Daniel W. Darling &Amp; Another v. Boston And Albany Railroad Company

• Decision Date: 21 October 1876
• Citation: 121 Mass. 118
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Daniel W. Darling & another v. Boston and Albany Railroad Company

121 Mass. 118

Daniel W. Darling & another v. Boston and Albany Railroad Company

Supreme Court of Massachusetts

October 21, 1876

[Syllabus Material]

Worcester. Tort for the killing of a horse. The declaration contained two counts. The first count alleged that the horse got upon the defendant's railroad from a highway, through the defendant's failure to maintain a suitable barrier or cattle-guard to prevent the entrance of beasts upon the railroad. The second count alleged that the defendant corporation, with its locomotive engine and cars, wilfully wantonly and maliciously chased, drove against and killed the horse. Trial in the Superior Court, before Adrich, J., who allowed a bill of exceptions in substance as follows:

Upon the first count, the plaintiffs offered evidence tending to show that the animal in question was a horse about five years old, which they had bought in February, 1873, of a man who had a short time previously brought it from another state that prior to June 19, of that year, they had turned it out to pasture in the daytime, and it had stood quietly and was not breachy; that on the evening of the said June 19, they turned it into a ten-acre lot, adjacent to a town road; that the lot was fenced entirely round with a fence in good repair, from four feet to four and one half feet in height made part of the way of stone wall, part of the way of rails and part of the way of stone wall with rails above; that in the night the horse escaped from the lot into the town way by climbing over the stone wall; that it wandered along the town road for some distance to a county road, thence on the county road for some distance further to another town road, and thence along the last mentioned town road to a point where it crossed the defendant's railroad at grade, and thence upon the railroad, where the defendant's train, about four o'clock on the morning of June 20, struck and killed it. The plaintiffs made no pursuit of the horse till eight or nine o'clock in the forenoon, and did not miss it from the pasture till after it was killed.

The plaintiffs' evidence further tended to show that there was no cattle-guard or other barrier, at the point where the horse entered on the railroad, to prevent animals from entering from the town road upon the railroad; that there had formerly been cattle-guards at that point on both sides of the town road, but they had been filled up by the Western Railroad Corporation some ten or twelve years before the accident. The accident happened in the town of Auburn on that part of the defendant's railroad formerly belonging to the Western Railroad Corporation. The town road ran from Auburn to Leicester, in a farming district, and existed before the railroad was built, and was crossed by the railroad diagonally.

The bill of exceptions then stated the entire evidence upon the second count, the nature of which sufficiently appears in the opinion; and proceeded as follows:

The defendant asked the judge to give the following instructions "1. There is no evidence to justify a finding in favor of the plaintiffs upon the first count. 2. If the plaintiffs' horse escaped from their pasture and was at large in the highway without a keeper, and from the highway strayed upon the railroad at a crossing, through the want of a suitable cattle-guard, the defendant is not liable. 3. The...