Hill v. Concord & M. R. Co.
| Decision Date | 28 July 1893 |
| Citation | 67 N.H. 449,32 A. 766 |
| Parties | HILL v. CONCORD & M. R. CO. |
| Court | New Hampshire Supreme Court |
Exceptions from Belknap county.
Action by Frank D. Hill against the Concord & Montreal Railroad Company to recover the value of a horse killed by being struck by a locomotive on defendant's right of way. The court directed a nonsuit, and plaintiff excepts. Exceptions overruled,
F. M. Beckford, for plaintiff.
E. A. & C. B. Hibbard, for defendant.
The plaintiff's evidence, taken in the most favorable aspect to him, tended to show that the horse escaped in the night from the plaintiff's field into a public highway, along which it wandered, a long distance from the plaintiff's land, to a railroad crossing, and, because of the want of cattle guards, there entered upon the defendant's railroad track, where it was struck and killed by its locomotive engine. "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 cattle guards or fences to prevent cattle from passing upon their road." Pub. St. c. 159, § 23. Cattle guards, like other fences, are required for the purpose of preventing cattle from entering on the land or track of the railroad. But I 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. Woolson v. Railroad Co., 19 N. H 267; Towns v. Railroad Co., 21 N. H 363; Cornwall v. Railroad Co., 28 N. H. 161; Horn v. Railroad Co., 35 N. H. 169; Chapin v. Railroad Co., 39 N. H. 564; Mayberry v. Railroad Co., 47 N. H. 391; Giles v. Railroad Co., 55 N. H. 552; Cressey v. Railroad Co., 59 N. H. 564; Morse v. Railroad Co., 66 N. H. 148. 28 Atl. 286. By the enactment of the statute in its present form (Gen. St. c. 149, § 1), their obligation in this respect was not extended. To require railroads to maintain fences and cattle guards against trespassers was not the purpose or the effect of the changes then made. Giles v. Railroad, 55 N. H. 552. The plaintiff's horse was wrongfully in the highway. It was not entitled to the protection afforded by cattle guards. That it was on the track was not the defendant's, but the plaintiff's, fault, and there was no evidence tending to show that the defendant could have prevented the accident. Felch v. Railroad Co., 66 N. H. 318, 29 Atl. 557. Exceptions...
To continue reading
Request your trial
-
Garland v. Boston & M. R. R.
...thing is true of the law as to statutory signals (Batchelder v. Railroad, 72 N. H. 528, 57 Atl. 920) and other safeguards. Hill v. Railroad, 67 N. H. 449, 32 Atl. 766; Casista v. Railroad, 69 N. H. 649, 45 Atl. 712; Flint v. Railroad, 73 N. H. 141, 59 Atl. 938. "It must appear, to render th......
-
Nappi v. Grand Trunk Ry. Co.
...of such owners or occupants from escaping from the adjoining lands upon the track of their roads." Carpenter, J., in Hill v. Railroad, 67 N. H. 449, 32 Atl. 766, "Cattle guards, like other fences, are required for the purpose of preventing cattle from entering on the land or track of the ra......
-
Batchelder v. Boston & M. R. R.
...for the benefit of travelers on the highway, and not for the benefit of persons traveling on their right of way. Hill t. Railroad, 67 N. H. 449, 32 Atl. 766; Casista v. Railroad, 69 N. H. 649, 45 Atl. 712; Smith v. Railroad, 70 N. H. 53, 83, 47 Atl. 200, 85 Am. St. Rep. 596; Gahagan v. Rail......
-
Bly v. Nashua St. Ry. Co.
... ... The rights of the public and the defendants are in a great measure common. Railroad Co. v. Wakefield, 103 Mass. 261, 263; Concord v. Railroad, 65 N. H. 30, 36, 18 Atl. 87. By the charter, the legislature authorized a new use of streets, which is the source of a new and great ... ...