HOLLAND v. BROWN. 43
‘ Cowan v. Umor: Pac. Ry. Co.` ‘ _  
— (Circuit Court, D. Colorado. May 12, lb88 )' ‘ ·
Maspnn AND Smnvmr-Nncnremncm on Mas·m¤1z—F.u1.um¤ ro Fnncn Rsmnom
nsox. .
Neither common nor statute law in Colorado require that a railroad com-
pany shall fence its track to prevent cattle from straying upon it. Hence.
'the company is not liable for the death of one of its engineers caused by a
collision with cattle on the track.
At Law. Action for damages. On demurrer to complaint.
Browne do Putnam, for plaintiff. ‘
Teller &: Orahood, for defendant.
Bnnwnn, J. In Cowan against the Union Pacific Railway Company
is a demurrer to the complaint. The cause of action is, briefly, that the
p1aintiE’s intestate was an engineer on the defendant’s road, and while
running a train, stray cattle jumped on the track, whereby the engine
was thrown therefrom and he killed. Neither common nor statute-law
in Colorado requires that a railroad company fence its track to prevent
cattle straying upon it, and where there is no obligation there is. no
liability. Counsel for plaintiff, in his brief, admits there is no a·u·
thority sustaining this complaint, but insists that somebody must blaze
the way, and we ought to. It is suiiicient reply to that that it is the
duty of .the law-making power·—the legislature—to blaze the way. The
duty of the court is simply to walk super antiques vias. Many a_ case I
decide one way when I should decide diiferently if I had authority to
make as well as construe th_e law. In the absence of any legislative ac-
tion establishing a new rule, the only true way and rule for the court is
to say ttm lex scripta est. The demurrer to the complaint will be sus-
tained. This is one of those cases whose pleading, I think, in thenaturer
of things, cannot be changedso as to make a cause of action.
HOLLAND 12. BROWN et al. l U A
(District Court, D. Oregon. May 22, 1888.) I ` _
1. Dum nr Wnomemu. Aer-Acrron mr ADMINISTBATOB—DAMAGEB. ly
The damages given to an administrator for the death of his intestate by the
, statute of Oregon 5C0n1p. 1887, _§ 3,71) are, when recovered, assets of ,the, estate.
_ They do not inclu ,0 anything but what is consequent on the death, and there-
fore no allowance can be made for the expenses of the illness attendant on
the injury which caused the death, or of the burial of the deceased. ‘ , y
2;`S°. · ,‘ “  
·- élllllhese damages are in the nstureof a compensation paid hiy the wron -dom·
. ..; to creditors and next of kin of the deceased for the loss of 1 fe in which they
have a pecuniary interest, and incidentally the liability to pay them is calcu·
lated to secure from (carriers and corporations more consideration for·the·1ive•,
of passengers and employes committed to their care. I A , ·r.».