Farmer v. Wilmington & Weldon Railroad

Ashe, J. We are of the opinion there is error in the instruction given to the jury, and in the refusal to give that requested. By the common law, every person is obliged to confine his animals to his own premises, but in this state the common law has never obtained in this respect. In the early settlement of the country, when the population was sparse and there were vast tracts of unenclosed lands, cattle were permitted to run upon what was called the “range”; and although strictly unlawful when they grazed upon the unenclosed lands of any one besides their owner, it was a trespass, winked at by the law. By a kind of tacit consent, each farmer was recognized as having a “common de vicinage” upon the unenclosed lands of his neighbor. The *568 usage so long prevailed that it came to be considered as a right; and as cattle in the “range” were likely to break into and trespass upon enclosed lands, the legislature passed the law in regard to fences, making it indictable for any one to have about a cultivated field, in crop time, a fence less than five feet high; and again providing that no person should recover any damages done by horses or other stock upon his enclosed grounds, unless he could make it appear that he had a good and sufficient fence. The object of which legislation seems to have been, to fence out one’s neighbor’s cattle, rather than to fence one’s own in, thereby recognizing the right to turn one’s cattle to feed upon the “range.” Burgwyn v. Whitfield, 81 N. C., 261. If, then, it is no trespass for cattle to wander upon unenclosed lands, and persons whose cattle stray upon an unfenced railroad track are not thereby placed in the position of wrong-doers, it follows that railway companies are liable for the ordinary negligence of their servants toward such animals. In Mississippi, where the quasi “common de vicinage” prevails as in this state, the doctrine is thus announced: “Persons living contiguous to railroads have the same right as others, in more remote localities, to turn their cattle upon the range; but they assume the risk of their greater exposure to-danger. The cattle are liable to go lipón the road: the company cannot detain them damage feasant, any more than any other land-owner; nor can they treat them as unlawfully there, and therefore relax their care and efforts to avoid their destruction. The only justification of the company for injury to them is, that in the prosecution of their ordinary and lawful business, the act could not have been avoided by the use of such care, prudence, and skill, as a discreet man would put forth to prevent or avoid it.” R. R. Co. v. Field, 46 Miss., 573. If, therefore, the plaintiff turned his mule out of his enclosure, as he had the right to do, the act could in no sense be considered as contributory negligence, and it was error in the judge to charge the jury that “if you are satisfied by the evidence that the plain *569 tiff, knowing the train would pass that point in a short time, turned his mule upon the track of the defendant and left it there, and this action of his contributed directly to the injury complained of, the plaintiff would be guilty of contributory negligence, and would not be entitled to recover.” We presume what His Honor meant by turning the mule upon the track, was, the turning it out near the track, for there was no proof it was turned by plaintiff upon the track. But conceding that negligence was imputable to the plaintiff in turning his mule out of his lot, as described by the witnesses, still it was the duty of the defendant to exercise proper care to avoid the injury; for it has been held by this court, that “ notwithstanding the previous negligence of the plaintiff, if at any time when the injury was committed it might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie for damages.” Gunter v. Wicker, 85 N. C., 310. The instruction asked by the plaintiff and refused by the court, was almost in the identical language of this decision, and wheii the court declined to give it, the jury may possibly have been misled by the inference, reasonably to be drawn by the refusal, that the court was of opinion the converse of the proposition was the law: in other words, that if the plaintiff contributed by his unlawful act to the injury, the defendant would be excused from the exercise of that reasonable care and prudence which the law’, under other circumstances, requires at the hands of a railroad company and its servants. In Davies v. Mann, 10 M. & W. (Exc.), 546, it is held that the general rule of law respecting negligence is, “that although there may have been negligence on the part of the plaintiff, yet, unless he might, by the exercise of ordinary care, have avoided the consequence of the defendant’s negligence, he is entitled 1o recover. Therefore, -where the defendant negligently drove' his horses and wagon against, and killed an ass which had been left in the highway fettered in the forefeet, and thus unable to get out of the way of defendant’s wagon, which was going at a *570 smartish pace along the road, it was held that the jury were properly directed that although it was an illegal act on the part of the plaintiff, so to put the animal in the highway, the plaintiff was entitled to recover.” Whether the act of the plaintiff in turning out his mule constituted contributory negligence, depends upon the question whether the act of the plaintiff was a proximate or a remote cause. If the act is directly connected, so as to be concurrent with that of the defendant, then his negligence is proximate and will bar his recovery; but where the negligent act of the plaintiff precedes in point of time that of the defendant, then it is held to be a remote cause of the injury and will not bar a recovery, if the injury could have been prevented by the exercise of reasonable care and prudence on the part of the defendant. Thompson on Negligence, 1157, note 8; Gunter v. Wicker, supra; Doggett v. R. R. Co., 78 N. C., 305; Roberts v. R. R. Co., ante, 560. Here, the act of turning out the mule, conceding it to have been unlawful, was not a proximate cause of the injury. We do not niean to intimate an opinion as to the question whether the defendant had used the care and prudence required by the law to avoid the injury, but only that the plaintiff was entitled, as nfatferb?" law, to the instruction asked, and that the refusal to give it may have had an improper influence on the minds of the jury, and that there was error in the charge given. Error. Venire de novo.