Ward v. Wilmington & W.R. Co.

• Decision Date: 09 December 1891
• Citation: 13 S.E. 926,109 N.C. 358
• Parties: Ward v. Wilmington & W. R. Co.
• Court: North Carolina Supreme Court

13 S.E. 926

109 N.C. 358

Ward v. Wilmington & W. R. Co.

Supreme Court of North Carolina

December 9, 1891

Appeal from superior court, Pender county; R. F. Armfield, Judge. Reversed.

This was an action by E. W. Ward against the Wilmington & Weldon Railroad Company to recover damages for the killing of plaintiff's horse. There was judgment for plaintiff, and defendant appeals.

The other facts fully appear in the following statement by Avery J.:

The issues submitted, with the responses by the jury, were as follows: "(1) Did defendant, by its negligence in moving its cars and engines, kill the horse of the plaintiff? Yes. (2) If yes, what damage has plaintiff sustained thereby? $88." There was testimony offered on the part of the plaintiff tending to show that within six months before the beginning of this action the defendant had killed the horse of the plaintiff by running against him, in the day-time with a freight train running on defendant's road; and also testimony as to the value of the horse. Defendant introduced the engineer, fireman, and others who were on the train at the time of the killing of the horse. They testified that the train was a long and heavy freight train, running rapidly and with great momentum; that the engineer in charge of the train was on the vigilant lookout for stock in front of the train, but that weeds and bushes had grown up close to the track of defendant's road-at that point within two feet of the track-as high as plaintiff's horse; that the horse was concealed from the engineer by these weeds and bushes until the train was close upon him, when he suddenly emerged from the weeds and bushes onto the track; that the engineer, immediately on seeing the horse, he being on the lookout to the front, blew down brakes, blew the cattle alarm, and reversed his engine; that the brakes were applied but that the horse was so close to the train that all these efforts were unavailing, and the train ran over the horse and killed him. Defendant asked his honor to instruct the jury "If the jury believed that the engineer, as soon as he could, by looking out and being on the watch, discovered the horse, and then used all the efforts at his command to stop the train, and could not do so in time to keep from striking the horse, then the defendant was not guilty of negligence, and plaintiff could not recover." His honor told the jury that this would be true unless the defendant had negligently allowed bushes and weeds to grow on its right of way so close to its track that the horse was concealed thereby until it was too late to stop the train and prevent his destruction. Defendant further asked his honor to instruct that, "if the jury should believe that the engineer was prevented from seeing the horse, or would have been prevented from seeing the horse had he been on the careful lookout, by the weeds and bushes growing within two feet of the ends of the cross-ties on the side of the road on which the horse was killed, and the said bushes were three or four feet high, then the prima facie case in favor of the plaintiff would be rebutted, and jury should find first issue in favor of defendant." The substance of the instruction given is embodied in the opinion of the court. There was a verdict for plaintiff. Defendant moved for a new trial on account of the refusal of the court to give the instructions asked for, and for alleged error in the instructions give.

In an action against a railroad company for killing a horse, it appeared that the horse had been hidden from the sight of the engineer by high weeds and bushes growing within a few feet of the track, and that when the train was close upon him he had suddenly emerged. The court charged that it was negligence for the company to allow weeds and bushes to grow "near to" "or in close proximity" to the track, and that, if the injury resulted because the horse was so concealed that the engineer could not see him in time to stop, the company was liable. Held erroneous, in leaving uncertain the precise distance to which a railroad company must keep clear its right of way, and in fixing upon it the duty of taking possession of such parts of the right of way as are not actually needed for railroad purposes, and which custom has always allowed the abutting owners to cultivate.

Haywood & Haywood, for appellant.

Avery J.

It is settled law in this state that, if an engineer in charge of an engine sees, or can, by keeping a careful outlook, see, a cow or horse upon the track in his front, it is his duty to stop the train if he can do so without peril to the passengers and property under his charge by the use of all the appliances for checking the speed at his command. Carlton v. Railroad Co., 104 N.C. 365, 10 S.E. Rep. 516; Wilson v. Railroad Co., 90 N.C. 69; Snowden v. Railroad Co., 95 N.C. 93; Bullock v. Railroad Co., 105 N.C. 180, 10 S.E. Rep. 988; Deans v. Railroad Co., 107 N.C. 686, 12 S.E. Rep. 77. If, by the exercise of ordinary care, the engineer can discover that an animal is greatly frightened, and is running apparently excitedly and wildly beside and near the track, or continues on and sometimes off it, it is the duty of the engineer to "slacken the speed, keep the engine under his control," and, if necessary, "stop it," until the animal is out of danger. Wilson v. Railroad Co., supra. "When the cattle are quietly grazing, resting, or moving near the track,-not on it,-manifesting no disposition to go on it, the speed of the train need not be checked." Wilson v. Railroad Co., supra. We have thus stated the general rules laid down by this court in reference to the negligence in injuring live-stock, in order the more intelligently to discuss the instruction given by the court in the case at bar, that, even though the engineer could not, by keeping the most vigilant outlook, discover that the plaintiff's horse was in the vicinity of the track in time to stop the engine, yet "it was the duty of the defendant to keep its right of way near its track reasonably clear of weeds and bushes, which might conceal stock approaching its road until it was too late to stop a train and prevent their destruction;" and that, "if they [the jury] believed that the horse was killed because he was so concealed by weeds and bushes, which the defendant had negligently permitted to grow up in close proximity to the track," that the engineer could not see in time to avert the injury, the defendant's negligence was the proximate cause of it. We take notice of the fact that, whatever may be the privilege of railroad companies to exercise dominion over their whole right of way, the universal custom has been to allow the abutting owner, whose land has been taken for the use of the public, to cultivate up to the side ditches that are kept open for the purposes of proper drainage by the company. While we concede that it is the duty of the corporation in constructing its road to cut down the large trees that might fall on or be thrown upon the track, we would be loth to give our sanction to any ruling that would make it incumbent upon them, in order to protect themselves from liability, to take actual possession of any portion of the right of way, not needed for corporate purposes proper, namely, to remove from it corn, grain, high grass, weeds, or bushes, that may spring up immediately outside of the ditches and grow upon cultivated land, high enough to conceal a horse or cow from the view of an engineer who is approaching with a moving train.

It is important that every principle of law, to which the conduct of the citizen is to be made to conform, should mark out the line of his duty with reasonable certainty. It is essential in order to insure the transportation of...