Oregon Ry. & Nav. Co. v. Smalley

• Decision Date: 08 March 1890
• Citation: 23 P. 1008,1 Wash. 206
• Court: Washington Supreme Court
• Parties: OREGON RY. & NAV. CO. v. SMALLEY.

23 P. 1008

1 Wash. 206

OREGON RY. & NAV. CO. v. SMALLEY.

Supreme Court of Washington

March 8, 1890

Appeal from district court, Walla Walla county.

SCOTT and DUNBAR, JJ., dissent.

W W. Cotton, for appellant.

STILES, J.

This was an action against a railroad company for the value of a colt killed by a train of the company, and for injuries to another colt by the same train. The complaint alleged facts which, if proven, would have been sufficient to warrant a recovery at common law; and the answer put in issue all its material allegations. At the trial, however, both the plaintiff and the court appear to have regarded it as a case prosecuted under the act of November 28, 1883. Accordingly the testimony of the plaintiff was limited to the facts of ownership, the killing and maiming, the want of a fence along the track, and the value and damage. The defendant offered to show that its train was managed without fault, and that the plaintiff's negligence contributed to the accident, but the court rejected the evidence as being irrelevant and immaterial; and this ruling was excepted to. It did appear, however, that the animals had strayed into a fenced field, not the property of their owner, and that from that field, which extended to the railroad track, they had gone upon the track at the point where they were struck by the train. The defendant requested a number of instructions to the jury which would have been applicable in the absence of any statute; but the court refused to give them, and did give the following: "Railroad companies owning or operating lines of railway within this territory are liable for the value of all live-stock killed or maimed by their passing trains, where their roads are not fenced." Exceptions were taken to the refusal to give the instructions asked, and to the giving of the instructions noted above. Error is assigned upon all the exceptions. This case brings this court squarely to a review of the act of 1883 ^[1] commonly known as the "Fence Law," and of the case of Dacres v. Navigation Co., decided by the supreme court of Washington Territory, January 29, 1889, and reported in 20 P 601. The court in that case, and the parties there and here decided and admitted that sections 2-7 of the act were unconstitutional, because they deny the right of trial by jury; but, in response to its own question, "Is the whole act void by reason of the unconstitutionality of the sections named?" the court answered in the negative, and upheld the first and eighth sections as valid and binding law, being complete in itself, and "capable of being executed in accordance with the apparent legislative intent wholly independent of that which was rejected," as the court said. The ruling was based upon the general principle, as stated by Judge Cooley's Constitutional Limitations, (5th Ed.,) 212, thus "Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislature would have passed the one without the other. *** If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which is rejected, it must be sustained." The act in question, as it is left, including its title, is as follows: "An act to secure to the owners of live-stock payment of the full value of all animals killed or maimed by railroad trains. Be it enacted," etc.: "Section 1. That all railroad companies owning or operating lines of railway within the territory of Washington shall be liable to the owners of all live-stock for the full value of all such live-stock killed or maimed by their passing trains." "Sec. 8. No railroad company shall be liable for stock killed upon their roads when the same is fenced by such company with a good lawful fence." Construing the act, the court held that its general object was to enlarge and extend the rights of owners of live-stock, as against railroad companies, so long as the railways are not properly fenced; and its final construction of the two sections retained was as follows: "Where an animal, being lawfully upon adjoining land, thence escapes upon a railway track at a place which is not fenced, but which the company may properly and lawfully fence, and the animal is killed by a passing train, the company is liable for the value of the animal, if killed, and, if injured but not killed, for the amount of damages caused by the injury. *** It is evident upon the face of this statute that the legislature intended to make the neglect or failure of railway companies to fence their railways evidence of negligence. This is made clear by section 8, which exempts companies from liability for the killing of live-stock where the railways are properly fenced." Viewing this act if the light of its title alone, we should be inclined to agree with that court as to the general object sought by the legislature. But that, by its terms, it was a reasonable statute, or one such as has been commended by courts in the cases cited, or that its provisions could be toned down and softened by the construction put upon them so as to make it a reasonable statute, we are unable to discover, even after a careful study of the decision quoted. The liability of a railroad company for injuries to live-stock is based upon a supposed negligence in the performance of some duty imposed under the general rules of law or a statute; but to fence its track is not the duty of a railroad company under any law of Washington, either written or unwritten, not excepting the act in question. Therefore, without this statute, the usual rules as to negligence and the burden of proof would apply in these stock-killing cases; and the...