Liddle v. Keokuk, Mt. Pleasant & M. R. R.

Wright, J. 1. railroads : Btock'injured.liabfe under act of 1862. This case involves a construction of section 6, chapter 169, Laws of 1862 (p. 197). And, though this section has frequently received a construction at our hands, the point here made is new. The statute is, that any railroad eompany hereafter running or operating its road in this State, and failing to fence, etc., shall be absolutely liable to the owner of any live stock injured, etc. In case the company thus liable shall neglect or refuse to pay the value after thirty days’ notice, etc., it shall be held for double the value, etc. Was the lessee, “in possession of and running said road,” under the agreed facts, liable, equally with the company ? Our opinion is that the statute will not warrant this construction. The language is clear, plain and fairly susceptible of but one meaning. The law does not require a lessee to fence the road, nor make him liable for injuries to property if he does not. Giving it the most liberal construction, keeping in view the object and spirit of the entire chapter, we still think it would require at our hands the clearest judicial legislation, to extend it so as to cover plaintiff’s claim. It is the company that has the power and right to fence — the company organized under the general incorporation act — and it is this voluntary association, possessing the power to protect itself, which is made liable for a failure to comply with the implied, not express, requirements of the statute. A lessee’s term may continue for one day, one month or one year. 2. —- ne^iigence o es In case of negligence of his employees, or of his own, in the particular case, he might be liable. The liability of the company is absolute, not depending Up0n question 0f negligence, provided the loss occurred by reason of the want of such fence. It was competent for the legislature to make any one liable [380] criminally for running a train on a road not fenced, or to make lessees and employees responsible for stock killed or injured thereon, hut for reasons doubtless satisfactory and reasonable, the language of the act limits the liability to the company. And there would be as good ground for extending it to employees, the engineer and conductor, as to a lessee. We do not say that the law making power might not more consistently include the lessee than the employee, nor that this might not he done with much consistency, hut what is meant is, that as the law now stands there is no more warrant for including the one than the other. If the killing was the result of the willful act of the appellee, a different question would arise, and the case of Russell v. Harby (20 Iowa, 219), cited by appellant, would be applicable. Nothing of this kind appears. 3- — liability of individual operators. We have said that it is the oomjpa/ny — a company organised, etc., which is made liable. If a ° ' ’ ..... case should occur where one or more individuals, without a corporate existence, should build a road, or should run and operate it as their own, having right to fence, and under the like liability, we should not hesitate to hold that they would be within the spirit, if not the very language, of the act. But a lessee comes within neither the letter nor spirit. Affirmed.