting upon railway companies to construct and maintain fences, in order to escape the liability imposed by the statute, prior to those of 1885; the sort of fences required in order to escape such liability; the localities where fences might be dispensed with, without incurring such liability; and the liability of such companies where the animals entered upon the track through gates at farm crossings, and were killed or injured,-have been settled by numerous judicial interpretations of those several statutes. Construing those statutes, it was held that, where a person through whose land a railway was constructed agreed to build and maintain fences along the right of way, the road as to him would be regarded as fenced; and that if he failed to build and maintain such fences, and his animals passed to the track and were killed, he could not recover from the railway company on the ground that it had not fenced its track as required by the statute. Railroad Co. v. Smith, 16 Ind. 102;Railroad Co. v. Mussetter, 48 Ind. 286;Bond v. Railroad Co., 100 Ind. 301, and cases there cited. And so it was held that where a railroad company had securely fenced its track, and permitted an adjoining land-owner to erect, in such fence, draw-bars and gates for his own convenience in crossing the road, and, by reason of the neglect of such land-owner to maintain such bars or gates, his stock passed to and upon the track, and was killed or injured, the company was not liable for the damages sustained, nor was it liable to the tenant of such land-owner whose stock passed through such gate to the track, and was there injured or killed. Railroad Co. v. Shimer, 17 Ind. 295;Bond v. Railroad Co., supra, and cases there cited; Railway Co. v. Goodbar, 102 Ind. 596, 2 N. E. Rep. 337, and 3 N. E. Rep. 162. It was further held that an adjoining land-owner for whose benefit a private crossing was constructed and maintained by the railway company could not recover against the company under the statute, where his stock passed to the track through the gates of such crossing, which he had neglected to keep closed. Railway Co. v. Mosier, 101 Ind. 597, 1 N. E. Rep. 197; Railway Co. v. Williamson, 104 Ind. 154, 3 N. E. Rep. 814. It was for a time held that, under such circumstances, the railway company was not so liable to such land-owner, nor to any other person whose stock entered upon the track through such gate. Railroad Co. v. Adkins, 23 Ind. 340;RailroadCo. v. Adkins, Id. 345; Railroad Co. v. Petty, 25 Ind. 413;Railway Co. v. Suman, 29 Ind. 40.

So far as those cases exempted railway companies, under such circumstances, from liability to others than those for whose convenience such crossings and gates were constructed and maintained, they were doubted, and virtually overruled, by the case of Railroad Co. v. Ridge, 54 Ind. 39. Since the decision of that case until the present time, it has been held that while railway companies were not liable, under the statutes prior to those of 1885, for the injury or killing of animals of adjoining land-owners for whose convenience private crossings and gates were constructed, where the animals passed to the track through such gate, which such land-owner failed to keep closed, they were liable to other persons whose animals might pass through such open gates to the track, and be there injured or killed. Railway Co. v. Thomas, 84 Ind. 194;Bond v. Railroad Co., supra; Railway Co. v. Mosier, supra; Railway Co. v. Goodbar, supra; Railway Co. v. Williamson, supra. Such was the law at the time the Acts of 1885 were passed. Under the law as thus settled, there could be no question as to the liability of appellee under the facts pleaded and found in the case before us.

It is contended by counsel for appellant that railway companies are liable in cases like this, just as they were formerly, notwithstanding the Acts of 1885. On the other hand, it is contended by counsel for appellee that, under those acts, there is no liability on the part of railway companies in such cases. The first section of the act of April 8, 1885, provides that owners of land separated by the right of way of a railway company may, if such right of way has been acquired by condemnation or appropriation, enter upon the same, and construct and maintain wagon and drive ways over and across such right of way leading from one of such tracts to another on opposite sides of such railway, etc. Section 2 provides that, where such railroad is fenced on one or both sides at a point where such way is constructed, such owner shall erect and maintain substantial gates in the line of such fence or fences across such way, and keep the same securely locked, when not in use by himself or employes.

Section 3 provides that, if animals are killed or injured on the track of such railroad by the cars or locomotives thereof, the company owning and operating such railroad shall not be liable to pay damages therefor, if such animals entered upon the track of such railroad through such gates, unless it shall be proved that such killing or injury was caused by the negligence of the servants of the company owning or operating such railroad.

Of sections 1, 2, 3, and 4 of the act of April 13, 1885, it is sufficient in this connection to say that, among other things, they provide generally for the fencing of railways, and the maintenance of such fences by railway companies, and, in certain cases, for such fencing and maintenance by adjoining landowners at the expense of such railway companies, and for the saving of rights of action under former laws. Section 5, the last section of the act, is as follows: “All gates and bars at farm crossings shall, in the absence of a contract or agreement to the contrary, be constructed and maintained and kept closed by the owner of such farm crossing.” In support of the contention for the liability of appellee in this case, appellant's counsel argue: First, that sections 2 and 3 of the act of April 8, 1885, relate wholly to gates at crossings constructed by adjoining land-owners under the power given by the first section of the act, and have no relation whatever to gates at crossings constructed before the act took effect, or voluntarily constructed by the railway company for the convenience and use of such land-owners; second, that section 5 of the act of April 13, 1885, has reference also to gates and crossings constructed by land-owners under the power given by the first section of the act of April 8, 1885; third, that the first section of that act is unconstitutional; fourth, that said sections 2, 3, and 5 are so connected with and dependent upon that sectionthat they must fall with it; and, fifth, that section 5 of the act of April 13th is invalid, because not within the title of the act.

While the first two arguments, based upon a technical construction of certain...