Whitfield, J.,
delivered the opinion of the court.
The requiring a railroad corporation, incorporated before or after the act containing the requirements is passed, to construct and maintain ‘ ‘proper stock gaps and cattle guards, ” is a perfectly legitimate exercise of the police power of the state. [501]*501Nothing can be added to the completeness and conclusiveness of the reasoning of Chief Justice Bedfield on this precise question in Thorpe v. Railroad Co., 62 Am. Dec., 625. The same doctrine is expressly announced in Railway Co. v. Emmons, 149 U. S. (56 Am. & Eng. R. R. Cas., p. 169); Gorman v. Railroad Co., 72 Am. Dec., 220; 2 Morawetz on Private Corporations, §§ 1067, 1073; Trow v. Railroad Co., 58 Am. Dec., 191; Railroad Co. v. Tilton, 74 Am. Dec., 195; Railroad Co. v. Waldron, 88 Am. Dec., 100; Norris v. Railroad Co., 63 Am. Dec., 621; Wilder v. Railroad Co., 20 Am. Rep., 698; Railroad Co. v. Crider, 91 Tenn., 489 (19 S. W., 618); Grissell v. Railroad Co. (Conn.), 1 Am. St. Rep., 149, note (9 Atl., 137), with authorities; and Brentner v. Railway Co. (Iowa), 7 Am. & Eng. Ry. Cas., note at page 578 (12 N. W., 615). 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 travel on railroad cars. The methods to secure this are for legislative discretion.
Whether the same rule applies to farm crossings or not is immaterial here, because appellant’s road was not constructed till A.D. 1886, and the same provision, both as to cattle guards and farm crossings, found in § 3561, code 1892, is found in Laws 1884, p. 42.
On the cross appeal, cross appellants present two questions: First, whether the charge is correct wherein the court informed the jury that, if there should be a failure to construct and maintain “proper cattle guards,” the penalty of $250 could be recovered; or, for a failure to construct and maintain necessary crossings for plantation roads, the penalty could be recovered; but that, although there might be a failure to construct and maintain both ‘ ‘ proper cattle guards ’ ’ and ‘' suitable and convenient crossings for necessary plantation roads, ’ ’ whether one or more of each, provided all such cattle guards and crossings for plantation roads were on one tract of inclosed land, there could only be one penalty of $250 recovered. The language [502]*502‘ ‘ any failure so to do, ’ ’ under the strict construction applicable in case of penal statutes, we do not think equivalent to “ each failure to construct and maintain each cattle guard, ’ ’ etc. The instruction is correct. See Bissell v. Railroad Co., 67 Barb., 392; Railroad Co. v. Green, 27 Am. Rep., 718, and note.
The fact that the farm crossing was from land owned in fee to land used by appellees as tenants at will makes no difference. Section 3561 does not characterize the necessary title.
The second question presented by the cross appeal is as to the action of the court in denying plaintiff below the right to recover actual damages sustained by reason of cattle having gotten through a defective cattle guard and injured his crops. The cattle guards, in this case, were not constructed over the whole width of the right of way of appellant, but were merely pits under the roadbed, to which adjoining owners of land joined their fences. Testimony was introduced, through Moss and other witnesses, for defendant below, which, in part, went to show the actual condition of the cattle guards at the time of the injury complained of, and part of which consisted of the opinions of such witnesses as to how cattle guards should be constructed. For the first purpose the testimony was competent; for the second, incompetent. Railroad Co. v. Edmonds, 7 Am. & Eng. R. R. Cas., 547; Railroad Co. v. Ritz, 19 Am. & Eng. R. R. Cas., 611; Smead v. Railroad Co., 23 Am. & Eng. R. R. Cas., 241; 1 Rorer on Railroads, p. 643; 2 Rorer on Railroads, p. 1407, note 2. As said by the court in Rita's Case, supra, ‘ ‘ a j ury, coming as it does from the body of the people, many of whom are necessarily familiar with the habits of domestic animals, and with what is necessary to restrain them, is probably more capable of determining whether a cattle guard is proper and sufficient to prevent stock from crossing it than the man who is experienced only in building cattle guards. ’ ’ Cattle guards must be effectual to keep cattle from the track. Railway Co. v. Porter, 20 Am. & Eng. R. R. Cas., note at p. 448, with authorities. In Heskett [503]*503v. Railroad Co., 13 Am. & Eng. R. R. Cas., p. 551, the court say: “The term ‘cattle guards’ has no peculiar signification. In the sense in which it is employed in the statute, it means such an appliance as will prevent animals from going upon the land adjoining the right of way. A pit under the track does not meet the requirements of the law.. We think- a proper cattle guard, under the facts of this case,, imports a guard, or protection extending the whole width of the right of way.” Railroad Co. v. Manson (Kan.), 2 Pac., 800; Railway Co. v. Morrow (Kan.), 4 Ib., 87. The fact that landowners may join their fences to the cattle guard by permission of the railroad company, does not alter this. Even where, as in Railroad Co. v. Young, 13 Am. & Eng. R. R. Cas., p. 547, the landowner was, by statute, allowed to build the cattle guard at the expense of the railroad, which had failed to build it, it is said that the ' ‘ right of the landowner to enter upon the railroad’s right of way, and to in any manner interfere with it, is permissive only, without which interference would be a trespass” — a right which he “may exercise or not at his option, without liability to be charged with contributory negligence, if he elects not to exercise it.”- Of course, ' ‘ where the owner contracts himself to maintain fences [up to the cattle guard, for instance], this will be held to be an implied waiver of the obligation of the railroad company to do so:” See exhaustive note at p. 580 of Brentner v. Railway Co. (Iowa), 7 Am. & Eng. R. R. Cas.; 3 Wood on Railways, p. 1560. But no such agreement appears in this record. The cattle guard should extend the whole width of the right of way. It is otherwise not a cattle guard, but a cattle trap.
The theory of the court below in refusing to allow proof of actual damages must have been either that it was not competent to join in the same declaration a count for the penalty provided by § 3561, and one for actual damages, or that the penalty was in lieu of actual damages. Certainly in our state, where forms of action are abolished, at least in a case like this, [504]*504where the whole injury inflicted arose out of the same transaction- — the failure to maintain a proper cattle guard — the causes <of action are not improperly joined. In Hodges v. Railroad Co. (decided in February, 1890), 105 N. C., 170, it was held that a cause of action in tort and one in contract could be joined where the whole damage arose out of the same transaction. Wells v. Northhampton Co. (Mass.), 44 Am. & Eng. R. R. Cas., 494, note.
As to the second point, we have had more trouble.
Free access — add to your briefcase to read the full text and ask questions with AI
Whitfield, J.,
delivered the opinion of the court.
The requiring a railroad corporation, incorporated before or after the act containing the requirements is passed, to construct and maintain ‘ ‘proper stock gaps and cattle guards, ” is a perfectly legitimate exercise of the police power of the state. [501]*501Nothing can be added to the completeness and conclusiveness of the reasoning of Chief Justice Bedfield on this precise question in Thorpe v. Railroad Co., 62 Am. Dec., 625. The same doctrine is expressly announced in Railway Co. v. Emmons, 149 U. S. (56 Am. & Eng. R. R. Cas., p. 169); Gorman v. Railroad Co., 72 Am. Dec., 220; 2 Morawetz on Private Corporations, §§ 1067, 1073; Trow v. Railroad Co., 58 Am. Dec., 191; Railroad Co. v. Tilton, 74 Am. Dec., 195; Railroad Co. v. Waldron, 88 Am. Dec., 100; Norris v. Railroad Co., 63 Am. Dec., 621; Wilder v. Railroad Co., 20 Am. Rep., 698; Railroad Co. v. Crider, 91 Tenn., 489 (19 S. W., 618); Grissell v. Railroad Co. (Conn.), 1 Am. St. Rep., 149, note (9 Atl., 137), with authorities; and Brentner v. Railway Co. (Iowa), 7 Am. & Eng. Ry. Cas., note at page 578 (12 N. W., 615). 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 travel on railroad cars. The methods to secure this are for legislative discretion.
Whether the same rule applies to farm crossings or not is immaterial here, because appellant’s road was not constructed till A.D. 1886, and the same provision, both as to cattle guards and farm crossings, found in § 3561, code 1892, is found in Laws 1884, p. 42.
On the cross appeal, cross appellants present two questions: First, whether the charge is correct wherein the court informed the jury that, if there should be a failure to construct and maintain “proper cattle guards,” the penalty of $250 could be recovered; or, for a failure to construct and maintain necessary crossings for plantation roads, the penalty could be recovered; but that, although there might be a failure to construct and maintain both ‘ ‘ proper cattle guards ’ ’ and ‘' suitable and convenient crossings for necessary plantation roads, ’ ’ whether one or more of each, provided all such cattle guards and crossings for plantation roads were on one tract of inclosed land, there could only be one penalty of $250 recovered. The language [502]*502‘ ‘ any failure so to do, ’ ’ under the strict construction applicable in case of penal statutes, we do not think equivalent to “ each failure to construct and maintain each cattle guard, ’ ’ etc. The instruction is correct. See Bissell v. Railroad Co., 67 Barb., 392; Railroad Co. v. Green, 27 Am. Rep., 718, and note.
The fact that the farm crossing was from land owned in fee to land used by appellees as tenants at will makes no difference. Section 3561 does not characterize the necessary title.
The second question presented by the cross appeal is as to the action of the court in denying plaintiff below the right to recover actual damages sustained by reason of cattle having gotten through a defective cattle guard and injured his crops. The cattle guards, in this case, were not constructed over the whole width of the right of way of appellant, but were merely pits under the roadbed, to which adjoining owners of land joined their fences. Testimony was introduced, through Moss and other witnesses, for defendant below, which, in part, went to show the actual condition of the cattle guards at the time of the injury complained of, and part of which consisted of the opinions of such witnesses as to how cattle guards should be constructed. For the first purpose the testimony was competent; for the second, incompetent. Railroad Co. v. Edmonds, 7 Am. & Eng. R. R. Cas., 547; Railroad Co. v. Ritz, 19 Am. & Eng. R. R. Cas., 611; Smead v. Railroad Co., 23 Am. & Eng. R. R. Cas., 241; 1 Rorer on Railroads, p. 643; 2 Rorer on Railroads, p. 1407, note 2. As said by the court in Rita's Case, supra, ‘ ‘ a j ury, coming as it does from the body of the people, many of whom are necessarily familiar with the habits of domestic animals, and with what is necessary to restrain them, is probably more capable of determining whether a cattle guard is proper and sufficient to prevent stock from crossing it than the man who is experienced only in building cattle guards. ’ ’ Cattle guards must be effectual to keep cattle from the track. Railway Co. v. Porter, 20 Am. & Eng. R. R. Cas., note at p. 448, with authorities. In Heskett [503]*503v. Railroad Co., 13 Am. & Eng. R. R. Cas., p. 551, the court say: “The term ‘cattle guards’ has no peculiar signification. In the sense in which it is employed in the statute, it means such an appliance as will prevent animals from going upon the land adjoining the right of way. A pit under the track does not meet the requirements of the law.. We think- a proper cattle guard, under the facts of this case,, imports a guard, or protection extending the whole width of the right of way.” Railroad Co. v. Manson (Kan.), 2 Pac., 800; Railway Co. v. Morrow (Kan.), 4 Ib., 87. The fact that landowners may join their fences to the cattle guard by permission of the railroad company, does not alter this. Even where, as in Railroad Co. v. Young, 13 Am. & Eng. R. R. Cas., p. 547, the landowner was, by statute, allowed to build the cattle guard at the expense of the railroad, which had failed to build it, it is said that the ' ‘ right of the landowner to enter upon the railroad’s right of way, and to in any manner interfere with it, is permissive only, without which interference would be a trespass” — a right which he “may exercise or not at his option, without liability to be charged with contributory negligence, if he elects not to exercise it.”- Of course, ' ‘ where the owner contracts himself to maintain fences [up to the cattle guard, for instance], this will be held to be an implied waiver of the obligation of the railroad company to do so:” See exhaustive note at p. 580 of Brentner v. Railway Co. (Iowa), 7 Am. & Eng. R. R. Cas.; 3 Wood on Railways, p. 1560. But no such agreement appears in this record. The cattle guard should extend the whole width of the right of way. It is otherwise not a cattle guard, but a cattle trap.
The theory of the court below in refusing to allow proof of actual damages must have been either that it was not competent to join in the same declaration a count for the penalty provided by § 3561, and one for actual damages, or that the penalty was in lieu of actual damages. Certainly in our state, where forms of action are abolished, at least in a case like this, [504]*504where the whole injury inflicted arose out of the same transaction- — the failure to maintain a proper cattle guard — the causes <of action are not improperly joined. In Hodges v. Railroad Co. (decided in February, 1890), 105 N. C., 170, it was held that a cause of action in tort and one in contract could be joined where the whole damage arose out of the same transaction. Wells v. Northhampton Co. (Mass.), 44 Am. & Eng. R. R. Cas., 494, note.
As to the second point, we have had more trouble. It is true that the railroad was not bound, in the absence of statute, to construct and maintain cattle guards, or for damage resulting from not constructing and maintaining them. Dixon's Case, 61 Miss., 119. But, ordinarily, where the statute does not require the company to fence its road, one of the elements of damage awarded the landowner is the amount it would cost him to erect a fence, where the railroad runs through inclosed land. Now, where the statute, as here, does not require the railroad to fence its track, but to construct and maintain cattle guards at the points of entrance upon and exit from inclosed land, the cattle guards are meant to stand in lieu of the fence, the landowner fencing to the cattle, guards. And in such case, as in this case, the landowner is not awarded an amount for fencing, in 'the condemnation proceedings, and the railroad is exempted from liability arising from the absence of a fence, on the theory that the railroad will construct and maintain proper cattle guards; and hence, if it shall fail to construct and maintain cattle guards, as a result of which cattle get through and damage the crops of the landowner, the railroad fails in the duty imposed by law, and upon the perfect compliance with which duty only it is exempt from liability for such damage, and, by such failure, becomes responsible for such damages. The damages awarded in the condemnation proceedings are exclusive if the railroad, in the case stated, shall construct and maintain proper cattle guards; otherwise, the landowner may recover for such actual damages. As said [505]*505in Brewer v. Railroad Co., 113 Mass., p. ,56, “this is a cause of action wholly independent of the defendant’s liability for acts done within the authority conferred by the order of the commissioners [commissioners in condemnation proceedings]. The measure of compensation in such proceedings is the injury which was caused” by what was done “according to the authority given by the order of the commissioners. To this extent the corporation may claim the protection of the authority under which it acted, as against an action at common law. But for anything done in excess of that authority, or unskillfully or negligently done within it, to the special injury of the plaintiff, she may have her action of tort. The plaintiff would otherwise be without remedy. The sainé point is expressly ruled in the authorities collated in note at page 537 of Railway Co. v. Wachter (Ill. Sup.), 5 Am. St., and in Clark v. Railroad Co., 36 Mo., 220. And see, specially, Bott v. Pratt (Minn.), 23 N. W., 237, containing a critical review of the authorities, including Heeney v. Sprague, 11 R. I., 461. Otherwise, manifestly, where great actual damage was inflicted by failure to maintain proper cattle guards — no matter how many on one tract of inclosed land — only one penalty being recoverable for such failure, the plaintiff would be remediless, practically. ’ ’
We think the penalty, however, is a continuing one in this sense, that, though only one penalty of $250 can be recovered for the failure to construct and maintain proper cattle guards, no matter how many on one tract of inclosed land, up to the time of the first suit for such penalty, yet, such penalty may be recovered as often thereafter as other such similar instances of failure to construct and maintain proper cattle guards shall be shown after such suit. Railroad Co. v. Gill, 11 L. Rep., Annotated, p. 452. Parks’ Case, 13 Lea (Tenn.), 1, is by a vided court, Freeman, J., delivering, we think, the sound view. The railroad company, in other words, if, after one successful suit, it fails still to construct and maintain proper cattle [506]*506guards, shall be liable to such penalty again, and so on continuously till it constructs and maintains proper cattle guards.
These views sufficiently indicate the principles governing the new trial. This view in no way conflicts with the general rule that, where the statute gives a new right, and provides the remedy, such remedy is exclusive. That doctrine does not apply in the particular case at bar.
The judgment is affirmed on the direct appeal, but is reversed on the cross appeal, and the ccrnse remanded as to the cross ap-pella/nts claim for actual damages. 80 ordered.