Howard v. Andrews Manufacturing Co.

Allen, J. The right of way of the defendant is not clearly defined, but, whether extending on both sides of the track beyond the sides of the cut or not, the plaintiffs had the right, as owners, to use any part thereof not required or used for railroad purposes (R. R. v. Bunting, 168 N. C., 580), and it was not contributory negligence for the plaintiffs to permit their horse to run at large in the pasture through which the defendant’s road passed. Winkler v. R. R., 126 N. C., 373. It was also the duty of the defendant to use all reasonable efforts to protect the property of the plaintiffs, and it is liable in damages for its failure to do so. Willis v. White, 150 N. C., 202. Applying these principles, we are of opinion there was evidence fit to be submitted to the jury, and that the motion for nonsuit was properly overruled. *121 The evidence tends to prove that the banks of the cut were properly -constructed at first, sloping from the bottom out from the track; that, needing soil for a fill, the defendant dug out the sides of the banks without disturbing the top, thus leaving the upper part with slight support; that this was done through the pastures of the plaintiffs, where it might be reasonably anticipated stock would graze and approach the cut, and this is evidence of negligence. The circumstances also show the mare was injured by falling in the cut, as a result of this negligence. Tracks of the horse on the top of the bank near where it caved, the top caved, two tracks of a horse where the bank broke through, the soil on the roadbed underneath the bank packed as if something bad fallen on it, the mare in good condition the evening before, and found the next morning on the roadbed underneath the cut near where the bank caved with her hip broken, are circumstances which lead to but one conclusion, and this is that the mare, while grazing, approached too near the overhanging bank, fell through, and was injured. The exception to the refusal to permit the defendant to cross-examine the witness tendered, and treat him as a witness for the plaintiffs, cannot be considered, because neither the purpose of the examination nor the anticipated result is shown, and if a new trial should be ordered on this ground it might then appear that the witness knew nothing that would even remotely affect the controversy. No error.