Mcdonnell v. Pittsfield & North Adams Railroad Corp.

• Decision Date: 26 September 1874
• Citation: 115 Mass. 564
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: James McDonnell v. Pittsfield & North Adams Railroad Corporation

115 Mass. 564

James McDonnell v. Pittsfield & North Adams Railroad Corporation

Supreme Court of Massachusetts

September 26, 1874

Berkshire. Tort to recover for the loss of two colts which were run over and killed by the defendant's engine. At the trial in the Superior Court, before Brigham, C. J., the following facts appeared:

The colts, being on the highway, in the care of the plaintiff's son, escaped from his control, and, the fence being insufficient, entered, without the consent of the owner, a lot known as the Wells lot, and passing over that entered upon the track of the defendant's railroad and were there struck by the engine of a passing train and killed. There was no fence between the Wells lot and the railroad. At the trial the question whether it was the defendant's duty to maintain a fence between its track and the Wells lot was gone into, but the point on which the decision turns makes its consideration immaterial.

The defendant asked the court to instruct the jury: "That the defendant is not liable for an injury to horses coming on the railroad through the land of Wells, if the horses were not on the land of Wells with the knowledge or consent of its lawful occupant." This instruction the presiding judge refused to give, the jury returned a verdict for the plaintiff, and the defendant alleged exceptions.

Exceptions sustained.

J. M Barker, for the defendant.

J. C Wolcott & A. J. Waterman, for the plaintiff.

Devens J. Morton & Endicott, JJ., absent. Colt, J., did not sit.

OPINION

Devens J.

We are not required to consider whether the defendant is under an obligation to maintain a fence between its road and the Wells lot, as even if we assume that it is under such an obligation, the plaintiff is not in such a situation that he can complain of the neglect to maintain the fence.

If the railroad corporation is obliged to fence as against the Wells lot, this, so far as that lot is concerned, is only for the protection of the owner or rightful occupier thereof. It is not obliged to fence for the benefit of landowners, whose lands do not adjoin its road, and whose cattle may stray thereupon through such lots, without the consent of its owner, by reason of the insufficiency of its fences. In Eames v. Salem & Lowell Railroad, 98 Mass. 560, it was held that if the owner of animals permits them to be unlawfully upon lands from which they stray through an unsuitable fence to the track of an adjoining railroad, where they are killed by a passing train, the railroad corporation is not liable in damages, although the fence was one it was bound to make and maintain suitably.

The only ground, therefore, upon which the plaintiff can sustain his case is that his cattle were rightfully upon the Wells lot; and this his evidence wholly fails to show. It is true that no action would lie by the owner of the lot for a trespass committed by the colts in entering upon his land, if they were properly managed upon the highway, and his fences were insufficient; which facts upon these exceptions must be deemed to have been so found by the jury.

The principle of the common law, which requires that each should keep his cattle on his own land, is so far modified as to...