Wadsworth v. Union P. Ry. Co.

• Decision Date: 29 May 1893
• Citation: 18 Colo. 600,33 P. 515
• Parties: WADSWORTH v. UNION PAC. RY. CO.
• Court: Colorado Supreme Court

33 P. 515

18 Colo. 600

WADSWORTH v. UNION PAC. RY. CO.

Supreme Court of Colorado

May 29, 1893

Error to district court, Park county.

Action by Fred M. Wadsworth against the Union Pacific Railway Company for the killing of a horse. There was a verdict for plaintiff, and from an order setting the same aside and dismissing the action, he brings error. Affirmed.

The other facts fully appear in the following statement by ELLIOTT, J.:

This action was founded upon chapter 93, Gen. St. 1883, as amended by the act of 1885. Section 13 and amended sections 14 and 15 are as follows:

'Sec 13. That every railroad or railway corporation or company operating any line of railroad or railway or any branch thereof within the limits of this state, which shall damage or kill any horse, mare, gelding, filly, jack, jenny, or mule, or any cow, heifer, bull, ox, steer, or calf, or any other domestic animal, by running any engine or engines car or cars, over or against any such animal, shall be liable to the owner of such animal for the damages sustained by such owner by reason thereof.

'Sec 14. If the owner of any animal or animals so killed, or his or her authorized agent, shall make affidavit before some officer authorized to administer oaths that he or she was the owner or authorized agent of the owner, of the recorded brand found upon the animal or animals so killed or damaged at the time of such killing or damaging, and such persons shall, within six months after such killing or damaging, deliver such affidavit to the agent or any officer of such company or corporation, together with a certificate of his or her mark or brand, under official seal of any officer authorized by law to record such mark or brands, or shall make affidavit that the animal killed or damaged, as aforesaid, had no recorded mark or brand, and that he or she is the owner of such animal, describing it, and the corporation or company shall pay to such person delivering such affidavit and certificate, or such affidavit last aforesaid, as follows: Schedule. For American sheep, each, two dollars and fifty cents, ($2.50;) for Mexican sheep and goats, one dollar and fifty cents, ($1.50;) for Texas cattle, yearlings, twelve dollars, ($12.00;) for Texas cattle, two years old, seventeen dollars, ($17.00;) for Texas cattle, three years old, steers and cows, twenty dollars, ($20.00;) for Texas cattle, four years old steers or over, twenty-five dollars, ($25.00;) for American yearlings, fifteen dollars, ($15.00;) for American two years old, twenty dollars, ($20.00;) for American, three years old, steers and cows of all ages, twenty-eight dollars, ($28;) for American, four years old steers and over, thirty-four dollars, ($34;) for calves, ten dollars, ($10.) The above price, when paid, shall be payment in full. All Texas and Mexican cattle shall be considered as Texas cattle, and half-bloods shall be classed as American cattle. Thoroughbred cattle, milch cows, high-grade American cattle and grade bulls shall be paid for at their cash value. Thoroughbred sheep shall be paid for at their cash value; horses, mules, and asses shall be paid for at their cash value: provided, that no railroad company shall at any time be required to pay more than the market value of any animal killed or damaged, except as hereinafter provided. In all cases where such railroad company or corporation shall kill any of the stock mentioned in this act, and for which no price or sum is fixed, the owner or agent of such stock shall, after the filing, as aforesaid, of an affidavit and certificate of brand or affidavit of ownership, which affidavit shall contain a statement of class, grade, and value of such animal or animals, select some disinterested freeholder of the county where such killing book place, and shall notify such company or corporation of said selection, and such company or corporation shall, within three days thereafter, select some suitable person to act with person so selected, and the two so selected shall select a third, and the three so selected shall, without delay, proceed to appraise the value of the stock so killed or damaged, a majority of which three appraisers shall be sufficient to determine the same; and shall certify, under oath, such appraisement to an agent or superintendent of such company or corporation. In case such railroad or corporation shall refuse or neglect to appoint such appraiser, it shall be the duty of the justice of the peace nearest to the place where such stock was so killed or damaged to select three disinterested persons as appraisers, and administer to them an oath to honestly appraise the value of such stock, which appraisers shall, without delay, appraise and forward to such justice the result of such appraisement, which justice shall, within ten days thereafter, forward to an agent or superintendent of such railroad or corporation, a certificate of the result of such appraisement and the costs thereof; and such railroad or corporation shall, within thirty days after the receipt of such certificate, pay to the owner of the stock so killed or damaged, or to his or her authorized agent, the amount of such appraisement, together with all the costs, as aforesaid; and in all cases where the value of such stock is established by this act such company or corporation shall pay for such stock within thirty days after the delivery of the affidavit and certificate of ownership of brand, or affidavit of ownership of said stock, and, if any such company shall so fail to pay for such stock within thirty days after the delivery of such affidavit and certificate, such company shall be liable for double the value the appraised or schedule value of any such animal or animals, together with reasonable attorneys' fees, to be allowed by the court; and all persons selected or appointed under this section shall receive the sum of one dollar, to be paid by said railroad company or corporation, as hereinbefore provided: provided, that any railroad company having fenced its line of road, or any part thereof, or who may hereafter fence its road, or any part thereof, with a good and lawful fence, and put in good and sufficient cattle guards, and have put in gateways upon and across their said railroad, at the request of persons holding or owning land adjacent to said railroad, for the private use and accommodation of said adjacent owners or holders of land, said railroad company shall not be held liable for the killing or injury of any stock getting through said gateways, belonging to said party at whose request and for whose accommodation said gateway was made, unless such killing or injury was occasioned by the fault or negligence of said railroad company or its employes.

'Sec. 15. Every railroad company shall keep a book at the county seat of each county through which their road runs: provided, that said road runs or passes through the county seat. If such railroad does not pass through the county seat, then such book shall be kept at the principal town in the county through which it passes; and it is hereby made the duty of the said company to cause to be entered in said book, within fifteen days after the killing of any animal, a description, as nearly as may be, of such animal, its color, age, marks, and brands, and shall keep said book subject to the inspection of persons claiming to have had animals killed. Should any company fail to keep said book, or to file such notice, in the manner herein provided, or to enter therein such description of any animal killed, for a period of fifteen days thereafter, such company shall be liable to the owner of such animal to an amount twice the full value thereof.' Gen. St. 1883, p. 814; Sess. Laws 1885, pp. 304, 338.

Wadsworth was plaintiff below. The Unlon Pacific Railway Company was defendant. At the October term, 1887, the cause was tried by a jury, and verdict rendered in plaintiff's favor. A motion for a new trial was interposed by defendant, and at a subsequent term the following proceedings were had and entered of record: 'And afterwards, and on the 25th day of April, 1888, the same being one of the regular juridical days of the April, 1888, term of the said court, the motion for new trial aforesaid having been continued for further hearing to said last-named term, and having been argued in chambers meanwhile in vacation, and now coming on for final hearing and determination, and the court, being of the opinion that said motion should be allowed, but plaintiff electing to stand by his case as made, doth order and adjudge that, there being no evidence that defendant's engine or cars ran over or against the horse of plaintiff herein in question, said animal, upon the contrary, appearing to have run into or against the moving train of defendant's cars, this action of plaintiff, under the statutes counted upon therein, does not lie, and the same, the evidence, and the verdict herein notwithstanding, is dismissed at the costs of the plaintiff.' The plaintiff seeks a reversal of this judgment by writ of error.

Syllabus by the Court

1. Where the court announced that a new trial should be allowed, and plaintiff then declared that he elected to stand by his case as made, and thereupon the court dismissed the action, held, that the circumstances showed that all parties intended to treat the case as though the court had dismissed the action or granted a nonsuit on the ground that plaintiff had failed to 'prove a sufficient case for the jury.'

2. The Code of Civil Procedure contemplates that the substance, and not the mere form, of judicial proceedings shall be regarded in determining the rights of parties.

3. Where the evidence is conflicting, or of such a character that different conclusions may be reasonably drawn therefrom the...