Jensen v. Union Pac. Ry. Co.

• Citation: 6 Utah 253,21 P. 994
• Court: Supreme Court of Utah
• Decision Date: 07 June 1889
• Parties: NIELS JENSEN, RESPONDENT, v. UNION PACIFIC RAILWAY COMPANY, APPELLANT. WILLIAM SHAW, RESPONDENT, v. UTAH AND NORTHERN RAILWAY COMPANY, APPELLANT

21 P. 994

6 Utah 253

NIELS JENSEN, RESPONDENT, v. UNION PACIFIC RAILWAY COMPANY, APPELLANT.

WILLIAM SHAW, RESPONDENT, v. UTAH AND NORTHERN RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

June 7, 1889

APPEAL from judgments of the district court of the first district and from orders refusing new trials.

The plaintiff's complaint in each case contained two causes of action. The first charged the killing of the horse according to a complaint good at common law, for the killing of the animal by the negligence of the defendant. The second charged the same injury under the section of the statute which is as follows: "That any corporation operating a railway or railroad within this Territory, which shall injure or kill any live stock, by running an engine or engines, car or cars over or against any such live stock shall be liable to the owner or owners of such live stock for the damage sustained by such owner or owners by reason of such injuring or killing of such live stock, and any such corporation injuring or killing any live stock by running any engine or engines, car or cars, over or against such live stock shall within ten days, thereafter, notify the owner or owners of such live stock so killed or injured of the fact; and any corporation failing to comply with the requirements of this section shall be liable to the owner or owners of such live stock so killed or injured, in the full amount of the damages sustained by the owner or owners of such stock by reason of the killing or injuring. Any person or persons owning any live stock, which shall be killed or injured in the manner set forth in this Section, within six months after the said person or persons is or are notified of the said killing or injuring as provided herein, shall furnish the corporation having so killed or injured live stock, through the nearest agent, sworn evidence of the value of said live stock, and upon the payment by said corporation to the owner or owners of said live stock, of two-thirds of the value of said stock so ascertained to have been killed or injured, said corporation shall be released from further liability."

The Court instructed the jury that the plaintiff had not proven a case under the first cause of action, but that under the second cause of action, as soon as the killing by the corporation was shown, a prima facie case was established and that defendant must then show that the killing was the result of plaintiff's own negligence, or that they gave notice to the plaintiff, and tendered him two-thirds of the sworn value, none of which last two facts were in this case, and that the statute was intended to do away with the proof of negligence. In the former case the jury found no negligence in a special verdict. In the latter case there was no special verdict. The remaining facts are in the opinion.

Reversed and remanded.

Mr. Parley L. Williams and Mr. Waldemar Van Cott for the appellants.

Mr. Thomas Maloney for the respondent.

JUDD, J. ZANE, C. J., and ANDERSON, J., concurred.

OPINION

JUDD, J.:

The plaintiff below, appellee here, brought this action against the defendant company to recover the sum of $ 299, the value of two horses which he alleges were killed by the engine and cars of the defendant. Judgment having been rendered in the Court below upon the verdict of the jury against the defendant company, it has brought the case to this Court, asking that the judgment be reversed and a new trial awarded. The jury, under instructions given by the trial judge, rendered a general verdict for the plaintiff, and at the request of the defendant the following request for a special finding was submitted to the jury: "Was the defendant negligent in killing the plaintiff's horses, or either of them?" To which the jury made the following response: "No." Whereupon the defendant's counsel moved the Court to render judgment in its favor upon the special finding, which was refused. An appeal is also prosecuted from the order of the Court, as well as from the judgment upon the general finding. The action of the trial court is justified by the counsel for the appellee upon the following statute of this Territory, passed in 1884: "That any corporation operating a railway or railroad within this Territory which shall injure or kill any live stock, by running an engine * * * over or against any such live stock, shall be liable to the owner or owners of such live stock for the damage sustained * * * by reason of such injuring or killing." It is conceded at the bar by the counsel for both sides that this statute creates an absolute liability upon the part of the defendant company, and that if it is a valid "law of the land" it furnishes ample authority for the action of the court below.

Counsel for the appellant urges upon this Court that the statute quoted is in conflict with that part of the Fifth Amendment to the Federal Constitution which reads as follows: "No person shall be deprived of life, liberty or property without due process of law." The origin and history of this quotation is not in dispute in American jurisprudence. It is taken from the Great Charter, and in exact language is as follows: "That no man shall be taken or imprisoned, or disseized of his freehold, liberty, or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers or the law of the land." For more than 600 years this law has been the sheet-anchor of the liberty of the English-speaking people. Now, what is the meaning of the phrase, "judgment of his peers or the law of the land?" When the Charter was signed by the King of England it must be borne in mind that there was...