Battle v. W. & W. R.R..

• Decision Date: 31 January 1872
• Citation: 66 N.C. 343
• Court: North Carolina Supreme Court
• Parties: JAMES L. BATTLE v. W. & W. RAILROAD.

66 N.C. 343

JAMES L. BATTLE

v.W. & W. RAILROAD.

Supreme Court of North Carolina.

January Term, 1872.

1. It is enacted by the Act of 1856-'57, ch. 7, “that when any cattle or other live stock shall be killed or injured by the engines or cars running upon any rail road, it shall be prima facie evidence of negligence:” this rule can only be rebutted by showing that the agents of such rail road company used all proper precautions to guard against damage. It is not sufficient to prove that there was probably no negligence.

2. Independent of the legal presumption, where rail road cars were left on an inclined plane, where they could be easily set in motion, and were very insecurely fastened; and one of the animals, for the killing of which this suit was brought, was killed a month previous to the other, by a car, which had escaped and run down the same grade and the agents of the defendant being thus apprised of the danger of such action, did not use proper precautions to prevent future injury, Held to be gross negligence, for which the company was responsible.

Clark vs. W. N. C. R. R., 1 Winst., 109, cited and approved.

This was action brought by plaintiff against the defendant to receive damages for killing a mule and calf. Tried before Moore, Judge, at Fall Term of Edgecom be Superior Court.

It was in evidence that the rail road of the defendant ran through the enclosed pasture lands of the plaintiff, that there was a continuous grade on the land from and through the pasture to the depot, about a half mile distant. That two empty cars were coupled together, and left standing on the grade or inclination all night, the upper car being chocked with a stick of wood. On the next day the lower car was found to have run down the grade and killed the mule of the plaintiff, the upper car still standing and chocked. The calf had been killed a month previous by a car left on the grade, but there was no evidence as to how the car was left.

A witness testified that a man could kick out the chock, and with his hand start a car to running, and being started, it would run of its own motion with acclerated velocity over the grade for more than a half mile.

Another witness testified, without objection, that he had been long employed on Railroads, and according to the usage of building roads he considered it a proper and suitable grade. This grade was on the main track, and it was in evidence that the Company generally left their empty cars standing...