New Deemer Mfg. Co. v. Kilpatrick

92 So. 71, 129 Miss. 268

Opinion

Ethridge, J.,

delivered the opinion of the court.

The appellee was plaintiff in the court beloAV, and filed a suit against the appellant, a lumber manufacturing company,.for damages inflicted upon the plaintiff by operating its logging road through the plantation of the plaintiff and failing to properly construct stock gaps at the point of entry and point of exit, said line passing through the plaintiff’s pasture, also bis failure to construct a suitable crossing for a plantation road, bringing suit for the statutory penalty contained in the chapter on railroads and also for damages incurred by the plaintiff by cattle getting out of the pasture and depredating upon his growing crops, and also for the expenses incurred in guarding the cattle in the pasture to prevent their going out, making a sum total of seven hundred and fifty dollars statutory penalty, six hundred dollars actual, damages, and asking for punitive damages the sum of one thousand .dollars.

The proof for the plaintiff showed that the defendant company secured a right from the plaintiff to build its logging road, operated over rails and ties by steam locomotive and logging cars, and that in passing through his premises the defendant failed to construct cattle guards, or stock gaps, at the point of entry and point of passing through his premises, and also that the defendant failed to construct and maintain a suitable plantation road crossing. The plaintiff’s testimony showed actual damages, and also that there were no stock gaps constructed, and that there was a long delay in constructing a crossing for a plantation road.

The defendant requested and was refused an instruction informing the jury that it was not liable for the statutory penalty for a failure to erect cattle gaps, and also asked and was refused an instruction informing the jury that the defendant was not liable for a statutory penalty for a failure to make a plantation road. The plaintiff Avas given an instruction that it'Avas the duty of the defendant to maintain and construct-necessary, proper, and suitable crossings over its track for necessary plantation roads, and if the jury believe from the testimony that the defendant’s line of railroad crossed plaintiff’s plantation, and that it failed and neglected to construct and maintain convenient crossings over its road track, then the jury should find for the plaintiff the sum of tAvo hundred and fifty dollars statutory penalty. The plaintiff also secured an instruction that, if the defendant failed to construct necessary guards and gaps where its line entered land of the plaintiff, then they should find for the plaintiff the statutory penalty of two hundred and fifty dollars for one gap for each line.

The testimony for the defendant tended to show that necessary and proper stock gaps were properly constructed and that a crossing for a plantation road ivas built when requested by plaintiff. The jury returned a general verdict for two hundred and fifty dollars, upon which judgment was entered, and from which judgment this appeal is prosecuted.

The question presented by the appellant for decision is whether the lumber company, operating a logging road on tracks, with locomotives and cars, is subject to the statutory penalties contained in the chapter on railroads. Section 4058, Code of 1906 (section 6686, Hemingway’s Code), reads as follows:

“It is tli.e duty of every railroad company to construct and maintain all necessary or proper stock gaps and cattle guards where its track passes through inclosed land, and to make and maintain convenient and suitable crossings over its track for necessary plantation roads. For any failure so to do, the railroad company shall be liable to pay two hundred and fifty dollars, to be recovered by the person interested. A person owning or having an interest as cropper or tenant in land in said inclosure shall have a right of action under this section, whether the land of such person is entered or traversed by said track or not; and this section shall apply to all inclosed land, whether said land is or may be situated in a county or district where the stock law is or may be in force or not. But such penalty shall not be cumulative, and only one recovery shall be had for each failure.”

Do the words “every railroad company” embrace logging-roads, similar to railroads in construction, over which are operated locomotives and cars, or does the term “railroad” means the general commercial railroads, carrying persons and property for hire known as common carriers?

Section 1594, Code of 1906 (section 1361, Hemingway’s Code), under the head “Railroads,” reads as follows: “Every person, firm, association of persons or company, whether incorporated or not, who shall own or operate a railroad as a common carrier.”

Section 4889, Code of 1906 (section 7624, Hemingway’s Code), provides that the track of every railroad which carries persons or property for hire is a public highway, etc. A similar provision is found in section 184 of the state Constitution. Section 198 of the Constitution provides that every employee of any railroad corporation shall have the same rights and remedies for any injury suffered by him from the act or omission of the said corporation or its employees as are allowed by law to other persons not employees, where the injury results from the negligence of a superior agent or officer, or of a person having the light to control or direct the services of the party injured, etc. In construing this latter section this court, in the case of Bradford Const. Co. v. Heflin, 88 Miss. 314, 42 So. 174, 12 L. R. A. (N. S.) 1040, 8 Ann. Cas. 1077, in discussing the meaning of the term “railroad company,” as used in this section, used the following language:

“The well-known usual powers granted in charters for construction companies are wholly different from those usually granted to railroad corporations properly known as such — chartered as such. It is so exceedingly plain that the Bradford Construction Company is not a railroad corporation that that matter cannot be seriously discussed, and it must be stated that learned counsel for plaintiff do not so insist. They hesitate, of course, to claim that, as chartered, it is a railroad corporation; but their ingenious insistence is that in this particular case the Bradford Construction Company is, while operating the train in question, "under the circumstances shown in the record, to be treated as if it were a railroad corporation, within the meaning of said section 193, or, to put it a little differently, their precise contention is, since, as they say, the Bradford Construction Companj- was doing work which was railroad work — precisely the same sort of work in all respects as to danger and otherwise, which the Gulf & Ship Island Railroad would have done if it had been constructing this track — that therefore, looking to the nature of the employment, the dangerousness of the work being done by employees handling a train on the track, etc., the Bradford Construction Company is to he treated, in this instance, as if it were a railroad corporation. If this test were adopted, undoubtedly every logging railroad, every railroad running to a mine, every railroad of whatever size or character, owned or operated by any sort of partnership, association of persons, or even by any private individual, would necessarily have to be held as a railroad corporation, within the meaning of said section 193, merely and only because the nature of the work done by its employees was of a like sort of dangerousness with that jierformed jyy the employees of railroad corporations proper. No such contention can possibly be sustained by any true reasoning, regard being had to the history of our said section 193-The argument is rather one for what the said section 193 of the Constitution ought to have declared the law to be than what it did declare the law to be.”

This opinion is too lengthy to quote from on this subject in detail, but a careful reading of the case shows clearly the distinction between railroads and logging roads and similar roaSskoperating locomotives for purely private purposes. \

Again, this court dealt with the distinction in construing the saíne section líí)3 of the Constitution, showing that the terms “railroads,” ' as used in this section, embraces only railroads proper which carry freight and passengers, and does not include logging or mining railroads. Givens v. So. Ry. Co., 94 Miss. 830, 49 So. 180, 22 L. R. A. (N. S.) 971. In Gibbs v. Drew, 16 Fla. 147, 26 Am. Rep. 700, the .Florida supreme court,‘in discussing the meaning of the word “railroads,” says: “As the term "highway’ imports in law a road, the use of which is in the public, so the legal signification of the term "railroad’ is not only a road or way on which iron rails are laid, but a road as incident to the possession or ownership of which important franchises and rights affecting the public are attached. This is unquestionably one of its significations.”

And again, at page 702 of the American Reports (16 Fla. 151), the court says: “Our conclusion is that a railroad is a public work, the possession of which is attended with the right and duty to use and employ the franchises granted by the sovereign in connection with and as appurtenant to it.”

There are many conflicting definitions of the term “railroad,” and after all the terms is to be construed with reference to the general statutes using the term. The provision imposing statutory penalties is contained in the chapter on railroads; and the chapter on definitions and rules, as well as the other sections referred to, shoAV that the penalties were intended to be applied to commercial railroads. The sections are penal, and are not to be extended by construction. In other words, they are to be strictly construed, and are not to be extended by implication or construction. Of course, a person using a logging railroad would be under duty to construct it with due regard for the interests of people whose plantations they cross, and in its operation it would have to be operated with due regard to the rights of other persons; but the damage's for which they are responsible are actual damages)"and in proper cases for punitive damages, but are noj/subject to the penalties imposed in the statute above cited. We cannot say that the giving of the instructions for the plaintiff did not contribute to the verdict. Indeed, the verdict may have been founded upon one of those statutory penalties.

For the error of giving, plaintiff' the instructions authorizing the recovery of the. statutory penalties, and for the error of refusing the defendant an instruction informing the jury that it ivas not liable for statutory penalties, the judgment will be reversed, and the cause remanded for a', new trial in accordance with this opinion.

Reversed and remanded.