Winkler v. Carolina & N. W. Ry. Co

• Citation: 126 N.C. 370,35 S.E. 621
• Court: United States State Supreme Court of North Carolina
• Decision Date: 17 April 1900
• Parties: WINKLER v. CAROLINA & N. W. RY. CO.

35 S.E. 621
126 N.C. 370

WINKLER
v.
CAROLINA & N. W. RY. CO.

Supreme Court of North Carolina.

April 17, 1900.

FENCES — NEGLIGENT CONSTRUCTION — RAILROADS—FENCING RIGHT OF WAY—RIGHT TO PASTURE — TRIAL — CONTRIBUTORY NEGLIGENCE—NONSUIT—NUISANCE.

1. In an action against a railroad company for damages to a horse caused by entanglement in a barbed-wire fence erected by such company along its right of way through plaintiffs pasture, where there was evidence that such fence consisted of three strands of wire, strung on rotten cross-ties 40 or 50 feet apart, and so constructed that it swagged about 12 inches in places when people crossed it, the top wire ranging from 12 to 35 inches from the ground, it was error to nonsuit the plaintiff, since, though defendant was not compelled to put up a fence at all, if it did so its liability was that

[35 S.E. 622]

of any one putting up and maintaining a dangerous fence.

2. Laws 1805, c. 65, making it unlawful to erect a barbed-wire fence along any public road or highway unless a railing is placed on top thereof, does not apply to fences erected by a railroad company along its right of way, since such statute was intended, for the protection of live stock passing along a public road only.

3. Where plaintiff's horse, while running in his pasture, was injured by a fence negligently constructed and maintained by a railroad company along its right of way, the fact that such injury occurred in the "no fence territory, in which stock is prohibited from running at large, did not preclude recovery therefor, since plaintiff was entitled to let the horse run in the pasture and on the right of way of defendant through the same.

4. Contributory negligence cannot be considered on a motion to nonsuit.

5. A barbed-wire fence negligently constructed and maintained on the edge of a pasture, dangerous through its location and construction and the probability of its causing injury to stock running in such pasture, constitutes a nuisance.

Appeal from superior court, Catawba county; Bowman, Judge.

Action by Robert Winkler against the Carolina & Northwestern Railway Company to recover damages. From a judgment in favor of defendant on motion to nonsuit, plaintiff appeals. Reversed.

E. B. Cline and M. H. Yount, for appellant.

J. H. Marion and T. M. Hufham, for appellee.

CLARK, J. The defendant erected a barb-wire fence along its right of way. There was evidence that it was negligently erected and maintained. "In some places it was 12 inches high, and from...