Blair v. Milwaukee & Prairie du Chien Railroad

Dixon, C. J. Section one of the act approved March 30, 1860 (Laws of 1860, ch. 268), is an almost literal transcript of section 44 of the general railroad act of New York of 1850. It was first passed in that state in 1848, and was under consideration in the Court of Appeals in Corwin v. The New York & Erie Railroad Co., 13 N. Y., 45. I agree to the opinions of the judges in that case, and especially to that expressed by Judge Denio, that it was not enacted for the paltry purpose of determining who should bear the pecuniary burthen of building and maintaining division fences, as between railroad companies [258] and the adjoining proprietors of land, nor to Ex the liability of such companies for injuries occasioned to domestic animals before such fences should be built; but that the great object of its enactment was the increased safety of the lives and limbs of passengers which would be secured by a strict observance of its provisions. Experience had demonstrated that of the multiplicity of most appalling accidents happening from this mode of carriage, by far the greater number arose from obstructions caused by cattle and other animals coming upon the track. Experience had likewise shown that it was entirely insufficient for the protection of the public, to leave the building and maintaining of those fences, so as to prevent such intrusion upon the track, to the sense of duty or interest of the multitude of proprietors of land adjoining our long lines of railroad. To remedy this evil and insure the safety of the traveling public, so far as possible, in this respect, the act in question was passed, making it the sole and absolute duty of all railroad companies to fence and provide their roads with suitable cattle guards. This object is manifest. The legislature declare it in so many words to be 11 to prevent cattle and other animals from getting on to such railroad. ’’ It is not probable that any doubt could have arisen as to the proper construction of the act, had the last clause been omitted. That clause provides that until such fences and cattle guards shall be duly made, each railroad company, its agent &c., shall be liable for all damages which shall be done by the agents or engines to cattle, horses, or other domestic animals thereon. It is observed by Justice Paine, in McCall v. Chamberlain, 13 Wis., 639, that the addition of these words does not vary the liability of the companies. However this may be, I think Judge Denio is undoubtedly correct when he says that this provision was introduced as one method of securing the main object of the act, to wit, the protection of the lives of persons traveling by railroad. With this understanding of the statute there can be no ques [259] tion about the liability of the railroad company in this case. There was no negligence or want of care on the part of the plaintiffs, contributing to the injury. The accident occurred and the injury resulted solely and exclusively from the failure of the company to perform a positive and unqualified duty imposed by statute. The action rests on a public obligation to which the company is subject for the benefit of the public. The omission of the company to fence its road must be regarded as in the highest degree negligent; and by such omission the company necessarily assumes responsibility for all damages which may ensue from that cause.. Any person, therefore, who without fault on his part, is injured from such cause, may recover from the company for the damages sustained, without any other proof of negligence on the part of the company. Hence it becomes wholly unnecessary to consider any of the other numerous questions of negligence on the part of the company, raised in the case and argued at the bar. Sufficient unto the day is the evil thereof. The other questions will not be considered. It may be thought that something should be said of the power of the legislature to impose the duty of erecting and maintaining fences upon the railroad companies, when before the act, in some instances at least, the burthen of erecting and maintaining such fences rested upon the proprietors of adjoining lands. For the plaintiffs it is contended that the power exists under section 1 of article XI of the constitution, by which the legislature is authorized to alter or repeal all general laws or special acts by which corporations are created under that section. I do not think it is necessary to resort to that section of the constitution to sustain the act in question. It seems to me to be essentially a police regulation, and as such entirely within the general scope of legislative authority upon that subject. It seems to me that without that clause in the constitution, the legislature might, from time to time as the public exigencies require, alter or modify the laws in this respect, [260] leaving it to tlie railroad companies and the adjoining proprietors to settle the question of pecuniary burthen or compensation between themselves, the former having a right of action against the latter in all cases where the latter are primarily bound to, but do not, erect and maintain fences as required by the statute. I have no doubt of the constitutionality or the wisdom and propriety of th,e statute. By the Court. — Judgment affirmed. Downer, J., did not sit in this case. On a motion for a rehearing, the defendant’s counsel argued that railroad companies in this state are not bound to fence in their depot grounds, or highway or street crossings, and cited 31 Ill., 304; 6 Ind., 141; 8 id., 402; 20 id., 231. 2. That the case having been decided here upon a point repudiated by the circuit judge, the judgment should still be reversed on account of the admission of incompetent evidence in the court below upon the questions there made — evidence tending to affect the minds of the jury in a manner unfavorable to the defendant, and thus increase the damages. 21 Barb., 496; 19 N. Y., 299; 1 Coms., 521; 11 Wis., 374; 8 Barb., 533; 32 id., 25; 1 E. D. Smith, 619; 20 N. Y., 472; 42 N. H., 100. Dixon, C. J. We had not supposed, before reading the argument in support of this motion, that it could by any ¡Dossibili-bility be inferred from the language of the foregoing opinion, that the act of 1860, requiring railroad companies to fence their roads, was, or was to be, so construed as to require such companies to obstruct public highways by fences at the crossings, nor to fence their depot grounds. It is, however, insisted that the “opinion is too broad,” and that “it should be so qualified as to hold that the company are not required to fence in their depot grounds or highway or street crossings The words in italics are those which are italicised by counsel. We had supposed that the opinion was to be read in connection with the statute, and with a view to the point under [261] consideration. By the first section of the act, depot grounds are expressly excepted, and highway crossings by the strongest possible implication. Express provision is made for the construction and maintenance of cattle guards at all highway crossings, to prevent cattle from getting on to railroads from the highway. To obviate these most unexpected apprehensions of counsel, we will say, and say emphatically, that there is not the slightest disposition on the part of the court to disregard the plain provisions of the statute in either of these particulars. See Bennett v. Chicago & Northwestern Railway Co., 19 Wis., 145. As to the place of the accident being within the depot groxinds of the company at Stoughton, it seems to us, after a careful consideration of the testimony, that there is no ground for saying that it was. It was out upon the main line of the road, where there is but a single track, several hundred feet beyond the switch, and beyond where the cattle guard now is. It is an admitted fact that the same was fenced by the company as part of the main line shortly after the accident in question, and that it has so remained ever since. And although long trains, in switching, sometimes run out to the place of the accident, still it is clearly shown that there is and was no practical objection to its being fenced. We do not think, under the circumstances, that it can be considered as part of the depot grounds. Again, we are urged to consider and decide the other numerous questions of real or supposed negligence on the part of the company, concerning which much evidence was given at the trial; and again we repeat that, one conclusive ground of liability being established against the company, we can see no reason or propriety in our considering the others. Whether any of the testimony upon those others was improperly received or not, is wholly immaterial, since it only affected the question of liability, and not the amount of damages. By the Court. — Motion denied.