Horner v. . Williams

Davis, J., (after stating the case). It is insisted by the defendant that the plaintiff was guilty of contributory negligence in putting his cow and other cattle in an enclosure, such as is described in the evidence, and allowing them to run loose and unguarded therein, with nothing to prevent them from crossing and recrossing the railroad track at will, and that the Court erred in the instructions given to the jury. Granville is a stock-law county, and the able and *233 learned counsel for the defendant insists that it was a wrongful act on the part of the plaintiff to permit his cattle to run at large, or, what is alleged to be worse, “pen ” them on the railroad. We do not concur in this view, but think that there was no error in the charge of his Honor, that it was not contributory negligence to put cattle in a pasture of forty acres through which the railroad ran. The fact that the “ stock-law ” was in force could make no difference, even if the fact of negligence on the part of the defendant rested upon no positive evidence, but only upon the statutory presumption. This is settled by Roberts v. Railroad, 88 N. C., 560, cited by defendant. In Farmer v. Railroad, 88 N. C., 564, in considering the question of contributory negligence, Ashe, J., said: “ If the act (of the plaintiff) 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.” So, that assuming in this case that it would be negligence to turn cattle in a pasture of forty acres, as described in the evidence, even then it would not be such a direct and proximate cause of the injury as to bar the plaintiff’s recovery, if ’caused by the want of reasonable care and prudence on the part of the defendant. But we do not think the fact of turning the cattle into such a pasture was per se negligence, and we content ourselves with a reference to Farmer v. Railroad, supra, and the cases there cited. No error. Affirmed.