Denver & Rio Grande Railroad v. Ruane

delivered the opinion of the court:

The judgment here for review on this writ of error was the result of an act instituted by defendant in error to recover damages for the killing of a cow that had wandered upon the railroad track and was struck by an engine. The only negligence alleged in the complaint was the failure of the railroad companies to fence the right of way. The companies demurred separately to the complaint on the ground, among others, that it did not state facts sufficient to constitute a cause of action. “When the demurrers were overruled, the defendants elected to stand thereon.

It is plain that the' action was brought upon the liability imposed by the' railroad fencing statute of March 14, 1902; That act was held unconstitutional in Denver Co. v. Moss, 50 Colo. 282, 115 Pac. 696, and upon the authority of that case’ it is ordered that the present *111judgment be reversed and the cause remanded with directions to dismiss the action.

Reversed and remanded ioith directions.

Mr. Justice G-abbert and Mr. Justice Bailey concur.