Perrine v. Lake Shore & Michigan Southern Railway Co.

Opinion by Henderson, J., The first proposition for which the appellant contends is that the court was in error in submitting to the jury the question whether the defendant had constructed a sufficient cattle guard at the place where the plaintiff’s cattle passed from the highway onto the defendant’s right of way. The position taken is that a cattle guard is sufficient which railroad men of practical knowledge and experience would consider effective to prevent usually orderly cattle from straying on the track, and as the defendant’s evidence showed that the cattle guard in question was built according to a plan adopted by the defendant and another railroad company operating lines in western Pennsylvania and which was considered a standard device for the purpose there was no default by the company in this respect and liability under the special statute did not arise. The ordinary usage of railroad companies is said to fix the standard of duty and that as the defendant’s cattle guard was made after an approved pattern its duty was performed. It may be said with reference to this course of reasoning that the matter of the form of the structure is not within the exclusive control of the company when the question arises whether the law has been complied with. The statute does not prescribe the form of the guard, but it declares the effect necessary to be produced; that is, it shall be sufficient to prevent orderly cattle, etc., from straying upon the railroad track. Whether the device adopted accomplished this result must necessarily be a question of fact to be determined by a jury. It may be that employees of a railroad company are well qualified to determine this [238] question, but they are no more so than others whose observation and experience enable them to form an intelligent opinion on the subject. Witnesses who have frequently seen orderly cattle walk over the cattle guards are certainly as well qualified to judge of the adequacy of the obstruction as are those whose theory or experience leads to a contrary conclusion. The plaintiff’s evidence showed that the plan adopted by the defendant did not result in excluding stock from the track, and while this was in a degree contradicted by witnesses called for the defendant the question was still one for the consideration of the jury. That this question was properly submitted is shown by Penna. R. R. Co. v. Japes, 20 W. N. C. 570. The next ground of complaint is that the court refused to charge the jury that if the fences around the plaintiff’s field were insufficient to restrain orderly cattle the plaintiff failed in performance of his duty to confine his stock to his own land and that he was therefore not entitled to recover. It will be observed, however, that the statute fixes the liability of the defendant if it fail to perform the duty imposed. The statute was designed not only for the protection of the property of persons residing in the vicinity of railroads but also for the protection of the limbs and lives of those traveling over or using the railroads: R. R. Co. v. Mead, 8 W. N. C. 206. Of this statute and one of like character it was said in Welles v. Northern Cent. Ry. Co., 150 Pa. 620, "They are both within a proper exercise of the police power of the state and designed for the protection of persons and property.” It was for the legislature to say, therefore, what should be the penalty for a failure to comply with the law on this subject. Liability to pay damages for stock killed or injured was presumably regarded as a spur to continued compliance with the requirement of the statute. Whether the animal killed was on the premises of the owner at the place where it crossed the cattle guard does not appear from the evidence nor do we consider it material. Conceding that since the repeal of the first section of the act of 1700, the owner of [239] cattle is bound to restrain them if he would avoid liability in trespass for damage done by them while at large we do not regard this question as involved in the present controversy. The presence of the plaintiff’s steer on the public highway did not injure anyone. The defendant was bound to use means in the form of a cattle guard fairly adequate to keep the animal off the track within its right of way, and the liability arises from its failure so to do. We cannot regard the act of 1889 which repealed the first section of the act of 1700 as repealing by implication the local laws in operation in numerous counties which require railroad companies operating railroads therein to fence their rights of way and maintain sufficient cattle guards. The repealing statute related to an entirely different subject, was general in its terms and had no application to the local laws referred to. Notwithstanding the clear and forcible argument of the appellant’s counsel we are unable to sustain the assignments of error. The judgment is affirmed.