Nielsen v. Chicago, B. & Q. R. Co.

• Decision Date: 18 May 1911
• Docket Number: 3,096.
• Citation: 187 F. 393
• Parties: NIELSEN v. CHICAGO, B. & Q.R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

187 F. 393

NIELSEN v. CHICAGO, B. & Q.R. CO.

No. 3,096.

United States Court of Appeals, Eighth Circuit.

May 18, 1911

Syllabus by the Court.

A railroad company owes no duty to its servants under the common law to fence its railroad to prevent cattle from straying upon it.

A proclamation calling a special session of the Legislature to enact any and all legislation relating to or affecting corporations of a quasi public nature does not 'specially name' legislation requiring railroad companies to fence their tracks, and chapter 1 of the Laws of Colorado of 1902 (Ex. Sess.), known as the 'fencing statute,' is unconstitutional and void under article 4, Sec. 9, of the Constitution of Colorado.

The federal courts uniformly follow the construction of the Constitution and statutes of a state announced by its highest judicial tribunal in all cases that involve no question of general jurisprudence or commercial law and no question of right under the Constitution and laws of the nation.

W. F Hynes and Philip Hornbein, for plaintiff in error.

Henry McAllister, Jr. (Joel F. Vaile and William N. Vaile, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and WILLIAM H MUNGER, District Judge.

SANBORN Circuit Judge.

The plaintiff brought an action against the Chicago, Burlington &amp Quincy Railroad Company for damages caused, as he alleged in his complaint, by the failure of the company to fence its railroad in Colorado between Lafayette and Denver through an agricultural and pastoral country where cattle roamed. He averred that he had been employed by the company as an extra fireman for about a year, that cattle had been in the habit for a long time of going upon the defendant's railroad to its knowledge and that about 2 o'clock in the afternoon of August 30, 1907, as he was working as a fireman on the locomotive that was hauling cars over the railroad, it collided with a steer, was thrown off the track, and he was so seriously injured that he sustained damages to the amount of $40,000. He set forth his claim for these damages in his complaint in two counts, in the first of which he relied for a recovery upon the common law, and in the second upon section 2 of chapter 1 of the Laws of Colorado of 1902, page 23 (Rev. Stat. of Colorado 1908, Sec. 5480), which required the railroad company to fence its right of way except at crossings and within the limits of incorporated towns and cities. To this complaint the court below sustained a demurrer, and this ruling is questioned by the writ of error.

In the year 1888, Judge Brewer, afterward Mr. Justice Brewer of the Supreme Court, the n the Circuit Judge of this circuit decided that a railroad company was not liable under the common law for injuries sustained by a servant from a derailment of a locomotive by cattle that had strayed upon the track because it had not be en fenced against them. Cowan v. Union Pacific R.R. Co. (C.C.) 35 F. 43. That has been the law in the federal courts of this circuit ever since that day. Nor is it an unreasonable rule, for a railroad company is required to exercise ordinary care only to keep its railroad reasonably safe for the operation of its trains by its servants. The legal presumption is that it uses that care, an d the fact that it does not fence its railroad through pastures and fields used for grazing and agriculture fails to overcome this presumption. Moreover, the risk from cattle on a track that an employe knows is not fenced becomes under the common law one of the ordinary risks of operating such a railroad, which he assumes, and an employe who has been firing or driving a locomotive over a railroad at different times during several months knows as well as the company that the road is not fenced. There was no error in the ruling of the court sustaining the demurrer to the first cause of action. Wharton on Negligence (2d Ed.) Sec. 886; Gill v. Louisville & N.R. Co., 160 F. 260, Id., 91 C.C.A. 613, 165 F. 438; Newsom's Adm'r v. Norfolk & W.R. Co. (C.C.) 81 F. 133, 135; Patton v. Central Iowa Ry. Co., 73 Iowa, 306, 35 N.W. 149.

In support of the opposite view, Hayes v. Michigan Central R.R. Co., 111 U.S. 228, 4 Sup.Ct. 369, 28 L.Ed. 410; Donnegan v. Erhardt, 119 N.Y. 468, 23 N.E. 1051, 7 L.R.A. 527; Atchison, Topeka & S.F.R.R. Co. v. Reesman, 9 C.C.A. 20, 25, 26, 60 F. 370, 375, 376, 23 L.R.A. 768; Dickson v. Omaha & St. L. Ry. Co., 124 Mo. 147, 27 S.W. 476, 25 L.R.A. 320, 46 Am.St.Rep. 429; International & G.N. Ry. Co. v. Thompson, 34 Tex.Civ.App. 67, 77 S.W. 439; Fordyce v. Jackson, 56 Ark. 594, 598, 20 S.W. 528, 597, and Lackawanna & Bloomsburg R.R. Co. v. Chenewith, 52 Pa. 382, 387, 91 Am.Dec. 168-- cited by counsel for the plaintiff, have been examined. But there was a fencing ordinance or a fencing statute to sustain the plaintiff in each of the first four cases, and the plaintiff was a passenger or was treated as such in each of the last three cases, and a railroad company is liable to a passenger for failure to exercise the highest degree of care, while to a servant it is liable for the failure to exercise ordinary care only. These cases are not persuasive that the court below erred when it followed the settled law of this circuit.

The second cause of action is based on section 2 of chapter 1 of the Laws of Colorado for 1902 (Revised Statutes of Colorado 1908, Sec. 5480). That section is a part of an act in relation to the fencing of railroads which was passed at a special session of the Legislature of Colorado and was approved March 14,1902. Article 4, Sec. 9, of the Constitution of that state reads:

'The Governor may, on extraordinary occasions, convene the General Assembly, by proclamation, stating therein the purposes for which it is to assemble: but at such special session no business shall be transacted other than that specially named in the proclamation.'

The act of 1902 is assailed on the ground that its subject was not 'specially named' in the Governor's proclamation. The only paragraph that is claimed to refer to its subject-matter reads:

'Third. To enact any and all legislation relating to or in any wise affecting corporations both foreign and domestic of a quasi public nature.'

The Supreme Court of Colorado in Denver & Rio Grande Railroad Co. v. Moss, 115 P. 696, has sustained this contention in an opinion filed March 6, 1911, and decided that this act was unconstitutional and void. We are of the same opinion, and if we were not, it would be our duty to follow the construction given to the Constitution of Colorado and the effect given to this statute by the highest judicial tribunal of that state. The federal courts uniformly follow the construction of the Constitution and statutes of a state announced by its highest judicial tribunal in all cases that involve no question of general or commercial law and no question of right under the Constitution and laws of the nation. Madden v. Lancaster County, 12 C.C.A. 566, 570, 65 F. 188, 192; Clapp v. Otoe County, 45 C.C.A. 579, 582, 104 F. 473, 476; City of Beatrice v. Edminson, 117 F. 427, 430, 54 C.C.A. 601, 604. The complaint in this case states no cause of action under the common law, and there was no valid statute of Colorado creating any cause of action against a railroad company for injury to one of its servants from a failure to fence its railroad.

The judgment below must accordingly be affirmed, and it is so ordered.

NOTE.-- The following is the opinion of Lewis, District Judge, on sustaining demurrer to complaint:

LEWIS District Judge. The complaint contains two counts. The first count charges that the plaintiff was in the employ of the defendant as a locomotive fireman for about a year preceding August 30th, 1907, that on that day he was aboard a freight engine which ran from Denver to Lafayette and that on the return trip said engine was derailed about two p.m. on account of a collision with a steer which had come upon the track of the defendant by reason of its negligent failure to erect and maintain suitable fences along the sides of its road, and thereby he received severe and permanent injuries, to his great damage. This count, as claimed by plaintiff, states a...