Tex. Cent. R'Y Co. v. Childress

• Decision Date: 12 May 1885
• Docket Number: Case No. 5571.
• Citation: 64 Tex. 346
• Parties: THE TEXAS CENTRAL R'Y CO. v. A. W. CHILDRESS.
• Court: Texas Supreme Court

64 Tex. 346

THE TEXAS CENTRAL R'Y CO.

v.A. W. CHILDRESS.

Case No. 5571.

Supreme Court of Texas.

May 12, 1885.

APPEAL from Bosque. Tried below before the Hon. Jo. Abbott.

This was a suit by A. W. Childress against the Texas Central Railway Company for damages for killing a cow of plaintiff's by defendant's engine. There was a judgment in the justice's court for plaintiff for $40 and costs, from which defendant appealed to the district court of Bosque county, the appeal bond being filed on July 18, 1883.

The case was tried in the district court on the 26th day of August, 1884, and plaintiff (on an agreed statement of facts) recovered a judgment for $40 and costs.

Alexander & Winter, for appellant, cited: Bethje v. H. & C. T. R'y Co., 26 Tex., 604;Zeigler v. Railroad Co., 58 Ala., 596; R. S., art. 4245.

No briefs on file for appellee.

WILLIE, CHIEF JUSTICE.

Article 4245 of our Revised Statutes reads as follows: “Each and every railroad company shall be liable to the owner for the value of all stock killed or injured by the locomotives and cars of such railroad company, in running over their respective railways, which may be recovered by suit before any court having competent jurisdiction of the amount. If the railroad company fence in their road, they shall only then be liable in cases of injury resulting from the want of ordinary care.”

It is urged by the appellant's counsel that this article is unconstitutional, unless we so construe it as to allow a railroad company to show in its defense, when sued for the value of stock killed upon an unfenced portion of its track, that all necessary diligence was used by the employees of the company to prevent the accident. Otherwise, it is said, the company is deprived of property out of the due course of the law of the land. Whether this would be the effect of a statute which contained only such a provision as is found in the first sentence of the above quoted article, it is not necessary for us to determine. In Alabama it has been held that a statute which provided that railroad companies should be liable for all damages to live stock caused by locomotives or railroad cars was unconstitutional. Zeigler v. Railroad Co., 58 Ala., 594. But that statute did not give these companies the right to protect themselves by fencing their tracks. All parts of article 4245 of our Revised Statutes must be construed in connection, and thus construed, railroad companies are made liable for damages unless their road is fenced; in that case they are liable only in event of the want of ordinary care. They are furnished by the statute with the means of protecting themselves from any greater liability than they are subjected to at common law, and if they do not avail themselves of this means they must abide the consequences. It cannot be doubted but that the legislature had the right to declare what should be a prima facie case against these companies, and what reasonable facts should amount to a defense by which it could be rebutted. The object of the statute was to compel them to fence their tracks, for the purpose of preventing damage to live stock, and for the still more important purpose of protecting the lives and limbs of passengers upon their trains. Blair et al. v. Railroad Co., 20 Wis., 254;Corwin v. Railroad Co., 13 N. Y., 45. It was an exercise of the police power, and as such has been universally upheld. Penn. R. R. Co. v. Riblet, 66 Pa. St., 164; Kansas Pac. R'y Co. v. Mower, 16 Kans., 573;Atchison & Neb. R. R. Co. v. Harper, 19 Kans., 529.

It may be exercised by a positive command to inclose with fences, enforced by a direct penalty; or by rendering the companies liable for damages resulting from a failure to perform this duty. Kansas Pac. R'y Co. v. Mower, supra; Dean v. Sullivan...