Enright v. The S.F. & San Jose R.R.

By the Court, Shafter, J.: This is an action to recover the value of seven horses run over and killed by the defendant’s cars. The complaint is in two counts. The first charges that the horses were pasturing on lands lying alongside of and adjoining the defendant’s road, and that they escaped from the premises on to the road by means of the insufficiency of a fence which the defendant was bound to build and maintain. The second count charges generally that the horses escaped from the pasture to the road by reason of the defendant’s negligence, and without any fault on the part of the plaintiff; and that the horses were run over and killed by a locomotive and cars, under the conduct of the defendant’s servants and agents. All the allegations of the complaint were denied. Verdict and judgment for defendant. The appeal is from the judgment and order denying plaintiff’s motion for a new trial. The questions presented relate to the sufficiency of the evidence to justify the verdict; to the ruling of the Court as to the admissibility of evidence offered at the trial, and to the instructions given to the jury. First—We do not consider it necessary to pass upon the correctness of the instructions, for, in our judgment, the plaintiff was not entitled to recover on his own showing. He made no case calling for any other instruction than a direction to the jury to return‘a verdict for the defendant. The evidence of the plaintiff tended to prove that the general line of the fence between the field from which the horses escaped and the railroad, was not only a “ lawful fence,” as defined by the Act of April 27th, 1855 (Acts 1855, [234] p. 154), but that in the matter of the depth of the post holes and the size of the posts, the fence was a better one than the statute required. The fortieth section of the Act of 1861 concerning railroad companies (Acts 1861, p. 607), requires such companies “to make and maintain'a good and sufficient fence on both sides of their property.” The Act does not itself prescribe any standard or test of sufficiency, but it must be considered as referring to and adopting the standard previously established by the Act of 1855. It further appeared from the plaintiff’s evidence that the horses escaped from the pasture through a pair of bars in the line of the fence and forming a part of it; that the barway was fourteen or fifteen feet wide; that the top bar was three feet ten inches, the second two feet eight iuches# and the third eighteen inches from the ground, and that each of the three bars was one inch thick and six inches in width; that a cleat was nailed to either bar post and that the bars were slipped in between the cleats and the posts, and that the ends of the bars passed into and through these fastenings from six to eight inches; that the bars were of fir, and were made like other bars; that they had no other fastenings than those already named, and that they could be thrown down by horses or other animals rubbing against them. There is nothing in the Eailroad Act of 1861 relating especially to the construction of barways in the line of railroad fences; but considering the bars in question as a section of the fence, they did not come up to the statute standard. By that the bar-posts should not have been more than eight feet apart, and the topmost bar should have been at least four and a half feet from the ground. But the plaintiff, who was examined on his own behalf, testified that the land upon which the horses were pasturing belonged to 8. Doane at the time the road was surveyed, and to one Kifer at the time the fence was built; that Kifer sold to the plaintiff; that the bars were built for the convenience of Kifer, and the defendant had no use for nor benefit from them. The facts were known to the plaintiff, and he used the barway after he came [235] to the title and possession of the land, in the same manner that Kifer had done before him. Kifer was called by the plaintiff and testified as follows : “ I was the owner of the land when the track was laid; I bought of Doane, and sold to the plaintiff. The bars in question were put there by the defendants for my convenience and at my request; and were so used by me and afterward by the plaintiff. The bars are wider than are generally used, but they were left wide at my request, so that I could get my reaping machinery through. I never made any complaint to the company about them; I was satisfied with them and watched them close to keep them up. Persons went through them and did not put them up. When the plaintiff went into possession he used the bars in the same way. Plaintiff lived there and still lives within sight of the bars, and about three hundred or four hundred yards • distant therefrom.” There was no evidence that either the plaintiff or Kifer ever expressed any dissatisfaction with the bars, or even requested the defendant to improve or alter them in any particular; while the evidence of the defendant was to the effect that no such request was ever made. Assuming the facts which the evidence tended to prove, they amounted to a waiver, by Kifer in the first and by the plaintiff in the second instance, of the “ lawful fence ” of the statute, so far as the barway was concerned. The substitution of the one for the other was not by the election of the defendant, but by the choice, and virtually by the act of Kifer; and the plaintiff, as his successor in interest, subsequently sanctioned the substitution by his conduct. If the plaintiff considered that the barway was in any respect unsuitable for “ his use and convenience,” he ought, on the plainest principles of good faith, to have given the defendant notice. The defendant was excused from further action by the silence and inaction of the plaintiff. jSTor on the evidence could it have been in the understanding of parties that the defendant should be responsible for the bars being put up whenever taken down by the plaintiff or by strangers, or [236] when displaced by the plaintiff’s horses or cattle. As that kind of service became necessary only in consequence of the defendant’s compliance with Kifer’s request and the plaintiff’s subsequent indorsement of it, the burden of keeping the bars in position must have been, in the understanding of parties, with the plaintiff—a conclusion, the correctness of which is fully borne out by their conduct. As it appeared from all the evidence that the plaintiff was alone responsible for the loss of which he complained, it follows that the instructions, howsoever erroneous in the abstract, could have been of no prejudice to the plaintiff. Our views on the subject of the defendant’s responsibilities are fully sustained by the authorities. The rule, deducible from them is, that the provisions of a statute requiring a railroad company to maintain fences on the sides of its track, is a provision designed for the protection of adjoining owners; and that the provision may be waived by them; and that the effect of a waiver will be to exonerate the company from liability for injuries to cattle happening in consequence of the fence not being constructed according to the requirements of the statute. (Pierce on Railways, 344; Redfield on Railways, 373; Hurd v. The R. and B. R. R. Co., 25 Vt. 116; Tombs v. R. and S. R. R. Co., 18 Barb. 583.) Second—The evidence of experts offered by the plaintiff on the question of the sufficiency of the bars and barway, was properly excluded. By the introduction of evidence tending to prove that a fence, sufficient in the statute sense, or sufficient to turn stock, was superseded by a conventional barway and bars, the plaintiff was precluded from testing the responsibility of the defendant by a standard thus jointly discarded. The only question was as to whether the defendant in fact provided the substitute agreed upon. Aside from this, however, we are satisfied that the point was not one upon which the opinion of experts was admissible. The facts of the fence, bars and barway included, were to be testified to by the witness; but the question of sufficiency, assuming it to have been in the case, was with the jury, and [237] not with them. The point was not one of science nor of peculiar or educated skill. The habits and instincts of domestic animals, and the kind of fence necessary to restrain them, are so far matters of general observation and experience that a jury coming from the body of a county may he relied on to deal with questions like the one in hand with all desirable accuracy, thoúgh unaided by the opinion of persons claimed to he experts. (Norman v. Wells, 17 Wend. 161.) Judgment affirmed.