Terre Haute & L. Ry. Co. v. Salmon

• Decision Date: 19 June 1903
• Citation: 67 N.E. 918,161 Ind. 131
• Parties: TERRE HAUTE & L. RY. CO. v. SALMON.
• Court: Indiana Supreme Court

161 Ind. 131

67 N.E. 918

TERRE HAUTE & L. RY. CO.

v.SALMON.

Supreme Court of Indiana.

June 19, 1903.

Appeal from Circuit Court, Clinton County; James V. Kent, Judge.

Action by James W. Salmon against the Terre Haute & Logansport Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Guenther & Clark, for appellant. Joseph Combs, for appellee.

MONKS, C. J.

This action was brought by appellee against appellant to recover for labor and material in constructing a fence along the right of way of appellant's railroad, where the same abuts on appellee's land, and attorney's fees, under sections 5323-5325, Burns' Rev. St. 1901. Appellee recovered judgment for the value of the fence, and attorney's fees, as provided in said sections. Appellant asks for a reversal of said judgment as to attorney's fees on the ground that the provisions of said sections which authorize the recovery of attorney's fees, in addition to the value of the fence, is in violation of the fourteenth amendment of the Constitution of the United States, and of sections 12 and 22, art. 1, of the Constitution of this state, and therefore void. Said sections, 5323-5325, supra, provide that railway companies must fence their tracks where they can be fenced, specifying the kind of fence required, and, upon their neglect or failure to do so, give the owner of real estate adjoining the right of way the right, after giving 30 days' notice of his intention to do so, to build or repair the same, and collect the expense thereof, including material and labor, together with reasonable attorney's fees. Other sections make railroad companies liable to the owners of stock killed or injured by the locomotive, cars, or other carriages run on such railroad in this state, not securely fenced in, without regard to the question of negligence. Sections 5312-5318, Burns' Rev. St. 1901; Indianapolis & Cincinnati Railroad Company v. Parker, 29 Ind. 471. These statutes were passed by the Legislature, in the exercise of the police power, to compel railroad companies to fence their tracks, and are for the protection of persons and property carried upon railroads. It is the undoubted right of the Legislature, in the exercise of the police power, not only to require all railroad companies within the limits of its jurisdiction to inclose their roads with suitable and sufficient fences, as a matter of public safety, but also to impose penalties for failure to perform such duty. Such penalties may be in the shape of double the actual damages suffered, double costs, attorney's fees, and absolute liability in case of injury to animals. Such laws are enacted to compel railroad companies to fence their rights of way, and thus protect persons and property passing on the railroad, and are not in violation of any of the constitutional provisions mentioned by appellant. Cooley's Constitutional Law, pp. 712, 713; 2 Elliott on Railroads, § 669, and cases cited; 3 Elliott on Railroads, §§ 1219, 1220, and cases cited; 12 Am. & Eng. Ency. of Law, 1095, 1096, and cases cited; Thornton on Railroad Fences, §§ 14, 15, 19; Missouri Pacific Ry. Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. 110, 29 L. Ed. 463; Same v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107;Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. 207, 32 L. Ed. 585;Minneapolis & St. L. R. Co. v. Emmons, 149 U. S. 364, 13 Sup. Ct. 870, 37. L. Ed. 769;Indianapolis & Cincinnati Ry. Co. v. Parker, 29 Ind. 471; Same v. McKinney, 24 Ind. 283; Same v. Kercheval, 16 Ind. 84; Same v. Townsend, 10 Ind. 38; Cairo & St. Louis Ry. Co. v. People, 92 Ill. 170;Peoria & Decatur Ry. Co. v. Duggan, 109 Ill. 537, 50 Am. Rep. 619;Johnson v. Chicago & St. Paul Ry. Co., 29 Minn. 425, 13 N. W. 673;Perkins v. St. Louis & Southern Ry. Co., 103 Mo. 52, 15 S. W. 320, 11 L. R. A. 426;Briggs v. St. Louis, etc., Ry. Co., 111 Mo. 168, 172, 173, 20 S. W. 32; Railroad v. Crider et al., 91 Tenn. 489, 19 S. W. 618, and cases cited; Kansas Pacific Ry. Co. v. Mower, 16 Kan. 573, and cases cited; Hopkins v. Kansas Pacific Ry. Co., 18 Kan. 462;Atchison & Nebraska Ry. Co. v. Harper, 19 Kan. 529;Missouri River & Gulf Ry. Co. v. Shirley, 20 Kan. 660, and cases cited; Jacksonville, etc., Ry. Co. v. Prior, 34 Fla. 271, 283, 284, 15 South. 760.

It was held by the Supreme Court of the United States in Minneapolis & Chicago Ry. Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. 207, 32 L. Ed. 585, that section 1289 of the Code of Iowa, which authorized the recovery of “double the value of stock killed or damages done thereto” by a railroad, when the injury took place at a point on the road where it was the duty of the corporation to erect a fence, and it failed to do so, is not in conflict with the fourteenth amendment of the Constitution of the United States, either as depriving the corporation of its property without due process of law, or as denying it the equal protection of the law. The court said (page 31, 129 U. S., page 208, 9 Sup. Ct., 32 L. Ed. 585): “In The Missouri Pacific Railway Company v. Humes, 115 U. S. 512, 523 [6 Sup. Ct. 110, 29 L. Ed. 463], a statute of Missouri requiring every railroad corporation within it to erect and maintain fences and cattle guards on the sides of its roads, where the same passed through, along, or adjoining inclosed or cultivated fields or uninclosed lands, and, if it did not, making it liable in double the amount of damages to animals caused thereby, was assailed as in conflict with the fourteenth amendment, on the same grounds urged in the present case, namely, that it deprived the defendant of property without due process of law, so far as it allowed a recovery of damages for stock killed or injured in excess of its value, and also that it denied to the defendant the equal protection of the laws, by imposing upon it a liability for injuries committed which was not imposed upon other persons. But the court said that authority for requiring railroads to erect fences on the sides of their roads, so as to keep horses, cattle, and other animals from going upon them, was found in the general police power of the state to provide against accidents to life and property in any business or employment, whether under the charge of private persons or of corporations; that in few instances could that power be more wisely or beneficently exercised than in compelling railroad corporations to inclose their roads with fences having gates at crossings, and cattle guards; that they are absolutely essential to give protection against accidents in thickly settled portions of the country; that the omission to erect and maintain them, in the face of the law, would justly be deemed gross negligence; and that, if injuries to property are committed, something beyond compensatory damages might be awarded in punishment of it. Referring to the rule which prevails of allowing juries to assess exemplary or punitive damages where injuries have resulted from neglect of duties, the court said: ‘The statutes of nearly every state of the Union provide for the increase of damages where the injury complained of results from the neglect of duties imposed for the better security of life and property, and make that increase in many cases double, in some cases treble, and even quadruple, the actual damages. And experience favors this legislation as the most efficient mode of preventing, with the least inconvenience, the commission of injuries. The decisions of the highest courts have affirmed the validity of such legislation. The injury actually received is often actually so small that in many cases no effort would be made by the sufferer to obtain redress if the private interest were not supported by the imposition of punitive damages.’ And as to the objection that the statute of Missouri denied to the defendant the equal protection of the laws, the court said that it made no discrimination against any railroad company in its requirement; that each company was subject to the same liabilities, and from each the same security was exacted by the erection of fences, gates, and cattle guards when its road passed through, along or adjoining inclosed or cultivated fields or uninclosed lands; and that there was no evasion of the rule of...