Flint v. Boston & M. R. R.

• Decision Date: 03 January 1905
• Citation: 73 N.H. 141,59 A. 938
• Court: New Hampshire Supreme Court
• Parties: FLINT v. BOSTON & M. R. R.

59 A. 938

73 N.H. 141

FLINT

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Sullivan.

Jan. 3, 1905.

Transferred from Superior Court; Wallace, Judge.

Action by Samuel P. Flint against the Boston & Maine Railroad for killing plaintiff's cattle. Case transferred from superior court on stipulation. Judgment for plaintiff.

One count of the declaration alleged that the cattle, having escaped from defendants' cattle yard at Claremont Junction, went on defendants' railroad by reason of their negligence in not maintaining cattle guards at a certain highway crossing, and were killed.

The plaintiff's evidence tended to prove the following facts: The defendants' railroad crosses a highway at Claremont Junction nearly at right angles. There are no cattle guards at this crossing. The defendants have long maintained a cattle yard at that station, on the south side of the highway, for the use of shippers of cattle over their road. The yard is divided into three pens. The hasp of the door to one of the pens was out of repair, and would not fasten the door. About a week prior to September 21, 1903, the plaintiff applied to the defendants' station agent at Claremont Junction for a car to ship certain cattle from that station to Ipswich, Mass. The defendants were unable to furnish a car until September 19th. The plaintiff decided to ship the cattle September 21st, and in the afternoon of that day he drove 17 cows and 6 calves to the station for shipment to Ipswich, and placed them in the cattle yard, a portion of them being put in the pen having the defective door fastening. He informed the station agent that the cattle were there, and that he was ready to ship them that afternoon. The agent learned, upon inquiry of the plaintiff, that he had no United States license to ship the cattle into another state, and Informed him that he must procure such license before the shipment could be made. The plaintiff thereupon telephoned to the United States cattle inspector at Boston, and arranged to have an inspector sent to Claremont Junction that night. The agent told the plaintiff to leave the cattle and ship them in the morning. The plaintiff decided to leave them in the cattle yard over night and there was no objection to his doing so on the part of the agent The agent informed the plaintiff that the door of one of the pens would not fasten, and that he must nail it with a board. The plaintiff nailed two boards across the door in the agent's presence, and went away about 6 o'clock, leaving the cattle in the yard. He returned between 6 and 7 o'clock the next morning, bringing hay to feed the cattle, and vessels for use in watering them and in milking the cows. He found that the cattle had pressed open the door which he had fastened, and had escaped. Four cows and six calves crossed the highway, went in a northerly direction on the railroad, and were killed by a passing train.

The defendants' evidence tended to prove the following facts: Their station agent told the plaintiff he might leave the cattle in the yard at his own risk. While the cattle which were killed were in the yard the agent took no charge of them, nor did he assume charge of the survivors until the next day, when he gave a shipping receipt for them. Among the defendants' rules were the following: "Station agents have charge of the company's property at their respective stations, and the general direction of the business of the road at those points, subject to the general rules and special orders. They will have charge of the tracks, sidings, switches, grounds, etc., at the station."

The parties agreed that, if there was evidence sufficient to entitle the plaintiff to have the question of the defendants' alleged negligence submitted to the jury, the plaintiff should have judgment for $216 and interest from the date of the writ; otherwise (excepting as to certain contingencies not material as the case has been considered), there should be judgment in favor of the defendants.

Frank O. Chellis, for plaintiff.

Ira Colby & Son, for defendants.

CHASE, J. The agreement of the parties has substantially the effect which a denial of the defendants' motion for the ordering of a verdict in their favor, subject to exception, would have. The principal question, therefore, is: "Whether in the whole case there is any substantial evidence tending to prove the affirmative of the issues made by the pleadings. * * * Or, expressing the question in another form, assuming the truth of the evidence, and construing it most favorably for the plaintiff, does it conclusively appear therefrom that the defendants were not negligent? Must all fair-minded men arrive at that conclusion upon considering it, or might some arrive at the opposite conclusion?" Carney v. Railway, 72 N. H. 364, 369, 57 Atl. 218.

The plaintiff's allegation is that his loss was due to the defendants' negligence in not maintaining cattle guards in their railroad upon each side of a neighboring public highway which it crossed at grade, in consequence of which the cattle, after their escape from the yard, went upon the railroad and were killed. There were no cattle guards at the crossing as alleged. The statutes provide that "the proprietors of every railroad shall erect and maintain a sufficient fence upon each side of their road, except at the crossings of public highways; and at every such crossing they shall construct and maintain, upon each side of the highway, sufficient cattle guards or fences to prevent cattle from passing upon their road." Pub. St 1901, c. 159, § 23. The law is well settled that "it is only against the owner or custodian of animals rightfully on the adjoining land or in the highway that railroads are obliged to maintain fences or cattle guards" by virtue of this statute. Hill v. Railroad, 67 N. H. 449, 32 Atl. 766, and authorities cited. The question, therefore, arises whether, as against the custodian of the plaintiff's animals, they were rightfully or wrongfully in the highway from which they went upon the defendants' track.

If the animals were rightfully in the highway as against their custodian, they must have been rightfully there as against the plaintiff. If the defendants were the custodians of the animals at the time of the escape from the shipping yard, they would not be in a position to claim that the animals were trespassers upon other portions of their grounds after the escape. If, for instance, the animals went from the yard directly upon other portions of the defendants' right of way and caused injury to the defendants, the plaintiff would not be liable in trespass for the injury. While in one sense the animals would not be rightfully at the place of injury, yet their presence there would be due to their escape from custody, the risk of which the defendants, as their custodians, assumed. Their presence upon the defendants' land outside the yard would be due to a breach of their duty to keep the animals within the yard. As against the defendants themselves, the animals would, in a sense, be rightfully upon the defendants' land after the escape. See Chapin v. Railroad, 39 N. H. 53, 60, 75 Am. Dec. 207; Morse v. Railroad, 66 N. H. 148, 149, 28 Atl. 286. The statute would bind the defendants to fence and maintain cattle guards against animals upon their land under such circumstances. Hence it becomes necessary to determine the relations of the defendants to the animals. Were they the custodians of the animals at the time of the escape?

The defendants were engaged in the business of common carriers, not that of keepers of live stock Independently of transportation. No question is made that a part of their business was the transportation of live stock. See Rixford v. Smith, 52 N. H. 355, 13 Am. Rep. 42. As an incident to this business, it was their duty to provide suitable facilities for receiving and delivering animals in connection with transportation. "The proprietors of every railroad shall furnish to all persons reasonable and equal terms, facilities, and accommodations for the transportation of persons and property over their railroad, and for the use of depots, buildings, and grounds in connection with such transportation." Pub. St. 1901, c. 160, § 1. "When animals are offered to a carrier of live stock to be transported, it is his duty to receive them; and that duty cannot be efficiently discharged, at least in a town or city, without the aid of yards in which the stock offered for shipment can be received and handled with safety, and without inconvenience to the public, while being loaded upon the cars in which they are to be transported." Covington Stock Yards Co. v. Keith, 139 U. S. 128,...