Blaine v. C.

• Decision Date: 09 September 1876
• Citation: 9 W.Va. 252
• Court: West Virginia Supreme Court
• Parties: William C. Blaine v. C. & O. R. R.

9 W.Va. 252

William C. Blaine

v.C. & O. R. R.

Supreme Court of Appeals of West Virginia.

September 9, 1876.

1. A case in which a count in a declaration in trespass on the case, against a railroad company for killing a horse of the plaintiff, on its railroad track, was held sufficient upon demurrer. See opinion of the Court.

2. After the plaintiff, under such count, had given to the jury, evidence tending to prove that the defendant's agents and servants, had by negligence in running the defendant's locomotive and cars, killed the plaintiff's horse, at the time, and in the manner alleged in said count, and also the value of said horse, the defendant offered in evidence, a deed from one Waters to the defendant, for the purpose of proving that the horse, which was killed, was, when first seen, on land owned by defendant, and that defendant had acquired title thereto from said Waters, and to show that defendant had made a contract with said Waters to fence the track of defendant's railroad, through his farm, and the plaintiff admitted that the defendant had acquired and owned title to the land occupied by its track, from the said Waters, but objected to the admission of the deed, to prove a contract between the defendant C and "Waters, in regard to the fencing of said track, i ri the court refused to allow the deed to be road for said purpose, stating that the defendant's title to said land was admitted, and excluded the deed. Held:

That under the circumstances, the court did not err to the prejudice of the defendant.

3. There is no law in the State of West Virginia, of general operation, prohibiting the owners of domestic animals, consisting of cattle, horses, hogs, &c, from suffering them to run at iarge upon the range of uninclosed land, except when unruly and dangerous; and the rule of the common law of England, requiring the owners of such animals to keep them on his own land, or within incisures, has never been in force in West Virginia, being inconsistent wuth the legislation of the State.

4. The owner of such animals, in allowing them to be at large on the range of uninclosed lands, is not chargeable with an unlawful act, or an omission of ordinary care in keeping his stock, subject to the qualification, however, that animals which are unruly, or dangerous, are required to be restrained.

5. There is no law in this State, of general operation, requiring any person to fence his land, uninclosed; but the perso i who leaves his lands uninclosed, takes the risks of intrusions thereon, by the domestic animals of others running at large, and the owner of such animals, in allowing them to run at large, takes the risk of their loss, or of injury to them by unavoidable accident from any danger into which they may happen to wander.

6. The right of a railroad company to the free, exclusive, and unmolested use of its railroad track, is nothing more than the right of every land proprietor, in the actual use and occupancy of his lands, and does not exempt the company from the duty enjoined by law upon every person, so to use his own property as not to do any unnecessary injury to another.. There is no law in West Virginia requiring railroad companies to fence their road, but when they leave their road open and uninclosed by sufficient fencing, and cattle guards, they take the risk of intrusions upon their roads, by animals running at large as do other proprietors, who leave their land uninclosed; t-o that the owner of domestic animals, in allowing them to bo at large, takes the risk of their loss, or injury by unavoidable accident; and the company, in leaving its road unprotected by an inclosure, runs the risk of animals at large getting upon the road, without any remedy against the owner of the animals.

8. The liability to make reparation for an injury, by negligence, is founded upon an original moral duty, enjoined upon every person, so to conduct himself, or exercise his own rights, as not to injure another.

9. The remote negligence of the plaintiff, will not prevent his recovering for an injury to his property, immediately caused by the negligence of the defendant. The negligence of the plaintiff, that defeats a recover}', must be & proximate cause of the injury.

10. Suffering domestic animals to run at large, by means whereof they stray upon an uninclosed railway track, where they are killed by a train, is not in general, a proximate cause of the loss, and hence, although there may have been some negligence in the owner's per_ mitting the animals to go at large, such negligence being only a remote cause of the loss, it will not prevent his recovering from the railroad company, the value of the animals, if the immediate cause ot their death, or injury, was negligence of the company's servants in conducting the train.

11. The bare fact that a railway is uninclosed, there being no statute requiring it to be fenced, does not, in general, render the railroad company liable to pay for animals straying upon the track, and killed by a train such want of fencing being in general, only a remote cause of the loss.

12. Where a railroad company leaves its railroad uninclosed, through a country where domestic animals are allowed to be at large, and thus exposed to the' casualties of the animals getting upon the railway track, it is the duty of the railroad company, through its agents, to use, at least, ordinary care to avoid unnecessary injury to the animals, when found in the way of a train on the road. The first and paramount duty of the agents of the company, is a due regard for the satety of the persons and property in their charge, on the train, for which they are held, to a high degree of care; and so far as consistent with this paramount duty, they are bound to the exercise, of what, in that peculiar business, would be ordinary and reasonable care to avoid unnecessary injury to animals casually coming upon their uninclosed road, and, if the servants of the railroad company, in charge of a train, can, by the exercise of ordinary care, see and save domestic animals which have wandered on the railroad, it is their duty to do so, and for any injury to animals, arising from a neglect of such care, the company is liable in damages to the owner.

On a writ of error to two judgments, of the circuit court of Kanawha county, rendered on the twelfth and thirteenth days of December, 1873, respectively, in a suit then pending in said court, in which William G. Blaine, was plaintiff, and the Chesapeake and Ohio Railroad Company, was defendant.

The facts of the case are fully set forth in the opinion of the Court.

Hon. Joseph Smith, Judge of said circuit court, presided at the trial below.

W. A. Quarrier and W. II. Hogeman for plaintiff in error.

J. 31 Laidley, N. Fitzhugh, and J. II. Ferguson for defendant in error.

Haymond, President:

This is an action of trespass on the case brought by the plaintiff against the defendant, in the circuit court of the county of Kanawha, in the year 1873. The declaration contains two counts. The first count, after alleging that the defendant is " a corporate body," and that it has been summoned, etc., alleges that " on the first day of October. 1872, at the county of Kanawha, aforesaid, the said plaintiff owned and was possessed of a horse of great value, to-wit: of the value of five hundred dollars; and the said defendant was, also, then and ihere the owner, and possessed of a certain railway in the aid county of Kanawha, which it used and operated kith its locomotives and cars, under the care, management and direction of its servants and agents in that fehalf. Nevertheless the said defendant, then and there, y its said servants and agents, so improperly and negliently used, managed, run, and operated its said locomoves and cars, that by and through the negligence, irelessness, and improper conduct of the said defendlt, by its servants and agents in that behalf, the comotive and cars of the said defendant, t ren and ere, ran upon and over the said horse of the said aintiff, and thereby, and then and there, broke the leg the said horse, and the said horse of the said plaintiff, ereby, then and there became and was rendered of no use or value to the said plaintiff, to-wit, on the day and year aforesaid, at the county aforesaid." The second count I omit to state, because, as the case is presented and argued before us, it is immaterial. The declaration, at the end of the second count contains this conclusion:" Wherefore, the said plaintiff saith that he is injured and hath sustained damage to the amount of five hundred dollars, and, therefore, he sues, etc." On the twenty-sixth day of May, 1878, the defendant appeared in court, by its attorney, and demurred generally to the declaration, and to each count thereof, and the plaintiff joined in the demurrer. Afterwards, in December, 1873, the court overruled the demurrer, as to the first count of the declaration, but sustained the demurrer as to the second count. Afterwards, on the twelfth day of December, 1873, the defendant plead not guilty, to which the plaintiff replied generally, and issue was regularly joined.

And on the same day a jury came and, being duly elected, impannelled, and sworn, on hearing the evidence, and arguments of counsel, found their verdict in favor of the plaintiff, and assessed his damages at |200.. Afterwards, on the thirteenth day of December, 1873r the defendant's attorneys, moved the court to set aside the verdict of the jury, and award a new trial. But the court overruled the motion, and rendered judgment in favor of the plaintiff, upon the verdict of the jury for the amount thereof, with interest from the date of the verdict, and the costs of the suit. During the progress of the trial of the cause, the defendant excepted to several opinions of the court, and took and filed three several bills of exceptions to opinions and rulings of the Court, given and made during the trial of the cause. The bills of exceptions are duly...