Sullivan v. Oregon Ry. & Nav. Co.

• Decision Date: 10 June 1890
• Citation: 24 P. 408,19 Or. 319
• Parties: SULLIVAN v. OREGON RY. & NAV. CO.
• Court: Oregon Supreme Court

24 P. 408

19 Or. 319

SULLIVAN v. OREGON RY. & NAV. CO.

Supreme Court of Oregon

June 10, 1890

Appeal from circuit court, Umatilla county; JAMES A. FEE, Judge.

The action was to recover damages for the killing of a stallion by the defendant railroad, belonging to the plaintiff, based upon the act of 1887, and found in Hill's Compilation, §§ 4044-4049, inclusive. Upon issue being joined, a trial was had, and the plaintiff recovered judgment, from which this appeal is brought.

(Syllabus by the Court.)

A statute which prescribes, as a precautionary measure, what shall be deemed a sufficient fence to protect a railroad track from the entrance of live-stock, and declares an absolute liability for the killing of stock for the failure to fence, or for killing stock on an unfenced track, except for contributory negligence or misconduct, imposes, by implication, the duty to fence as much as if such duty was expressly declared.

Section 4044 makes a railroad company liable for the value of stock killed upon or near any unfenced track by a moving train, and section 4045 prescribes what shall be deemed a sufficient fence to guard the railway track from the entrance thereon of live-stock mentioned in section 4044 so killed that proof of such killing shall be deemed and held conclusive evidence of negligence, except when the owner is guilty of negligence, or misconduct. Held, that the statute, in prescribing the fence, and declaring that stock killed "on or near any unfenced track," shall be conclusive evidence of negligence by implication, makes it the duty of a railway to fence its track.

A statute often speaks as plainly by inference, and by means of the purpose which underlies the enactment, as in any other manner.

Such a statute is intended as a precautionary measure to protect the track from stock, where allowed to roam at large, so as to insure safety in the running of the trains as well as to prevent the destruction of live-stock, and is a police regulation, which finds its authority in the same power as regulates the storage of gunpowder, or other dangerous instrumentalities, and is not obnoxious to the constitutional objection of depriving the company of its property without due process of law, or of denying it the equal protection of the laws.

Under the statute, in view of the construction given in Hindman v. Navigation Co., 17 Or. 691, 22 P. 116, when it is alleged and proven that stock is killed or injured at a place where the company has failed to fence, but the duty existed (an unfenced track,) a case of negligence is made out unless the defendant can show contributory negligence or misconduct.

Proof of the place of entry of the stock only becomes material and devolves on the plaintiff when stock is killed or injured at a place where the railroad company is not bound to fence, as a public highway, which has entered where its track was unfenced, and the duty to fence existed, and such killing or injury is the direct consequence of omission to fence.

W.W Cotton and Gilbert & Snow, for appellant.

Ramsey & Wager, for respondent.

LORD J.

There are two questions suggested by the defendant upon this record for our determination. These will be examined in the order discussed. The first is that the act of 1887, in relation to killing stock upon or near any unfenced track of any railroad, and found in Hill's Compilation of 1887, as sections 4044 to 4049, inclusive, is unconstitutional. Section 4044 provides as follows: "Any person *** or corporation *** owning or operating any railroad within the state of Oregon shall be liable for the value of any horses *** killed *** upon or near any unfenced track of any railroad in this state, whenever such killing or injury is caused by any moving train or engine or cars upon such track." Section 4045 is as follows: "No railroad track shall be deemed to be fenced within the meaning of this act unless such track is guarded by such fence against the entrance thereon of any such live-stock on either side of said track, and not more than one hundred feet distant therefrom: provided, that whatever is a lawful fence under the laws of this state in the county where such killing or injury shall occur, and no other, under the laws of this state, shall be deemed and held a lawful fence under this act; and provided, further, that complete, natural defenses against the entrance of such stock upon said track, such as natural walls or deep ditches, shall be deemed and held to be a fence under this act, when the same, in connection with other and ordinary lawful fences, form a continuous guard and defense against the entrance of such live-stock upon the track." It is claimed by counsel for the defendant that these sections are unconstitutional, for the reason that they are in conflict with the fourteenth amendment of the constitution of the United States, (1) in that they deprive the defendant of its property without due process of law; and (2) in that they deny to the defendant the equal protection of the laws. As corporations are persons within the meaning of the clause in question, they are entitled to invoke the benefit of its provisions. Santa Clara Co. v. Railroad Co., 118 U.S. 394, 396, 6 S.Ct. 1132. The defendant, then, is within its protection. The alleged conflict of these sections, or the act of 1887, to the fourteenth amendment, ordaining that no state shall deprive any person of its property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, is supposed to lie in discriminating against the defendant by imposing a liability where no duty is required by law, or without any act of negligence on its part. The contention is that the act of 1887 imposes no duty upon the defendant to fence its track. Yet it declares that the company shall make reparation for the killing of stock in the prosecution of its lawful business, without any fault or negligence on its part, or the violation of any duty imposed by law. As the defendant has the lawful right, in a lawful way, to run its trains, in order to hold it liable for the value of stock killed, caused by the running of its trains, there must be some violation of a duty imposed by law, or some act of negligence on its part. And it would follow, unless the act imposes some duty, the violation of which renders the defendant liable, it would be open to the objection that it subjects the defendant and its business to a liability where no wrong has been committed or duty unperformed, thereby depriving it of its property and the equal protection of the law afforded to others. That the legislature, in the exercise of the police power of the state, may require all railroads to fence their track, and for neglect or failure to perform this duty render them liable for whatever injury is done, or for double the value of the stock killed, and that such legislation is not obnoxious to the clause of the constitution in question, has been frequently decided, and cannot be questioned. The danger attending the running of steam railway cars, and liability to serious injury or loss of life of its passengers by collision with animals straying upon its track where allowed to roam at large, makes it a requirement of duty to exercise the utmost care, and to take every precaution to keep its track clear so as to prevent accidents from such collisions. How can this be better done, and the track kept comparatively secure from stock going upon it, than by requiring the railroad company to fence its track, and, in default thereof, to hold it liable for the value of the stock killed by such collision when the plaintiff is not contributorily negligent? Such a precaution, where stock is allowed to run at large, is a police regulation, and, as a security against the loss of life and property in the operation of dangerous machinery, is based upon the same principle, and finds its authority in the same power, which regulates the storage of gunpowder or other dangerous explosives. This being so, the legislature may require railroad companies to inclose their tracks with fences, and provide that they may be held liable for all stock killed, caused by their neglect to maintain such fences; and, if the act in question has imposed this duty on the defendant, and attached a liability for its neglect, it is a valid exercise of the police power, and not subject to the constitutional objection urged. The real inquiry, then, is, does the act of 1887, as found in the sections, supra, inclusive, undertake to impose any duty upon railroad companies to fence the line of their track, and for failure to discharge this obligation render them liable for the value of the stock killed? While the act does not declare the duty of the defendant railroad company to fence its track in express terms, it is sufficient, and forms part of the statute, if it makes it the duty of the defendant to do so by implication. "An implication," said FOLGER, J., "is an inference of something not directly declared, but arising from what is admitted or expressed. Thus, when a statute, looking beyond the question of revenue, inflicts a penalty for doing an act, though that act be not in terms prohibited, yet it is unlawful, for the penalty implies a prohibition. Griffith v. Wells, 3 Denio, 226. And the principle is that as the law will not punish an act which it is lawful to do, when it does punish it the act must of necessary implication be unlawful. In re City of Buffalo, 68 N.Y. 173. So a statute which prescribes, as a precautionary measure, what shall be deemed a sufficient fence to protect a railroad track from the entrance of live-stock, and declares an absolute liability for the killing of stock for the failure to fence, or for killing stock on an...