Doggett v. The Richmond & Danville R.R. Co.

• Decision Date: 30 June 1879
• Citation: 81 N.C. 459
• Court: North Carolina Supreme Court
• Parties: JAMES W. DOGGETT v. THE RICHMOND & DANVILLE RAILROAD COMPANY.

81 N.C. 459

JAMES W. DOGGETT

v.THE RICHMOND & DANVILLE RAILROAD COMPANY.

Supreme Court of North Carolina.

June Term, 1879.

OPINION TEXT STARTS HERE

CIVIL ACTION tried at Fall Term, 1878, of GUILFORD Superior Court, before Kerr, J.

This was an action to recover damages for killing cattle of the plaintiff. The defendant company admitted the value of the cattle, and that they were killed by being run over by an engine on its road. The testimony introduced on the trial, and the charge of the judge to the jury are sufficiently stated in the opinion of this court. Verdict and judgment for plaintiff, appeal by defendant.

Mr. J. A. Gilmer, for plaintiff .

Mr. J. T. Morehead, for defendant .

SMITH, C. J.

This action is brought to recover damages for the killing and injuring the plaintiff's cattle by the negligent management and careless running of a freight train over the defendant's road, in charge of its servants and employees, and within six months thereafter. The killing was admitted, and thereupon, to repel the imputation of negligence, the defendant introduced its brakeman, then on the train, who testified to the following facts: The witness had been in the defendant's service as fireman for the space of fourteen years and was on the train on the 16th day of June, 1876, when it ran over the cattle. The train was moving down an inclined plane and over a straight line of road a mile in length, with the steam shut off, when it came in contact with the cattle which were near a trestle spanning Reedy Fork branch, and on the track between eight and nine o'clock of that night. The night was dark and rainy and the head light in front of the engine would not enable the engineer to see an object more than thirty yards before him. The witness was supplying wood to the furnace when the signal was given, and hastened to apply the brakes, but before he could do so, the cattle were struck by the engine. The momentum of the moving train of freight cars was such that in the opinion of the witness it could not be stopped by the application of the brakes in less than half a mile. The length of the train of cars and the speed with which it was descending are not stated. Much rain had fallen and the surface of the ground on either side of the track where the accident occurred was covered with water, as the owner testified, when he made an examination next morning.

Among other instructions not set out in the record, the court charged the jury “that if they believe from the evidence the defendant at the time of the killing was running a train which could not possibly be stopped within half a mile, this of itself was negligence, and would entitle the plaintiff to recover.”

The rules of law require, in an action for damages resulting from the negligence of the defendant or his agents and employees while engaged in his service, that the plaintiff shall prove the negligence as a part of his case. Where injury to stock, straying off, is done by trains running at night as well as by day, and known only to the defendant's employees, this was an almost impossible requirement. The owner would not know how, when, or by whom the injury was done, while the servants of the road would possess full knowledge of the facts. Hence the general assembly enacted (Act of February 2nd, 1857,) that if the action was prosecuted within six months, “when any cattle or other live stock shall be killed or injured by the engines or cars running upon any railroad, it shall be prima facie evidence of negligence on the part of the company in any suit for damages against such company,” (Bat. Rev., ch. 16, § 11) thus shifting the burden of proof from the plaintiff to the defendant, and requiring the latter to show the circumstances and repel the legal presumption. But where the facts are fully disclosed, and there is no controversy as to them, the court must decide whether they make out a case of negligence, and if they fail to do this, the defendants are not to be held liable. Such we understand to be the purpose and effect of the statute, and that, all the facts appearing, the defendant is charged or acquitted, as negligence appears or is disproved. The cases where action has been brought for injury to stock from moving railway trains are numerous, and are collected and discussed by Mr. Redfield (1 Red., Railw., ch. 18,) and the rule of liability extracted therefrom seems to be this: If the owner permits his cattle to stray off and get upon the track, and they are killed or hurt, the company is not liable unless the company were carelessly running the train, or could by the exercise of proper care, after the animals were discovered, have avoided or prevented the injury. In other words, the company is not required to abate the usual and safe speed of their trains, lest there may be cattle on the road which may be killed or injured; and if a proper look-out is kept up, and all reasonable efforts made when the obstruction is seen, to avoid the accident, the company is exempt from responsibility, and the injury is ascribed to the contributory negligence of the plaintiff, in permitting his stock to roam about and get on the road.

In the present case, the evidence shows that much rain fell during the night, and the water overflowing the ground the cattle had sought a drier spot, near the trestle, and there they were found next morning by the owner. The train is not shown to have been moving with unusual speed, nor were the number and weight of the cars constituting it proved, and hence we cannot see how great was the momentum, which prevented an arrest of its motion until it had run over a half mile or more of the road. There is no apparent negligence in this, and it does affirmatively appear that when the cattle were first seen as white objects on the road within the distance of thirty yards, the motion of the running train could not be arrested, if the force had been applied to the brakes in time, to avoid the collision. We can see no blame justly attributable to the persons managing the cars.

The railroad system, traversing the country in all directions, contributes largely to the development of its...