Yazoo & M.V.R. Co. v. Harrington

• Decision Date: 05 March 1905
• Citation: 85 Miss. 366,37 So. 1016
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. JOHN L. HARRINGTON
• Court: Mississippi Supreme Court

37 So. 1016

85 Miss. 366

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. JOHN L. HARRINGTON

Supreme Court of Mississippi

March 5, 1905

FROM the circuit court of, second district, Coahoma county, HON SAMUEL C. COOK, Judge.

Harrington the appellee, was plaintiff, and the railroad company, the appellant, defendant in the court below. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

The suit was to recover damages to crops by the trespassing of stock, which plaintiff charged passed into plaintiff's field over a defective stock gap maintained on defendant's right of way at the point where the railroad entered plaintiff's enclosed lands, and, in addition, for the statutory penalty of $ 250 under § 3561, Code 1892. The case was tried in the lower court on an agreed statement of the facts, before the judge, a jury having been waived and resulted in a judgment for plaintiff for $ 850.

It was agreed as follows: "That at the points of entrance and exit to plaintiff's inclosed lands by the tracks of defendant's railroad the defendant had put in a Ross surface stock gap and cattle guard, which at the time of the injuries complained of were free from defects of construction and were in good condition and in proper repair; that said Ross stock gap or cattle guard is equal to any other surface cattle guard now in use by railroads, and is up to the highest standard of surface cattle guards used in the operation of railroads; that, over these surface stock gaps or cattle guards, stock, at different times, passed into plaintiff's inclosed land and upon his inclosed lands as described in his declaration, and committed injuries to his crops and lands as sued for; that the defendant and other leading railroads of the country are abandoning the old pit guards and replacing them with the Ross cattle guard, or some other surface guard of equal effectiveness, for the reason that experience in operating railroads has demonstrated that the surface cattle guard in use by defendant, while not as effective in turning stock, insures safety to the lives and limbs of the traveling public." In connection with the agreed statement of facts, and as part of same, some affidavits were incorporated, given by experts, to the effect that the surface cattle guards are not as effective in turning stock as the pit guard; that the pit guard is being abandoned by leading railroads because it is dangerous to the trains as compared with the surface guards, and has the tendency to imperil the lives of passengers and employes by derailments. It was further agreed that, if the court should decide in favor of plaintiff, judgment was to be rendered for him for $ 850.

It was stipulated in the agreement that the questions presented for decision were two: (1) Whether or not the Ross surface cattle guard is not a necessary and proper cattle guard, within the true meaning of § 3561, Code 1892. (2) If not a compliance with that section, whether or not said section is violative of the fourteenth amendment to the constitution of the United States, in that said section deprives the defendant of its property without due process of law--defendant's contention being that under the facts a necessary and proper cattle guard, within the purview of said section, is one that insures the safety of lives and limbs of the traveling public, although the same might not be as effective in turning stock as the pit guard; that to use the pit guard, which is more effective, but more dangerous to the lives and limbs of the traveling public, is not intended by said section, and, if that be true, then the same is a violation of the fourteenth amendment to the constitution of the United States, in that it deprives the defendant of its property without due process of law. Defendant's motion for a new trial was overruled.

Affirmed.

Mayes &amp Longstreet, and C. N. Burch, for appellant.

The question is sharply presented, whether where there is a conflicting interest like this, where one sort of cattle guard is better for the protection of the adjacent agriculturist from trespass by cattle, and where the other sort of cattle guard is better for the safety of the passengers and employes of the railroad, the railroad company has fulfilled its duty under the statute in preferring and employing the sort of cattle guard which is better for passengers and employes, but not so effective for the farmer.

The court will note that the agreed state of facts is that "the leading railroads of the country are abandoning the use of the old pit guard for the reason that experience in operating railroads has demonstrated that the surface cattle guard . . . insures safety to the lives and limbs of the traveling public."

The court will carefully note the exact language of the statute, which is as follows: "It is the duty of every railroad company to construct and maintain all necessary or proper stock gaps and cattle guards where its tracks pass through inclosed lands."

It is not vital, but it will be helpful to note that we are here presented with one of the instances in which the word "or," as employed in the statute, is to be read as if it were the word "and." The language of the statute is "necessary or proper stock gaps," meaning "necessary and proper stock gaps." This is obvious, because otherwise the use of the word "proper" is futile and meaningless; for no stock gap could be necessary, in the legal sense, without being at the same time proper.

What the statute means is that the stock gaps shall be necessary as to their location and proper as to their construction. Such has been the practical interpretation placed upon this statute in all of our previous stock gap decisions, in which the question has been treated as to whether a stock gap was or was not properly constructed. 2 Am. & Eng. Ency. Law, 333, title "And."

The error into which the court below fell in applying this statute consisted in treating the same as if the interest of the landowner was alone to be consulted. Such is not the law. Fort v. Chicago, etc., Ry. Co., 24 L. R. A., 657, 663; Railroad Co. v. Goset, 70 Ark. 431; Railroad Co. v. Vosburg (Ark.), 30 Am. & Eng. R. R. Cas., 1.

The principle above contended for, and fully set forth in the decisions cited, has been fully recognized by this court.

In Railroad Co. v. Spencer, 72 Miss. 491, speaking of stock gap legislation, this court said: "The purpose of such legislation is not merely to protect the property rights of the owners of cattle injured or killed, but to secure the safety of traveling on railroad cars."

In Railroad Co. v. French, 75 Miss. 939, the court said on p. 943 as follows: "But we have held that the statute requiring stock gaps and cattle guards to be erected and maintained when necessary and proper was designed not alone for the benefit of the landowner, but for the increased safety of the traveling public."

In Railroad Co. v. Anderson, 76 Miss. 582, the court said, in denying the right of the landowner to have an open lane at the place where he desired a crossing over the railroad track, with stock gaps and cattle guards at the expense of the company: "This would be burdensome to the company, and would, moreover, increase the danger to passengers, employes, and trains by leaving an open space on which live stock might congregate."

This court has fully recognized, therefore, the point for which we contend, which is, that these cattle guard and crossing matters are such that the traveling public are interested in them no less than the landowner.

The railroad company is, therefore, confronted with a predicament unavoidable by it, arising from the necessity of things. Here is one sort of cattle guard which is better for the landowner; here is another sort which is better for the traveling public and the train employes--better because it is safer. Can it be said that the company has disregarded the law which requires that the cattle guard shall be "proper" in its construction because it has seen proper to prefer the sort of cattle guard which is greater security to human life to that which gives greater security to crops? This would seem to be a question which should answer itself; but whether so or no, it is already answered judicially in the authorities cited above.

If the code section is so framed, and if it has the effect claimed for it here, that the company is mulcted in damages and subjected to penalties because...