Continental Improvement Co. v. Ives

Campbell, J. The questions in this case are not unlike those in the ease of the same plaintiffs against William H. Southwick. —Supra p. 444. But the injuries being of a different character from the damage recovered for in that case, the changes made from time to time in the railroad laws become material. In that case there was no dispute but that there had always been a responsibility for the destruction of cattle and other animals; but it is claimed that for other damages this has not been so. The court below held there was no liability under the law as it now stands for any damage which was shown to have happened in 1873, and confined the recovery to previous injuries. The repealing clause of the railroad law of 1873 expressly saves all previous rights and liabilities (L. 1878, p. 548-4); but questions are raised upon the application of some'of those laws. It is to be observed that the statutory duty of maintaining fences has never been changed. The only changes have been touching the extent of liability to respond in damages for the neglect. We see, therefore, no difficulty in sustaining the declaration as good without any specific reference to the statutes, so long as it has not been demurred to. There can be no practical difficulty in determining the admissibility of proofs by the laws in force at the time to which they refer, and the court below seems to have found none. Damages are given for injuries in 1868, 1870, 1871, and 1873. As to 1868, it is claimed the finding of facts is deficient in not showing the liability to have attached at that time. The finding shows the company began grading there in June, 1868; and it was held in Gardner v. Smith, 7 Mich. R., 410, that the liability attached as soon as the company [450] took possession for purposes of construction. The finding is therefore correct on its face, and the evidence supports it. It is claimed also that the findings for 1871 and 1873 cannot be maintained, because there were parts of both years in which there was no liability for the damages proved. But we find nothing in the bill of exceptions to indicate that any evidence for • those years was objected to, and it must be presumed that the finding does not cover any period during which there was no liability. There seems to have been no attempt to obtain a more specific finding, and errors are not to be presumed. We have therefore no occasion to discuss the statutes to find whether the construction set up by plaintiffs is right or not. It is also objected that the finding, does not declare specifically that the Grand Bapids & Indiana Railroad Company is a corporation owning and occupying the road in question, or coming' within the railroad laws, although it is found to be a corporation, and it is found also that it never built or maintained the fences required. It might be sufficient to say that this being a joint judgment in tort, and this error, if it be an error, not concerning the other defendant, there is no assignment of error which covers it. It is set up under the general assignment that the finding does not support the judgment. If good against either defendant, the error touching the other should have been more specifically pointed out. But the finding on this point "is that “ the Grand Bapids &' Indiana Bail-road” is located on the land, and "that grading was commenced on said railroad in the month of June, 1868; that the said Grand Rapids & Indiana Railroad Company has never built or caused to be built any fences,” etc. Inasmuch as the custom is universal to call railroads by the name of the company laying out and building them, we think such a statement cannot be misunderstood, and the defect should not be held a fatal omission when the sense is clear, and the bill of exceptions furnishes conclusive proof •by which it can be amended. [451] As the statute reaches all corporations occupying railways built under the general laws, and as there are no other railways but those under special charters of which the courts must take notice, the finding of occupancy by the Continental Improvement Company, as a corporation, brings it plainly within the law. , The remaining questions are unimportant. The judgment must be affirmed, with costs. The other Justices concurred.