Bulkley v. New York & New Haven Railroad

Ellsworth, J. The principal question in this case is one about which we are entirely agreed, to wit, that the third section of the act of. 1850 applies to the defendants’ road, although they were incorporated prior to the passage of the act. Whether we consider the language of the act or its spirit and object, we are satisfied that it must be so understood and applied; and since the defendants’ charter is subject to alteration, amendment and repeal, at the pleasure of the General Assembly, there does not seem to be the slightest ground for an objection to this conclusion. It is not a case of the taking away of vested and perfected rights; nor is the statute an ex post facto one, nor one having a retro-active effect. It relates to the future regulation of railroads generally. It provides that all railroads shall thereafter have suitable cattle-guards, unless positively excused by the railroad commissioners, and is obnoxious to none of the objections urged against retrospective statutes, and to no other conceivable objection. Something may be learned, too, with regard to the intent of the legislature, by looking at other parts of the statute. The first and second sections speak of railroad companies which shall thereafter be incorporated, while the third section omits this qualification, and declares that all railroad companies, unless positively excused by the commissioners, shall make and maintain suitable cattle-guards. And, we ask, why should not all be required to do it if any of them are? Why should any distinction be made, when all are alike subject to public control, and alike need to be regulated for the public good ? It is said that if we so apply the third section of the act, we make it inconsistent with the earlier act of the same session on the same subject. So we shall in any event, for the lat [487] ter is meant to be more comprehensive than the former; and on this ground we are doubtless to account for the double action of the same legislature on this subject. In the first, it is provided that all railroad companies shall make suitable cattle-guards, whenever ordered to do so by the railroad commissioners; in the second, all railroad companies are required to construct them in all cases where they are not positively excused by the commissioners. Giving then this third section the application to the defendants which we do, and which the superior court did, there seems to be very little left for our consideration, for the jury have found that there was no want of care on the part of the plaintiff which conduced to the injury sustained by him, and that it was attributable to the neglect of the defendants to provide the cattle-guards required by the act of 1850. The defendants asked the court to charge the jury, that, upon certain admitted facts which are detailed in the motion, the plaintiff’s cows were to be regarded as suffered to go at large, contrary to the act of 1855, and that so the plaintiff was in fault, and could not recover. We are not satisfied that the defendants could make a question of law on these facts by detailing them as they have done. It appears to us to be the mere recital of evidence which conduces to prove the fact in dispute, and not a question of law or principle for the court. But, however this may be, we think the judge in his charge took a correct view of the facts, and left the proper question upon them to the consideration of the jury. The defendants have no reason to complain that the evidence which they offered to prove that the railroad commissioners had entertained or expressed an opinion that cattle-guards were not necessary, at the place where these cattle entered upon the road, was held not to be conclusive; it was scarcely admissible, and certainly nothing more. A new trial is not advised. In this opinion the other judges concurred; except Sanford, J., who having tried the case in the court below, did not sit. New trial not advised.