Colorado § 40-30-103 - Liability of railroad company.

§ 40-30-103. Liability of railroad company.

Every railroad company operating its line of road, or any part thereof, within this state shall be liable for all damages by fires that are set out or caused by operating any such line of road, or any part thereof, in this state, whether negligently or otherwise. Such damages may be recovered by the party damaged by a proper action in any court of competent jurisdiction; but said action shall be brought by the party injured within two years next ensuing after it accrues. The liability imposed in this section shall inure solely in favor of the owner or mortgagee of the property so damaged or destroyed by fire, and the same shall not pass by assignment or subrogation to any insurance company that has written a policy thereon.

Source: L. 03: p. 404, § 1. R.S. 08: § 5512. C.L. § 2892. CSA: C. 139, § 78. CRS 53: § 116-11-3. C.R.S. 1963: § 116-11-3.

ANNOTATION

I. General Consideration.

II. Construction of Statute.

V. Rights of Insurer.

VI. Limitation of Actions.

I. GENERAL CONSIDERATION.

Law reviews. For article, "A Colorado Territorial Law Rises from the Ashes", see 52 Colo. Law. 24 (Nov. 2023).

Annotator's note. Cases material to this section decided prior to its earliest source, L. 03, p. 404, § 1, have been included in the annotations to this section.

This section applies to all cases where the fire results from the operation of a railroad. Denver & R. G. R. R. v. United States, 241 F. 614 (8th Cir. 1917).

This section is intended to provide an indemnity to owners against loss from fire caused by the operation of railroads. It was enacted to settle upon whom the loss should fall, and because of the peculiar manner in which railway companies use this dangerous element, it casts the responsibility of employing it on them. British Am. Assurance Co. v. Colo. & S. Ry., 52 Colo. 589, 125 P. 508 (1912).

The phrase, "whether negligent or otherwise", does not change the status of the railway company in relation to the owner in the least. The statutes eliminate all adjectives and differences as to the origin of the fire and exact but one condition, that is, that the fire was set out or caused by the operation of the road. If the fire originated in the operation of the road, it makes no difference how it otherwise occurred, the company is liable. British Am. Assurance Co. v. Colo. & S. Ry., 52 Colo. 589, 125 P. 508 (1912).

This section embodies entire law on railway liability for causing fires. See Rhinehart v. Denver & R. G. R. R., 61 Colo. 369, 158 P. 149 (1916); Denver & R. G. R. R. v. United States, 241 F. 614 (8th Cir. 1917).

This section takes away common-law action against railroads for negligence. Rhinehart v. Denver & R. G. R. R., 61 Colo. 369, 158 P. 149 (1916).

The United States, as a corporation or body politic, has no special privileges as a litigant. Its rights are no greater, no higher, no better, and no less than those of an individual. It is perfectly clear that, if an action had been brought by a private landowner after the prescribed two-year period, it could not be maintained under this statute, and the United States as the plaintiff is in no better position. Denver & R. G. R. R. v. United States, 241 F. 614 (8th Cir. 1917).

Appointment of appraisers. A party damaged need not avail himself of the provision as to the appointment of appraisers as a condition precedent to the right of recovery. Denver, T. & G. R. R. v. De Graff, 2 Colo. App. 42, 29 P. 664 (1892).

The value of articles lost by fire which have no market value may be established by evidence of their cost, use, and condition at the time they were destroyed. Union Pac. D. & G. Ry. v. Williams, 3 Colo. App. 526, 34 P. 731 (1893).

The value of an article for which there is no home market may be ascertained by deducting the cost of transportation from the price to be obtained in the nearest market. State Ins. Co. v. Taylor, 14 Colo. 499, 24 P. 333 (1890); Mouat Lumber Co. v. Wilmore, 15 Colo. 136, 25 P. 556 (1890); Union Pac. D & G. Ry. v. Williams, 3 Colo. App. 526, 34 P. 731 (1893).

II. CONSTRUCTION OF STATUTE.

This section is not subject to constitutional objection. The power to enact the law imposing fire liability includes the power to prescribe the conditions upon which the right of its enforcement may be acquired, and with reference to which the rights of all persons interested as owners, insurers or otherwise, should be determined. And this act is not subject to constitutional objection. Consumers' League v. Colo. & S. Ry., 53 Colo. 54, 125 P. 577 (1912); Rhinehart v. Denver & R. G. R. R., 61 Colo. 369, 158 P. 149 (1916).

This section is not to be condemned as class legislation. This section, being general in its terms and applying to all cases within its scope, is not to be condemned as class legislation. The circumstance that no provision is made for the protection of others interested in the property, e.g. lessees, is not important. Rhinehart v. Denver & R. G. R. R., 61 Colo. 369, 158 P. 149 (1916).

Such statutes are not penal but purely remedial in their nature; they apply to corporations which obtained their charters before as well as since their passage; and they should receive a liberal construction such as will justly promote their object. Union Pac. Ry. v. De Busk, 12 Colo. 294, 20 P. 752 (1888).

Such statutes are upheld as statutes of indemnity. Home Ins. Co. v. Atchison, T. & S. F. R. R., 19 Colo. 46, 34 P. 281 (1893).

Even if this section was a special law, it would not for that reason be invalid, since it is settled in this jurisdiction that the necessity for a special law is a legislative question. Brown v. City of Denver, 7 Colo. 305, 3 P. 455 (1884); Carpenter v. People ex rel. Tilford, 8 Colo. 116, 5 P. 828 (1884); Rhinehart v. Denver & R. G. R. R., 61 Colo. 369, 158 P. 149 (1916).

The words "railroad companies" should be construed to mean any body, company, or association of persons, whether technically incorporated or not, engaged in the operation of railroads. Such was obviously the meaning intended by the general assembly and this meaning avoids the necessity of declaring the act unconstitutional. Whenever a word or phrase of an act is used in more senses than one, that sense is always to be preferred which will sustain and give effect to the act, rather than the sense which would render the act unconstitutional and void. Union Pac. Ry. v. De Busk, 12 Colo. 294, 20 P. 752 (1888).

This section is but a reenactment of ancient common law. The adoption of this section, making railroad companies liable for damages by fire caused by the operation of their locomotive engines, is but the reenactment pro tanto of the ancient common law for the better protection of property exposed to such unusual dangers. Such matters are peculiarly within the control of the local legislatures, and such laws may be enacted, changed, or repealed to suit the varied conditions and circumstances of the people. Union Pac. Ry. v. De Busk, 12 Colo. 294, 20 P. 752 (1888).

This section is a general statute and need not be pleaded. Denver, T. & G. R. R. v. De Graff, 2 Colo. App. 42, 29 P. 664 (1892).

The title of this section is sufficiently broad to sustain the provision limiting the liability of the railway company to the owner or mortgagee. Rhinehart v. Denver & R. G. R. R., 61 Colo. 369, 158 P. 149 (1916).

III. LIABILITY OF RAILROADS.

A. In General.

B. Negligence.

A. In General.

Under this section a railroad company is made absolutely liable for all fires occasioned by their operation of the road. Whenever a fire breaks out along the line it is assumed that it was set out by the company, and the injured party has little difficulty in convincing a jury of his right to recover. Denver & R. G. R. R. v. Morton, 3 Colo. App. 155, 32 P. 345 (1893); Rhinehart v. Denver & R. G. R. R., 61 Colo. 369, 158 P. 149 (1916); Denver & R. G. R. R. v. United States, 241 F. 614 (8th Cir. 1917).

Whether negligence entered into the cause or not. This section imposes upon railroad companies absolute liability for all damages from fire set out in the operation of their roads, whether negligence entered into the cause or not, and the only question to be determined in cases of this character is, did the railway company set out or cause the fire in the operation of its road, if so, the answer is that the railroad is liable. British Am. Assurance Co. v. Colo. & S. Ry., 52 Colo. 589, 125 P. 508 (1912).

The liability clause only reenacts the preexisting liability. British Am. Assurance Co. v. Colo. & S. F. Ry., 52 Colo. 589, 125 P. 508 (1912); Denver & R. G. R. R. v. United States, 241 F. 614 (8th Cir. 1917).

The liability imposed, while not limited in amount, is limited to parties to which it shall inure, and in order that there might be no question concerning his limitation as to parties, there was added the further proviso "and the same shall not pass by assignment or subrogation to any insurance company", etc. The use of this language does not embrace another subject different than the one covered by the act, but is rather to emphasize the limitation upon or attached to the liability created by the act. Golden Canal Co. v. Bright, 8 Colo. 144, 6 P. 142 (1884); Clare v. People, 9 Colo. 122, 10 P. 799 (1886); Dallas v. Redman, 10 Colo. 297, 15 P. 397 (1887); Edwards v. Denver & R. G. R. R., 13 Colo. 59, 21 P. 1011 (1889); In re Breene, 14 Colo. 401, 24 P. 3 (1890); Stockman v. Brooks, 17 Colo. 248, 29 P. 746 (1892); Catron v. Bd. of Comm'rs, 18 Colo. 553, 33 P. 513 (1893); People ex rel. Funk v. Wright, 30 Colo. 439, 71 P. 365 (1902); Bd. of Comm'rs v. Bd. of Comm'rs, 32 Colo. 310, 76 P. 368 (1904); Rhinehart v. Denver & R. G. R. R., 61 Colo. 369, 158 P. 149 (1916).

B. Negligence.

This section makes the railroad company liable unconditionally irrespective of any negligence on its part. Home Ins. Co. v. Atchison, T. & S. F. R. R., 19 Colo. 46, 34 P. 281 (1893).

This section eliminates question of negligence. This section is simply declaratory of the common law, except that it eliminates the question of negligence—which was at common law an important factor—and makes the liability absolute, "if the fire was set out or caused by operating any such line of road", regardless of the question of negligence. Union Pac. Ry. v. De Busk, 12 Colo. 294, 20 P. 752 (1888); Denver, T. & G. R. R. v. De Graff, 2 Colo. App. 42, 29 P. 664 (1892).

It is not necessary in an action under this section to show negligence on part of the railroad company in causing the fire. Union Pac. Ry. v. Arthur, 2 Colo. App. 159, 29 P. 1031 (1892).

The doctrine of contributory negligence cannot be invoked by the defendant in an action under this section. Union Pac. Ry. v. Arthur, 2 Colo. App. 159, 29 P. 1031 (1892); Union Pac. D. & G. Ry. v. Williams, 3 Colo. App. 526, 34 P. 731 (1893).

Allegations as to negligence state a cause of action under this section. Denver & R. G. R. R. v. United States, 241 F. 614 (8th Cir. 1917).

IV. EVIDENCE ESTABLISHING LIABILITY.

A. In General.

B. Origin of Fire.

A. In General.

Under this section an unaccepted offer to compromise is not admissible in evidence. Denver, T. & G. R. R. v. De Graff, 2 Colo. App. 42, 29 P. 664 (1892).

It is the duty of the court to nonsuit where the evidence does not warrant a verdict for the plaintiff. Tripp v. Fiske, 4 Colo. 24 (1877); Sullivan v. Chrysolite Silver Mining Co., 21 F. 892 (8th Cir. 1884); Union Pac. Ry. v. Sternberg, 13 Colo. 141, 21 P. 1021 (1889); Stratton v. Union Pac. Ry., 7 Colo. App. 126, 42 P. 602 (1895).

Verdict based on incompetent evidence should be set aside. Where there is no competent evidence upon which a verdict could have been predicated, and where it must have been the result of prejudice, it should be set aside. Denver, T. & G. R. R. v. De Graff, 2 Colo. App. 42, 29 P. 664 (1892).

Evidence as to condition of engine is admissible. In an action against a railroad company to recover damages for property destroyed by fire, testimony as to the condition of an engine belonging to defendant and which was shown to have passed on the track close to the place where the fire originated a few minutes before its discovery, by a witness who examined the engine a week or two weeks after the fire, is admissible and its exclusion is error. Crissey & Fowler Lumber Co. v. Denver & R. G. R. R., 17 Colo. App. 275, 68 P. 670 (1902).

Where engine is identified, evidence as to other engines causing fires is inadmissible. In an action against a railroad company to recover damages for property destroyed by fire, where the only engine that could have set the fire was identified, evidence of the setting out of fires at other times and places by other engines belonging to defendant should be excluded. Crissey & Fowler Lumber Co. v. Denver & R. G. R. R., 17 Colo. App. 275, 68 P. 670 (1902).

B. Origin of Fire.

The fact of the origin of the fire, like any other material fact, should be established. Denver, T. & G. R. R. v. De Graff, 2 Colo. App. 42, 29 P. 664 (1892); Crissey & Fowler Lumber Co. v. Denver & R. G. R. R., 17 Colo. App. 275, 68 P. 670 (1902).

The evidence required to establish the origin of a fire must be direct and connect the fire with the operation of the railroad, or the circumstances must be such as to preclude all probability of the fire having originated in any other way. Denver, T. & G. R. R. v. De Graff, 2 Colo. App. 42, 29 P. 664 (1892); Denver & R. G. R. R. v. Morton, 3 Colo. App. 155, 32 P. 345 (1893); Stratton v. Union Pac. Ry., 7 Colo. App. 126, 42 P. 602 (1895).

Considerable latitude is allowed in introducing testimony. From the nature and circumstances of cases under this section considerable latitude must be allowed in the introduction of testimony, and in the drawing of inferences as to the origin of the fire. Union P. R. R. v. Jones, 9 Colo. 379, 12 P. 516 (1886); Union Pac. Ry. v. De Busk, 12 Colo. 294, 20 P. 752 (1888).

Juries should not be allowed to infer or presume origin of fire. In cases of this kind, juries should not be allowed to infer or presume, for want of positive proof to the contrary, that the fire was communicated by the operating of the railroad. Denver, T. & G. R. R. v. De Graff, 2 Colo. App. 42, 29 P. 664 (1892).

Juries may infer or presume origin of fire where the evidence was sufficient to warrant the inference that the fire was caused by the defendant's passing train because several witnesses testified in substance to the springing up of the fire immediately upon the passing of the train, and that there was no fire on the premises before, and no other apparent cause for the fire. Union Pac. Ry. v. De Busk, 12 Colo. 294, 20 P. 752 (1888); Cyle v. Denver & R. G. R. R., 37 Colo. 298, 86 P. 1010 (1906).

Sufficient evidence rebuts probability of fire originating in any other manner. While the jury, within certain limits, may be left to infer the fact from the circumstances proved, such proof should be sufficient to rebut the probability of the fire having originated in any other manner. Denver, T. & G. R. R. v. De Graff, 2 Colo. App. 42, 29 P. 664 (1892); Crissey & Fowler Lumber Co. v. Denver & R. G. R. R., 17 Colo. App. 275, 68 P. 670 (1902).

The fact that a fire burned along the line of a railway is not evidence that it was caused by the railroad company. Denver & R. G. R. R. v. Morton, 3 Colo. App. 155, 32 P. 345 (1893).

The fact that railroad aided in putting out fire is not evidence that it was caused by the railroad company. Acts which follow an injury cannot be proven in civil actions for the purpose of establishing an antecedent negligence. That a railroad company aided in putting out a fire burning along its track does not tend to establish the fact that it caused the fire. Denver & R. G. R. R. v. Morton, 3 Colo. App. 155, 32 P. 345 (1893).

V. RIGHTS OF INSURER.

The insurer is not to be subrogated to rights of the insured. Any contract to the contrary, or an assignment by the insured to the insurer, in the policy, of the former's right of action, is without effect. Rhinehart v. Denver & R. G. R. R., 61 Colo. 369, 158 P. 149 (1916).

Railroad cannot escape liability because insurer is also liable. The railroad company cannot escape its statutory liability because the owner has seen fit to contract and pay for indemnity against loss by fire from another source, and upon account of his close proximity to the railroad, probably having paid a higher rate than otherwise. In such cases all the authorities are to the effect that unless otherwise provided by statute the insurance feature is no defense to the railroad company. Rhinehart v. Denver & R. G. R. R., 61 Colo. 369, 158 P. 149 (1916).

The owner of the property damaged or destroyed recovers his loss in full, though he has received the insurance money. Rhinehart v. Denver & R. G. R. R., 61 Colo. 369, 158 P. 149 (1916).

The question of double payment to the owner is a matter purely between the insured and the insurer. The contracts of the appellants for the insurance of their property, with the insurance companies, and their subsequent conduct in relation thereto, are matters in which the wrong-doer had no concern, and which do not affect the measure of its liability. Rhinehart v. Denver & R. G. R. R., 61 Colo. 369, 158 P. 149 (1916).

VI. LIMITATION OF ACTIONS.

The time fixed by this section is a condition of the right to sue at all, and a complaint which fails to state that the action was brought within that time fails to state a cause of action and is subject to demurrer. Rhinehart v. Denver & R. G. R. R., 61 Colo. 369, 158 P. 149 (1916); Denver & R. G. R. R. v. United States, 241 F. 614 (8th Cir. 1917).

Failure to bring action within two years acts as limitation of the liability itself. The statute provides that suit must be brought within two years, and we think a failure to bring the suit within the time prescribed by the statute acts as a limitation of the liability itself, and in this respect differs from the ordinary statutes of limitation which affect the remedy only. Denver & R. G. R. R. v. United States, 241 F. 614 (8th Cir. 1917).

Meaning of "accrues". The word "accrues" is employed in different ways. It was evidently the intent of the general assembly to use it in this section in its ordinary sense, which would mean any right that had arisen, that is, was in existence before the passage of the law. British Am. Assurance Co. v. Colo. & S. Ry., 52 Colo. 589, 125 P. 508 (1912).

ARTICLE 31

Overcharges

40-31-101. Railroad company claim agent.

40-31-102. Overcharges - recovery - damages.