4 Ohio St. 424 (Ohio 1854), Cincinnati, H. & D. R. Co. v. Waterson

Citation:4 Ohio St. 424
Opinion Judge:RANNEY, J.
Party Name:THE CINCINNATI, HAMILTON AND DAYTON RAILROAD COMPANY v. WATERSON AND KIRK
Attorney:Thomas Millikin, and Scott & McFarland, for plaintiff in error: James Clark, for plaintiff in error.
Court:Supreme Court of Ohio

Page 424

4 Ohio St. 424 (Ohio 1854)

THE CINCINNATI, HAMILTON AND DAYTON RAILROAD COMPANY

v.

WATERSON AND KIRK

Supreme Court of Ohio

December, 1854

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ERROR to the District Court of Butler County.

The defendants in error brought their action on the case, in the court of common pleas of Butler county, against the Cincinnati, Hamilton and Dayton Railroad Company, to recover damages for the killing of two horses of the defendants in error, by reason of the careless and negligent management of a locomotive and train of cars of said company, by its servants and employees.

The case was tried at the February Term, 1853, of said court of common pleas, when a verdict was rendered and judgment given in favor of the defendants in error. The plaintiff in error then appealed to the district court, in which the cause was tried, with a like result, at the May Term, 1853.

The horses, at the time they were killed, were pasturing in a lot adjoining the railroad of the plaintiff in error. Defendants in error had rented this lot, as a pasture, from one John Jones, who had possession of it under a verbal lease from the executors of Daniel Millikin, deceased, to whose estate it belonged. Daniel Millikin, in his lifetime, by a paper dated December 27, 1848, had released to said railroad company a right of way through his land, on the line occupied by said road, at the time of the injury complained of. This release, among other things, provided "that said company shall pay me [Daniel Millikin] the one half of the cost of putting up good post and board fences, on each side of said road, so far as it shall pass through my said tract of land."

On the 12th day of March, 1851, the executors of Daniel Millikin gave their receipt to said company, acknowledging payment of $ 470.60, in full of half the cost of building said fences, and binding said executors to build the same.

It appears that, in March, 1851, the second engineer of the company gave permission to said executors to build the fence on the west side of said road, on the top edge of the embankment, and that Daniel Millikin, under their direction, commenced to build said fence on the top of the embankment; that in the spring of 1851, the contractor on the road objected to making the fence "at that place at that time," as it would hinder hauling up gravel to ballast the road; that cattle-guards were temporarily erected, instead of fences, to enable the proprietors to cultivate the land; that said executors rented, for the year 1851, "all the tillable land" west of said road, to John Jones, and that no fence was constructed between it and the road; that the cars commenced running on the track of the railroad in September, 1851, and that in the December following the horses of the defendants in error were killed; that said Jones had permitted said defendants to pasture their two horses upon his land, rented as aforesaid, from which they could, and did without difficulty, pass upon the railroad track; that on the day said horses were killed, about five o'clock in the evening, a train of passenger cars was going northwardly; the horses were seen upon the track; just before reaching the "backbone," the whistle sounded, the steam was shut off, and the train proceeded slowly for some distance; the steam was then let on and off several times, and the speed increased and decreased alternately, the whistle blowing at frequent intervals, until the train stopped seventy-five or a hundred yards from the New River bridge; that at the first alarm of the whistle, the horses commenced running northwardly, keeping the track, jumped the cattle-guards, and continued their course until they jumped into the bridge, and were killed.

The district court, on the trial of the cause, among other things, charged the jury, "that the facts and circumstances in evidence, relied upon to show the want of proper care and diligence, on the part of the officers and agents of the company, in conducting the train, were for their exclusive consideration; and whether such facts and circumstances established the want of such care and diligence, or the contrary, was a question of fact, proper for the exclusive determination of the jury; and that, if they should find from the evidence, that these officers and agents, in running the train, did not use proper care to prevent injury to the plaintiffs' horses, and the safety of the passengers, and that, by reason of the want of such care, the plaintiffs' horses were killed, it would be their duty to find, that the horses were killed by the negligence of the defendant, notwithstanding said horses were upon the track of defendant's railroad, in consequence of a want of fences, which the plaintiffs, or those under whom they claimed, were bound to construct, or from being left to run at large by the owners."

The defendants below (here plaintiffs) moved for a new trial, on account of the alleged error of the court in instructing the jury, and because the verdict was against the weight of evidence. The overruling of this motion is assigned for error, as is also the overruling of a motion in arrest of judgment.

The judgment is reversed, and the cause remanded for further proceedings.

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