Wilder v. Maine Cent. R. Co.

• Decision Date: 14 February 1876
• Citation: 65 Me. 332
• Parties: AMOS WILDER v. MAINE CENTRAL RAILROAD COMPANY.
• Court: Maine Supreme Court

65 Me. 332

AMOS WILDER v. MAINE CENTRAL RAILROAD COMPANY.

Supreme Judicial Court of Maine.

February 14, 1876

1874.

ON EXCEPTIONS AND MOTION.

CASE for killing the plaintiff's horse at Hallowell, in June 1871, by running upon him with an engine.

At the trial, March term, 1874, the verdict was for the plaintiff with damages assessed at $1000. The defendants moved to have the verdict set aside as against law and evidence, and filed exceptions.

The plaintiff was a third owner in common of the oil cloth factory, and the lot connected therewith which extended on both sides of the railroad. The plaintiff's horse escaped from this lot, then unfenced, on to the track at the time of the killing.

There was evidence tending to show that the defendant company originally fenced their track from the oil cloth lot, and that the fence was removed many years previously at the request of Stickney, a member of the firm of Stickney & Page owner of the locus. The firm afterwards took in Towle as a partner; Stickney died, and the plaintiff purchased his interest in the real estate and mills which were all included in the partnership business.

The defendants contended that they were not bound to fence their road under the general statutes of the state, because their charter and the location of their road were prior to the statute; that they were not bound to fence their road through the plaintiff's lot, because the same was not inclosed or improved land within the meaning of the statute, and because the owners and occupants had agreed with the defendant that they should not fence the same; and that they were not liable because the negligence of the plaintiff caused or contributed to the loss of his horse; and they excepted to such parts of the charge as were adverse to these positions.

The presiding justice, among other things, instructed the jury as follows:

" The first point, made then, in regard to this, is that the railroad is under no circumstances bound to make a fence, because it is said that the charter of this road was granted previous to the law passed by the legislature, requiring railroads to build fences. I reserve this question for future consideration, for the full court, where it can be more carefully examined than it can be here, and hold that this road would be bound by the statute which has been referred to, as having been first passed in 1842. Then under that statute this road and others in the state are bound to build fences along the line of their road on each side, provided they pass through inclosed or improved lands.

I understand land to be improved, when it is occupied for the purpose of obtaining a profit from the produce which may grow upon it, pasturing, and mowing, or tillage, or anything of that kind. I understand that to be the sense in which the word is used in the law which has been read in your hearing. If it is not improved land, in the sense to which I have called your attention, the road would not be under obligation to build a fence. If it was improved land at that time, in the sense which I have defined to you, then the road would be under obligation, so far as that is concerned.

I instruct you for the purpose of this trial that the agreement, whatever it was, made with Stickney as a member of that firm, would be binding upon the firm. He had a right, so far as he himself was concerned and so far as the firm then existing was concerned, to release this railroad company from building a fence. He had no such right, to be sure, so far as the public was concerned, and if any passenger had been injured or any property of any person being carried over the road had been injured or destroyed, for the reason that any animal escaped from that and got upon the road, the railroad still might have been liable notwithstanding the agreement.

The agreement, then, goes no further than to those persons who are parties to it, and who are bound by it; and the party owning the land, may assume the obligation, if he chooses, to keep up the fence; and if he does, so far, and so long as that obligation continued, he could have no claim himself upon the railroad for any of his animals that might escape through that fence, or for the want of a fence upon the track.

So I hold for the purpose of this trial, that a member of the partnership business, in relation to that which pertained to the partnership, would have authority to bind the partnership. If they were then occupying this land, and used it for partnership purposes in carrying on their partnership business, one of the members of the firm would have a legal right, so far as that firm was concerned, to release the company from building the fence. That agreement would continue in force and be binding upon that partnership. It would not be binding, as has been held in our court, upon any successor or any grantees. Now when a partnership is existing, and one partner goes out and another comes in, that is a regular dissolution of that partnership. And a new one being formed, they would be the successors of the others, and, therefore, I instruct you in this case that whatever that contract might have been between Stickney, (as representing that partnership,) and the railroad company, that would not be binding upon his successors. When the partnership became changed the contract would be no longer in force.

I instruct you for the purpose of this trial that the mere fact of there being no fence is not proof that he was negligent in turning his horse out there. That is to say, he had a right to use his own land in the ordinary way, and the railroad company could not screen themselves simply upon the ground that they had neglected to perform the duty which was incumbent upon them. But this principle of law is subject of course to qualifications. In one instance it may not have been a negligent act and in another instance it may have been a negligent act. Here is a question of fact for the jury to settle. You will take into question the nature of the road, the manner in which it was built, the dump which extended from near the crossing to the bridge, the nature and character of the horse, and all the circumstances bearing upon that, and decide for yourselves whether the plaintiff was guilty of negligence in turning his horse out there under the circumstances in which he did. It is not to be taken as a matter of law that he was negligent, neither are you to consider the simple fact that he turned his horse in, knowing that there was no fence; but you are to take all these circumstances into consideration; you take that of course, so far as it is a fact, that there was no fence there, (because if there had been a fence this question would not have arisen,) but not as bearing upon the question of negligence; but taking all these circumstances into consideration--was it an act of negligence on his part to turn his horse in?

If the company was under obligation to build the fence at that time and maintain it and the plaintiff was not negligent in turning his horse in at that time, the company would be liable. Otherwise, upon this branch of the case, they would not be."

J. W. Bradbury, jr., for the defendants.

The defendants were not required to fence the locus in quo.

I. Their charter, granted in 1836, specially exempts the corporation from the provisions of the act of March 17th, 1831. It is not therefore subject to the future action of the legislature, except in the manner provided in the charter itself; and that does not authorize any action in regard to fencing.

The act requiring railroads to fence was passed in 1842, and the act subjecting them to damages, caused by the neglect, in 1853.

These acts cannot affect the existing relations between this corporation and the land owner.

As the terms of these relations were established by the charter, they are not to be interfered with by any subsequent legislation.

The legislature, by its own act, had surrendered the power to interfere and had stipulated that it would not.

It was under this condition that the relations between the land owner and the corporation had become fixed, and the damages for taking the land appraised and paid.

It was not competent, therefore, for a subsequent legislature to change the conditions or add to the burdens of either party. Any act attempting it would be clearly retroactive and unconstitutional. And the instructions given on this point were therefore erroneous. Baxter v. Boston & Worcester R. R., 102 Mass. 383.

II. Again, under the act of 1842, the relations between the parties were not changed. That act, if constitutional, would only subject the defendants to the penalty for neglect to fence, but it would not authorize the plaintiff to recover in this action, if he could not, independent of its passage.

III. The locus was a mill yard, and not inclosed or improved land, such as railroads are required by the statute to fence.

The burden is upon the plaintiff to establish the fact that the defendants were bound to fence. 102 Mass., above cited.

IV. The fence having been removed at the request of, and under an arrangement made with, the managing owner, Mr. Stickney, under whom the plaintiff holds, and whose interest he has, he cannot repudiate that agreement; in fact, he had never done so, and had never intimated to the defendants any desire to have the fence rebuilt. It was an agreement acted upon by the defendants, and it is not competent for the plaintiff to repudiate it without notice. It was competent for Stickney to make such an agreement. Tombs v. Rochester & Syracuse Railroad, 18 Barb. 583. Talmadge v. Rensselaer & Saratoga Railroad, 13 Barb. 493.

O D. Baker, with whom was J....