Moore v. Charlotte Electric Ry

• Decision Date: 22 November 1904
• Citation: 136 N.C. 554,48 S.E. 822
• Court: North Carolina Supreme Court
• Parties: MOORE v. CHARLOTTE ELECTRIC RY., LIGHT & POWER CO.

48 S.E. 822

136 N.C. 554

MOORE

v.CHARLOTTE ELECTRIC RY., LIGHT & POWER CO.

Supreme Court of North Carolina.

Nov. 22, 1904.

railroads—animals—care required—street railroad—killing dog—liability.

1. A dog is not within Code, § 2326, making the killing of any cattle or other live stock by its engines or cars prima facie evidence of negligence on the part of the railroad company.

¶ 1. See Animals, vol. 2, Cent. Dig. §§ 2, 115, 126.

2. A dog is a species of property for an Injury to which an action at law may be sustained.

3. A dog, in respect to the care which locomotive engineers owe to them and their owners, is on the same footing with that of a man walking on or near a railroad track, and the engineer is warranted in acting on the belief that the dog will get out of the way, where the dog is apparently in the possession of his faculies.

4. A street railway company, when its caw are properly equipped, is not liable in damages for the killing of a dog by one of its cars, unless the killing was done under such circumstances as to justify the conclusion that it was either willful, wanton, or reckless.

5. In an action against a street railway company for damages for the killing of plaintiff's dog, which was run over by a car, it was error to permit plaintiff to testify that he had measured the fenders on one of defendant's cars, and found it 25 inches from the track, and that he saw several fenders that were about the same height

6. In an action against a street railway company for damages for the killing of plaintiff's dog, which was run over by a car, it was error to receive the testimony of plaintiff that there were several different kinds of fenders on the cars, and that those on the big cars were different from those on the little ones, and that a little car killed the dog.

Appeal from Superior Court, Mecklenburg County; McNeill, Judge.

Action by W. J. Moore against the Charlotte Electric Railway, Light & Power Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Burwell & Cansler, for appellant

T. G. McMichael, for appellee.

MONTGOMERY, J. This action was commenced in a court of a justice of the peace for the recovery of $50 for the killing of the plaintiff's dog by the alleged negligent operation by the defendant of one of its street cars. There were no written pleadings in the case, but upon a reading of the evidence it would appear that the plaintiff on a trial In the superior court relied upon four alleged acts of negligence: First, excessive speed of the car; second, permitting high weeds to grow upon the sides of and near the track; third, the failure to stop the car in time to avoid the collision; and, fourth, failure to equip the car with a proper fender.

We have no case in our Reports where the injury to or the killing of a dog by a railroad or street car company is made the subject of a civil action for the recovery of damages by its owner. Our statute (section 2326 of the Code) makes it prima facie evidence of negligence on the part of a railroad company, in an action for damages against the company, whenever it appears that any cattle or other live stock shall be killed by the engines or cars running upon the railroad. The statute does not give the right, In case of injury or killing of cattle or other live stock, to the owner thereof to bring an action for his loss of property. That right the owner had before. The statute made the killing prima facie evidence of negligence. The dog is not included, of course, in the category of cattle or live stock, but is a species or subject of property recognized as such by the law, and for an injury to which an action at law may be sustained. State v. Latham, 35 N. C. 33. There would be no presumption of negligence, however, by the mere fact of killing or injury being shown. In numerous cases this court has laid downthe law concerning the duties of engineers In charge of moving railroad locomotives in regard to cattle and live stock on and in near proximity to the railroad track and in front of the moving cars. In Wilson v. Railroad, 90 N. C. 69, the court said: "If the mule ran off the road quietly, and manifested by its acts no great alarm, but a disposition to get away from the road, or if at first it stood still, off the road, until the near approach of the train, then it suddenly ran back on the road a short distance ahead of the engine and was killed, the engineer being unable to stop the train, in such case there would not be negligence, and the defendant would not he liable. But, in another view, if the mule was greatly frightened at the whistle and the train—was panic stricken, ran about wildly and recklessly in the immediate neighborhood of the road— and would as likely, in its fright, run on as from it, and the engineer failed to slacken the speed of the train, and the mule suddenly dashed back on the road and was killed by the engine, this would be negligence, and the defendant would be liable for damages. It may be conceded that where cattle are quietly grazing, resting, or moving near the road—not on it—and manifesting no disposition to go on it, the speed of the train need not be checked; but the rule is different where the cow or mule is on the road, and runs on, then off, along, near to, and back upon it In such a case reasonable diligence and care require that the engineer shall slacken the speed, keep the engine steadily and firmly under his control, and, if need be, stop it until the danger shall be out of the...