Randall v. Richmond & D.R. Co.

• Decision Date: 21 December 1889
• Citation: 10 S.E. 691,104 N.C. 410
• Parties: RANDALL v. RICHMOND & D. R. Co.
• Court: North Carolina Supreme Court

10 S.E. 691

104 N.C. 410

RANDALL v. RICHMOND & D. R. Co.

Supreme Court of North Carolina

December 21, 1889

This was a civil action, tried at the July term, 1889, of the superior court of Madison county, before CLARK, Judge.

The action was brought to recover damages for the negligent killing of three oxen, belonging to plaintiff, by the defendant's engineer, running on the Western North Carolina Railroad. The plaintiff testifies that he was travelling on the public road, returning from a station on defendant's road, between 8 and 9 P. M., in July, 1888 and driving the oxen, yoked up to a cart. At one point, about 100 yards from said depot, and just above a regular crossing of the said road, the public road ran very close to the depot track. That just above and below this point the public road diverges further from the railroad track. That the train was out of schedule time, and came down the road, meeting the team of the plaintiff. That, just as plaintiff reached this narrow point, where the public road ran close by the side of the railroad, he heard a slight blow from the engine, and almost immediately the engine came around a curve on the mountain, 60 or 70 yards off. That the blow was not the ordinary station blow, nor sufficient, to give warning, and that for the regular road crossing, close by, no blow was given. That if the regular station blow or the crossing blow had been given he could have stopped his oxen before he got to the place where the public road ran close by the track. That there was a large pile of wood, behind which he could have stopped. That, the blow for the crossing not having been given, in ignorance of the approaching train he had advanced to the narrow point, where on one side was the railroad, and on the other the steep side of the mountain. The train suddenly coming around the curve, the noise and blazing head-light so frightened the oxen that in attempting to get out of the way three of them got on the track, and were killed. Defendant company took charge of the beef, and sold the hides. That the oxen were worth to him $150, and on the market would have sold for $140 to $165. They were killed in July, 1888, and this suit was begun in August of same year. The engineer, Dock Stevens, testified that the blew the station blow, and as loud as usual, and at the usual place and after he had blown it he felt his engine strike something; that he did not see the oxen at all; that he was at the usual place on the engine, and on the lookout; that when he stopped at the depot he went back, and found that three oxen were killed; that he was driving the engine the usual speed and with care, but saw nothing on the track; that he did not blow for the crossing. The defendant asked the court to charge: "(1) That, as the oxen were not straying nor at large, but yoked to a cart, and under charge of a driver, the statute raising a presumption of negligence in such cases does not apply. (2) That, if the presumption of negligence did arise, it was rebutted by the plaintiff's own evidence. (3) That there was no evidence to go to the jury; that, there being no substantial conflict of the evidence, the court should, on the evidence, direct, a verdict to be entered for the defendant." The court declined to so instruct the jury, and charged them, among other things: That it being admitted that defendant's engineer killed the cattle, and the suit having been brought within six months, the statute raised a presumption of negligence, and the burden was on the defendant to rebut statutory presumption. That at crossings it was the duty of the defendant's engineer to give notice by blowing his whistle, but that, if the station whistle was blown in sufficient time, and loud enough for the plaintiff to have stopped his team before approaching the crossing, and the narrow spot leading to it, and the defendant did not heed the warning, but pressed on, and his oxen, becoming frightened got on the track, and were killed, the presumption of negligence was omitted, and the jury should find for the defendant; but if the station whistle was not blown in due time, and the plaintiff, without warning, drove is oxen to the narrow place where the engine, coming around the curve frightened his oxen so that they jumped on the track, and were killed; or if the jury should find that, if the regular whistle for the crossing had been blown, the plaintiff could and would have stopped before getting to the narrow place, where the railroad was on one side and the mountain on the other,-then the presumption of negligence would not be rebutted. Verdict for plaintiff. Motion for new trial, assigning as error the refusal to charge as requested, and the part of the charge above given. Motion refused Judgment. Appeal.

D. Shenck and F. H. Busbee, for appellant.

AVERY J., (after stating the facts as above.)

Code, § 2326, provides that "when any cattle or other live-stock shall be killed or injured by the engines or cars running upon any railroad it shall beprima facie evidence of negligence on the part of the company, in any action for damages against said company; provided, that no person shall be allowed the benefit of this section, unless he shall bring his action within six months after his cause of action shall have accrued." The court below was asked to instruct the jury that when the cattle killed were yoked to a cart, and in charge of a driver, the statute does not apply, and no presumption of negligence arises from the fact of killing. The charge given in lieu, that the law presumed negligence upon the admitted facts, constitutes the ground of the first exception.

Where words have a known technical meaning, it must be adopted in construing a statute, but, apart from that, they must be interpreted according to their ordinary import; and where there is no ambiguity, but the meaning is clear and certain, not even the preamble or the caption of a statute can be called in aid for the purpose of construction. Adams v. Turrentine, 8 Ired. 147; Blue v. McDuffie, Busb.131. The definition of "cattle" given by Worcester is "a collective name for domestic quadrupeds, including the bovine tribe, also horses, asses, mules, sheep, goats, and swine, but especially applied to bulls, oxen, cows, and their young." Lest the term might be understood in its restricted sense, as applying to the bovine species, the legislature added the words, "other live stock," which is more comprehensive than the generic meaning; but the term "cattle" includes oxen, according to either definition. The courts must always assume that the legislature is capable of expressing, and does express, its real intent according to the ordinary sense of the words, and adopt it in construction when it is clear. Potter's Dwar. St. 219; State v. Massey, 103 N.C. 356, 9 S.E. Rep. 632. If there had been any purpose to limit the operation of the statute to cattle straying without protection and free from control, surely there was sufficient intelligence among our law-givers to restrict its application, or to except all live-stock at the time hitched to a wagon or conveyance, or bridled and controlled by any person. If the courts now interpolate any such restrictive terms, and thereby change the plain and natural import of the law as it is written, it would be judicial legislation, which is the most dangerous and insidious mode of invading the province of a co-ordinate branch of the state government, and usurping its powers, because there can be no redress for such a wrong, carelessly done under color of the rightful authority; and in corrupt hands the manner of encroachment might be made a method to construe statutes. The late chief justice, in Doggett v. Railroad Co., 81 N.C. 459, enumerated, among the benefits of the law, the protection it afforded to owners of live-stock killed when there was no witness who knew the circumstances attending it; but that the court did not intend to limit its application to cattle or live-stock straying free from control, and to cases where there are no witnesses to the transaction, appears clearly from the unmistakable language used in stating the final conclusion reached: "The force of the presumption only applies when the facts are not known, or when from the testimony they are uncertain." 81 N.C. 467. In the case at bar, the important fact upon which depended the question of negligence was in dispute. The plaintiff testified that the engineer did not give the ordinary station blow at the usual place, while the engineer testified that he did; and therefore there was uncertainty about the facts, and the presumption, according to the doctrine laid down in that case, did not lose its "force." His honor left the jury to determine whether the testimony for the defendant was to be believed, rather than that offered for plaintiff, as to the question of negligence, and was sufficient to overcome the artificial weight given, in proof of the fact of killing, by the statute. After approving generally Doggett v. Railroad Co., the court, in Durham v. Railroad Co., 82 N.C. 354, cite the very words we have already quoted from the former case, showing a purpose to still allow full "force" to the presumption where the facts are, by reason of conflicting testimony, rendered uncertain. See, also, Roberts v. Railroad Co., 88 N.C. 560, and Horner v. Williams, 100 N.C. 230, 5 S.E. Rep. 734.

The train passed at an unusual hour, along a narrow canon, where the wagon road ran at some points close beside defendant's track, and at others diverged a little distance from it. The plaintiff had passed a station, and then...