Rio Grande Western Railway Co. v. Whitson

Bissell, P. J.,
delivered the opinion of the court.

Whitson brought suit against the railroad company to recover double the value of an animal which had been killed by one of the company’s trains. At the trial, the plaintiff showed the killing, his subsequent appointment of an appraiser under the statute, and the taking of such steps as are prescribed by the stock-killing act, the value of the animal, and what was a reasonable attorney’s fee for the prosecution of the suit. The court then entered judgment for twice the value, and fifty dollars for attorney’s fees, making the judgment one hundred and fifty dollars. On the trial, the company objected to the proof and the entry of judgment, rested and reserved the question of the unconstitutionality of the act. This matter was settled by the case of the Denver & Rio Grande Railway Co. v. Outcalt, 2 Colo. App. 395. This case was followed by a later one in the supreme court of the state. Wadsworth v. The U. P. Railway Co., 18 Colo. 600.

These two adjudications set the question at rest. The plaintiff had no cause of action which entitled him to the judgment entered.

The cause will.be reversed and remanded.

Reversed.