2 R.I. 404 (R.I. 1853), Tower v. Providence & W.R. Co.

Citation:2 R.I. 404
Opinion Judge:BRAYTON, J.
Party Name:EMERSON TOWER v. THE PROVIDENCE & WORCESTER RAILROAD COMPANY.
Attorney:Ames & Payne, for the defendant, Robinson, for the plaintiff,
Court:Supreme Court of Rhode Island
 
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Page 404

2 R.I. 404 (R.I. 1853)

EMERSON TOWER

v.

THE PROVIDENCE & WORCESTER RAILROAD COMPANY.

Supreme Court of Rhode Island.

March Term, 1853

Where a railroad company, not obliged by their charter to fence the road against adjoining lands unless requested so to do by the owner, agreed with such owner that they should not fence the road against his lands, and a cow placed upon such lands having strayed upon the railroad, where it was killed by the passing of a train of cars, held, that the owner of the cow, having contributed, by his own fault in permitting the cow to pass upon the road, to its destruction, was not entitled to damages for its loss, and that the charge of the court, that " if the cow were killed by the neglect of the defendants to use ordinary care and skill in the common and ordinary use of the lands for railroad purposes, then the defendants would be liable to the owner for damages," was erroneous.

THIS was an action of trespass on the case, for the recovery of damages for the loss of a cow, alleged by the plaintiff to have belonged to him, and to have been killed by the negligence of the defendants. At the trial, before STAPLES, J., in the Court of Common Pleas, it appeared in evidence, that the plaintiff's cow was pastured upon lands of the Albion Company; that by contract between the said Albion Company and the defendants, it was stipulated, that the defendants should not erect or keep up any fence or fences between the track of their railroad and the said lands of the said Albion Company, upon which said cow was pastured; that said cow passed from said lands of said Albion Company, (so stipulated not to be fenced and not kept fenced,) upon the track of the railroad of the defendants, where she was killed by a locomotive

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attached to a train of cars running upon their railroad.

Upon these facts, the defendants requested the court to charge the jury, " that if they found that the plaintiff pastured the cow on land of the Albion Company, by contract with said Company, and that said Company, when conveying to the defendants the right of passage through the said land, stipulated that the crossing of a certain private way upon the railroad, and that the lands of said Company should not be fenced by the defendants, so that cows pastured on said lands might freely go upon said railroad, and that said cow did pass from said lands, so stipulated not to be fenced and not kept fenced,) upon the track of the railroad of the defendants, and was there killed by a locomotive attached to a train of cars running upon said road, that then the plaintiff cannot recover in this action the value of the cow, because the cow was a wrong-doer, and wrongfully upon the premises of the defendants, and that so far as the plaintiff is concerned, whatever might be the rule in an action by a passenger against the defendants, to recover damages for injuries sustained in consequence of a collision between a cow and a train of cars, the defendants are not legally liable for any want of care or skill on the part of their agents or servants, and that the plaintiff has no legal claim upon the defendants, even if the cow was killed by the negligence of their agents or servants in conducting the train."

The court refused to make this charge, but did charge, " that if the landholder sold lands to the railroad company, and provided in his deed that the same should not be fenced from the railroad, and afterwards put his cattle to pasture in lands adjoining those sold, and they were killed, in consequence of the neglect of the defendants to

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use ordinary care and skill, in the common and ordinary use of the lands for railroad purposes, (such care and skill as a man of common prudence would use,) then the defendants would be liable for the damages sustained by the owners of the cattle so killed."

The jury found a verdict for the plaintiff, and the defendants, thereupon, excepted to the charge of the court.

Ames & Payne, for the defendant, contended, That by their charter the Company not...

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