Horner v. Williams

• Decision Date: 12 March 1888
• Citation: 5 S.E. 734,100 N.C. 230
• Parties: Horner v. Williams.
• Court: North Carolina Supreme Court

5 S.E. 734

(100 N.C. 230)

Horner

v.Williams.

Supreme Court of North Carolina.

March 12, 1888.

Railroad Companies—Negligence—Stock Killing—Contributory Negligence.

It is not negligence per se to pasture cattle in a 40 acre lot through which a railroad runs, although the stock law prevails in the county where such land is situated.

Appeal from superior court, Granville county; James E. Shepherd, Judge.

Action for damages for negligently killing a cow, brought by Horner against Williams, lessee of the Oxford & Henderson Railroad. Judgment for plaintiff, and defendant appeals.

A. W. Graham, for plaintiff and appellee. C. M. Busbee, for defendant and appellant.

Davis, J. Civil action originally commenced before a justice of the peace for the county of Granville to recover the value of plaintiff's cow, killed on defendant's road, and carried by appeal to the superior court, and tried before Shepherd, J., at fall term, 1887, of said court. It was admitted that plaintiff's cow was killed by defendant's railroad, a month before this action was brought; that the value of the cow was $50; that Granville is a stock-law county; and that defendant's railroad is duly incorporated. The defendant denied the negligent killing, and also alleged contributory negligence, and two issues were submitted: (1) Did defendant kill plaintiff's cow through negligence? (2) Was the killing caused by negligence of the plaintiff contributory thereto? The first issue was found in the affirmative, and the second in the negative. There was evidence, independent of the statutory presumption, tending to show negligence on the part of the defendant, but there is no exception or question before us bearing upon the first issue, and it is only necessary to state so much of the case as is material to the question involved in the second issue, —that is, contributory negligence.

It was in evidence that the plaintiff's cow, with other cattle, was in an in-closure containing about 40 acres, used for a pasture, lying on both sides of the railroad, with a fence extending to the bed of the road on each side of the same, and with cattle-guards between the ends of the fence, where the same came to the railroad; that three-fourths of the land was on the left side of the road going from Oxford to Henderson, and within that portion there was a fish-pond near said railroad track; and there was also a branch of water within and running through the same portion of said inclosed parcel of ground or pasture and near to and parallel with said railroad track; that the cattle pasturing in said inclosed parcel of ground or pasture were turned into the same on that side which lay on the right of said railroad in going from Oxford to Henderson, and were usually turned into the same about 7 o'clock a. m., and taken out a little before sundown, and that the schedule...