Baltimore & O.R. Co. v. Schultz

• Decision Date: 12 May 1885
• Citation: 1 N.E. 324,43 Ohio St. 270
• Court: Ohio Supreme Court
• Parties: BALTIMORE & O. R. Co. v. SCHULTZ.

43 Ohio St. 270

1 N.E. 324

BALTIMORE & O. R. Co.

v.SCHULTZ.

Supreme Court of Ohio.

Filed May 12, 1885.

Error to the district court, Seneca county.

The action below was brought by Peter Schultz against the Baltimore & Ohio Railroad Company, to recover the value of his horse killed by the cars of the company, upon whose track it had passed from the plaintiff's field, adjoining the company's right of way, through and over the line fence built by the company. The petition alleges that this fence was constructed in a careless and negligent manner, and was defective and insufficient to turn stock, or to prevent domestic animals from going upon the railroad track; that prior to, and at the time of, the accident this fence was, through the negligence of the defendant, in bad repair and insufficient to turn stock and to prevent domestic animals from going upon the railroad, all of which the defendant knew; that, by reason of such negligence and the defective condition of such fence, and without the fault of the plaintiff, his horse, on the tenth of October, 1881, got across, through, and over the fence, to and upon the track, where it was killed by the defendant's cars. A demurrer to the petition was overruled.

It was agreed that the horse was of the value of $140. The petition prays judgment for this sum, and interest from October 10, 1881. The petition did not aver when either the railroad or fence was constructed, except that it was prior to the accident. From the bill of exceptions it appears that, by the concession of the defendant at the trial, ‘the sole question for the jury to find, upon the evidence adduced upon the trial, was whether the company was liable to the plaintiff in damages for said value of his horse, through any negligence on account of defective fence between the fields of the plaintiff and its right of way for its railroad.’ The evidence for plaintiff tended to prove the fence was a board fence, less than four feet high; that it was always poor,-not sufficient to turn stock, not high enough, and weak, nails out in many places, boards loose at one end, would stand but little pressure, posts not large enough, checky, and could not hold nails, boards sag down, lapped but one inch at the end,-and had been in such a condition more than a year. The evidence of the defendant tended to show that the fence was ‘all right;’ that the plaintiff's horse was killed on the morning of the tenth of October; that it had been put in the field of the plaintiff adjoining the railroad the evening before.

The evidence tended strongly to show that during the ninth, or the night of the ninth and tenth, of October, the top board of one of the panels of the fence, without the knowledge of defendant, became detached from the post, leaving the fence at a height to allow the plaintiff's horse to step over it, and that at this point the horse passed through and upon the track. It further appeared that the plaintiff's stock had been running in the same inclosure for a long time prior to the accident, and that none of them had before escaped upon the track. Upon the trial witnesses who had seen the fence testified, against the objection of defendant, to their opinions concerning the fence, and that it was ‘not a good fence;’ ‘not a substantial fence;’ ‘not fit to keep stock off;’ ‘not sufficient to turn stock.’ Some of these witnesses testified to facts descriptive of the fence, in connection with their opinions; others testified to their opinions simply, without any facts upon which they were founded. Many of the witnesses failed to qualify themselves to give their opinions concerning the fence beyond the fact that they had seen it. To the admission of this evidence exceptions were taken. After the evidence was closed the defendant requested the court to charge the jury as follows: ‘If the defendant's fence had, up to the night of the accident to the horse, been in the same condition it had been for some days or weeks previously, while the plaintiff's horse was running in his field contiguous thereto, and by some accident, without the defendant's knowledge, the fence became otherwise defective, by which means the plaintiff's horse got on the railroad track and was killed, then in this action the plaintiff cannot recover.’ This instruction was refused.

The court charged the jury, among other things, that if they found for the plaintiff they should return their verdict for him for the value of the horse with interest from the date of the accident, to which the defendant excepted. Verdict was returned according to this instruction. Defendant's motion for new trial was overruled, and judgment rendered on the verdict, which judgment was affirmed in the district court. To reverse these judgments the present proceeding is prosecuted.[Ohio St. 273]Newbegin & Kingsbury, for plaintiff in error.

Geo. E. Seney, for defendant in error.

OWEN, J.

The instruction requested was properly refused. The evidence tended to show that, for a long time prior to the accident, and while the horse was running in the adjoining field, the fence was in a defective, unsubstantial condition, and insufficient to turn stock. The jury was at liberty so to find. This request called upon the jury to say that, notwithstanding this condition of the fence, if ‘by some accident, without the defendant's knowledge, the fence became otherwise defective, by which means the horse got upon the railroad track and was killed, then in this action the plaintiff cannot recover.’ The hypothesis of a sufficient fence was not submitted by this request. It assumed that the fence was defective. The expression, ‘otherwise defective,’ unmistakably referred to the opening left by the top board of the fence becoming detached, recently prior to the accident, through which the horse passed. The jury was asked to say that, as the plaintiff's stock had not passed over this fence before this accident, though for a long time in the adjoining field, it was shown to be sufficient to turn stock, so far as the defendant's duty to the plaintiff was concerned, and that the special defect occurring without defendant's knowledge it was not liable.

If the defendant was not entitled to this instruction in the very form in which it was requested, there was no error in refusing it. The jury was at liberty to find from the evidence that the very defect, by reason of which the horse passed over the fence and upon the track, was attributable to the general defective condition of the fence. Yet, under the instruction requested, if they had so found, they must have found for the defendant in spite of its neglect to maintain a sufficient fence. There is nothing in this view, nor in the case of Railway Co. v. Smith, 38 Ohio St. 410, (which holds that a railroad company cannot escape responsibility for a defective fence [Ohio St. 274]by showing that it had no notice of its actual condition,) which would charge a railroad company, in the entire absence of negligence, with the consequences of defects in its fence. Toledo & W. R. Co. v. Daniels, 21 Ind. 258;Chicago & A. R. Co. v. Saunders, 85 Ill. 288;Davis v. Chicago, R. I. & P. R. Co. 40 Iowa, 292.

2. The reasoning in support of the claim that the petition failed to state facts sufficient to constitute a cause of action, is that section 3324, Rev. St., which required railroad companies to fence their right of way, and gave six months after the construction of their railroads to build the fences, was repealed by an act which took effect April 20, 1881; that as the plaintiff's horse was killed October 10, 1881, this time (six months) to railroads completed within the 10 days from April 10th to 20th was a vested right, a part of the contract with the state, and could not be divested by the repeal; that for aught that appears, the defendant's road may have been completed before April 20th, and within six months from the killing of the plaintiff's stock, (October 10, 1881.)

This view is untenable. It was within the power of the general assembly to change or remove altogether the limitation as to time for the construction of fences by railroad corporations. Article 13, § 2, of our constitution ordains that ‘corporations may be formed under general laws, but all such laws may, from time to time, be altered or repealed.’ Railway Co. v. Railway Co. 30 Ohio St. 604;Railway Co. v. Sharpe, 38 Ohio St. 150. The effect of the repeal of the six-months limitation was to subject railroad corporations to the obligation of fencing their tracks without other qualification than that of such construction of the enactment as would allow them a reasonable time, after the change of the law, to build their fences, and thus save them from the hardship which this argument assumes. If such a state of facts existed, it was incumbent on the company to set them up in defense. They will not be presumed. The record discloses, however, that the company had, before the accident, assumed to construct this fence. The [Ohio St. 275]duty so assumed should have been performed with a reasonable regard for the rights of others interested in its construction and maintenance.

3. There was no error in instructing the jury to return a verdict for the value of the plaintiff's horse, with interest from the date of the accident. Hogg v. Zanesville Canal Co. 5 Ohio, 410. The agreed value of the horse was $140. The plaintiff was deprived of this from the time of the accident; and for the time it was withheld from him he was entitled to be compensated. This upon the assumption, of course, that he was entitled to recover in the action.

A more serious and difficult question arises upon the exception of the defendant below to the admission of the testimony of non-experts, who were permitted to give their opinions concerning the sufficiency of the fence in question. It is maintained by the defendant that the witnesses should have been restricted in their testimony to statements of facts...