Union P. Ry. Co. v. Arthur

• Decision Date: 09 May 1892
• Citation: 2 Colo.App. 159,29 P. 1031
• Parties: UNION PAC. RY. CO. v. ARTHUR.
• Court: Colorado Court of Appeals

29 P. 1031

2 Colo.App. 159

UNION PAC. RY. CO. v. ARTHUR.

Court of Appeals of Colorado

May 9, 1892

Appeal from district court, Park county; JOHN CAMPBELL, Judge.

Action by Edward P. Arthur against the Union Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Teller & Orahood, for appellant.

REED J.

Appellee brought suit for damages caused by fire alleged to have been set out by an engine of appellant resulting in the destruction of grass and hay in the stack on the land of appellee through which the road was operated. The statute under which the action was brought is as follows (Gen.St. § 2798, p. 812:) "That every railroad company operating its line of road, or any part thereof, within the state, shall be liable for all damages by fire that is set out or caused by operating any such line of road, or any part thereof, and such damages may be recovered by the party damaged, by the proper action in any court of competent jurisdiction." The case was tried in the district court to a jury resulting in a verdict, and judgment against the appellant for $610, from which this appeal was prosecuted. The case is ably presented by the counsel of appellant, upon two propositions: First, that the statute "is unconstitutional and void, being in violation of the constitution of Colorado, *** and of the constitution of the United States, *** in that, in the form of a money judgment it deprives persons of property without due process of law;" second, that "the plaintiff was guilty of contributory negligence in respect to the stack of hay burned." Some 20 pages of printed brief and carefully prepared argument are devoted to sustaining the first proposition. The case of Railway Co. v. De Busk, 12 Colo 296, 20 P. 752, is ably reviewed and criticised. The argument was addressed to and filed in the same court, (the supreme court,) probably with the view of the overruling or modification of the decision in that case. The case having been transferred by the supreme court to this court, and the opinion in that case, clearly and unequivocally asserting the constitutionality of the law, remaining authoritative the question is not open to review in this court, and will not be discussed. The statute in question seems to have been based upon the theory that, with modern mechanical appliances and due care, railroads could be so operated as to render the setting out of fires by locomotives impossible, and that the communicating of fire to adjacent combustible material was to be regarded as negligence per se, eliminating all questions of negligence or care which were fundamental, and controlled the right to recover at common law. Whether such theory was correct, and care and modern mechanical appliances would absolutely prevent and render the escape of fire impossible, we are not informed. If such is the fact, there can be no question of the justness of the statute or the wisdom of the legislature in enacting it. The utmost skill and care should be required, and all modern, practicable, mechanical devices employed for the protection of property; more especially should this be the case where climatic conditions are such as to greatly enhance the danger; but if, on the other hnad, the absolute control of fire is not within the power of the company or its operators, the statute is, at least, harsh and oppressive. The right to operate a railroad being conferred, and a franchise granted, the people of the state have a right to exact all possible care in its management, and by law compel due attention to private rights of persons and property. By the statute under consideration, the law of control and indemnity for loss has been carried to the very verge of constitutional legislation. By it only two questions are left for determination--First, the origin of the fire; second, the amount of damage. The question of care or negligence in operating the road not being a factor, and there being no law requiring individuals along the line of the road to use any precautions or perform any acts to prevent the occurring of fires, we do not see how, under the circumstances of this case, or under any circumstances where the loss occurs by fire,...