Roberts v. Richmond & Danville R.R. Co.

• Decision Date: 28 February 1883
• Citation: 88 N.C. 560
• Court: North Carolina Supreme Court
• Parties: W. A. ROBERTS v. RICHMOND & DANVILLE RAILROAD COMPANY.

88 N.C. 560

W. A. ROBERTS

v.RICHMOND & DANVILLE RAILROAD COMPANY.

Supreme Court of North Carolina.

February Term, 1883.

CIVIL ACTION tried at Fall Term, 1882, of MECKLENRURG Superior Court, before Graves, J.

This action was commenced before a justice of the peace to recover damages for killing a cow of the plaintiff. The cow, without the plaintiff's knowledge, escaped from the enclosed pasture ground in which she had been confined, and strayed off and, from a crossing highway, entered upon the track of the defendant's railroad and was seen by the engineer of an approaching train when a mile distant as she came out of a “cut.” It was midday; the train consisted of eighteen loaded cars; the engineer applied the brakes and blew the whistle to frighten the animal and make her leave the road, but to no purpose; the cow was struck by the train, before it could be stopped by the appliances at hand, and instantly killed; her value, when alive, was thirty dollars, and her dead body was worth for food about two-thirds of that sum.

Verdict and judgment for plaintiff; appeal by defendant.

Messrs. Burwell & Walker and E. K. P. Osborne, for plaintiff .

Messrs. D. Schenck, Reade, Busbee & Busbee and Flemming & Robertson, for defendant .

SMITH, C. J.

By a local act applicable to the county of Mecklenburg, where the collision occurred, it is made unlawful for live stock to roam at large in that county, and the owner, who negligently permits it, commits an indictable offence. Act 1876-'77, ch. 122.

The errors assigned in the record brought up by the defendant's appeal, are in the refusal of the court to give to the jury the following instructions:

1. If the plaintiff, being required to keep his cattle fenced in, allowed his cow to stray off and go upon the company's road where she was exposed to injury and was injured by the train, he was guilty of contributory negligence and not entitled to recover.

2. In such case, if liable at all, the defendant would be only liable for the consequences of gross negligence in its officers and agents.

3. The measure of damages is the difference in the value of the cow when living and when dead, as she was fit for human food.

4. The defendant also imputes error in the charge that the action being brought within six months, the act of killing under the statute (Bat. Rev., ch. 16, § 11) affords prima facie evidence of negligence and requires the defendant to rebut it.

We do not ascribe to the local act, which dispenses with enclosing fences in the county of Mecklenburg, and forbids the running of stock at large within its limits, the force and effect attributed to it in the argument for appellant. Its provisions are necessary and intended only to subserve the general policy of the enactment, and the general license which elsewhere permits stock to roam at large, is here withdrawn. But conceding even this temporary and unobserved escape of the cow from confinement to be unlawful, it affords no excuse for an injury resulting from the carelessness and direct mismanagement of the colliding train. The presence of the cow on the track, wrongful though it may have been, did not relieve the person in charge of the train from the obligation of running it with due care...