Trow v. Vermont Central Railroad

The opinion of the court was delivered by Isham, J. The declaration in this case, in substance states, that the defendants are the owners and occupiers of a certain Railroad passing through “ Falls Village,” in the town of Northfield, and by the side of and across a public highway, leading through that village ; and that' being such owners and occupiers, it was their duty to construct and maintain fences by the side of their road, suitable ■ to prevent cattle and other animals from passing upon the Railroad track ; and also, for the same purpose, to erect and maintain suitable cattle guards at all farm and road crossings. It is averred, that the defendants have neglected their duty in erecting fences by the side of their road, through that village, and in constructing such cattle guards ; and that in consequence of this neglect, the plaintiff’s horse was found upon the railroad track, and was so injured as to be rendered wholly worthless, by being run upon by an engine of the defendants, while in the use of their road. It is to be observed that the plaintiff has not in his declaration, nor by evidence on the trial, attempted to charge the defendants with any neglect or want of care in conducting and managing the engine, at the time the injury was committed. We are, therefore to assume in this investigation, that the train was properly conducted, and that there was in this respect, the exercise of that reasonable care and prudence on the part of the defendants and their agents, which the law requires, at the time the injury was committed. The case on the part of the plaintiff, must therefore rest upon — 492 — a duty, imposed by law upon the defendants, to erect and maintain such fences and cattle guards upon their road, as will prevent horses and other animals from passing thereon, and upon proof, that the injury was occasioned by a neglect on their part to perform that duty. That a duty of that character rests upon this corporation, must be considered as settled in this State, by a decision of this court in the case of Quimby v. Vt. Cent. R. R. Co., 23 Vt. 393. The court there held, “ that the expense of fencing rests primarily upon the company,” and consequently can be taken into consideration by the commissioners, in the assessment of damages ; and when this duty exists, an action will lie for any injury arising solely from any neglect therein. Manifestly that duty becomes more or less imperative, and its performance -required greater or less sufficiency and care, depending upon the locality of the road ánd the place through which it passes. In places thickly settled, and where animals for domestic . use and purposes are necessary, much greater diligence and care . is required of a Railroad corporation, in the construction of their , fences and guards than would be required in places thinly settled or remote from individual habitations, as the danger of injuries from such causes is proportionably diminished. That would be considered gross negligence in the one place, which would not be . so considered in the other. If, in this case, the injury arose solely from the neglect of the defendants to erect and maintain suitable fences and guards for . the protection of animals, the charge of the court, so far as the defendants are concerned, is unobjectionable. They have no reason to complain of the degree of diligence and care which the court required them to exercise, for under the instructions given, they were held liable only in cases of gross neglect in making and maintaining such erections. If there were error in this, it was in favor of the defendants, and is that for which they have no cause of exception. The jury have found the defendants guilty of gross neglect in the performance of this duty ; and although this neglect may not be considered the proximate, but the remote cause of the injury, their liability is a necessary consequence, unless there are some other facts existing in the case, otherwise affecting it. The duty of maintaining fences and erecting cattle guards, for — 493 — such purposes, is imposed upon the corporation, not only as a matter of safety in the use of their road, and running their engines thereon, hut also as a matter of security to the property of those living near and contiguous to the road. And this arises from the consideration, that they must know and reasonably expect, that without such precautions, such injuries will naturally and frequently arise. And when, for the distance mentioned in this case, no precautions of that kind were used upon this road, and in a place so public and common, we think, as a matter of law, there was that neglect which will render the corporation liable for injuries arising solely from that cause. The important question presented in this case, arises upon the evidence introduced by the defendants, and the charge'of the court thereon. The defendants introduced evidence, showing that the plaintiff’s horse had been several times before in the highway, and with the knowledge and consent of the plaintiff. And the court were requested to charge the jury, ■“ That if the plaintiff’s horse, at the time of the injury, was in the highway with the knowledge and consent of the plaintiff, he could not recover.” As there was evidence in the case tending to prove that fact, and from which the jury could properly have made such inference, the defendants had a right to insist upon a charge of the court, agreeable to the request; and the neglect of the court so to charge the jury, gives to the defendants the benefit of that fact, in this examination of the case, to the same extent as if found by the verdict of the jury. So that the investigation of this case leads to the inquiry, what effect is had upon the liability of the defendants, by the fact that the plaintiff’s horse was permitted to run and remain upon the public highway, in a manner to be exposed to the dangers and injuries arising from the defendants’ use of the road ? It is very evident, that if the defendants are chargeable with gross, or any other degree of neglect, from their want of proper care in making and constructing their fences and cattle guards, arising from the consideration that they must have known and expected such casualties and injuries would arise, the plaintiff is/ chargeable at least with the same degree of neglect, in permitting his horse to run upon the highway, knowing of his exposure and liability to injuries of this character; and it is as reasonable to — 494 — charge the plaintiff with the knowledge and expectation that such injuries would arise, as the defendants, and also to require of the plaintiff the exercise of as much care and prudence in keeping his property from such exposure to such injuries, as is required of the corporation, in guarding against their commission. From the facts, therefore, in the case, the plaintiff was as much' in fault and as equally chargeable with neglect, as the defendants ; and in each case, their negligence was the remote cause of the injury, and equally contributed to that result. This is as favorable a view of the case as can be taken on the part of the plaintiff, for in reality, the difficulty in the case, on his part, is increased from the consideration, that his horse was upon the highway without right. Chancellor Kent, 3 Kent’s,, 536, says, “ That the public have no rights in a public highway, but a right of way or passage; and if cattle are placed in a public highway,' for the purpose of grazing, and escape into an adjoining close, the owner of the cattle cannot avail himself of the insufficiency of the, fences, in excuse of the trespass.” And this provision is enforced by statute in this State, Comp. St. 519 § 16. In England, the so placing cattle for grazing would be a trespass, and an action of trespass would be sustained by the adjoining proprietors. Lade v. Shepherd, 2 Str. 1004. Stevens v. Whistler, 11 East. 51, and such have been the decisions, in repeated instances, in this country. 16 Mass. 33. 1 Conn. 103. 1 N. H. 16. 1 Cow. 238. 7 Barb. Sup. Ct. R. 298. 2 Smith’s Lead. Cas. 176, 184. This leads our investigation to the question, whether an action can be sustained, when the negligence of the plaintiff and the defendant has mutually co-operated in producing the injury, for which their action is brought. On this question, the following rules will be found established by the authorities. When there has been mutual negligence, and the negligence of each party was the proximate cause of the injury, no action whatever can be sustained. In the use of the words “proximate cause,” is meant negligence occurring at the time the injury happened. In such case no action can be sustained by either, for the reason, “ that as there can be no apportionment of damages, there can be no recovery.” So, where the negligence of the plaintiff is proximate, and that of the defendant remote, or consisting in some other matter than what occurred at the time of the injury, in such case no ac — 495 — tion can be sustained, for the reason that the immediate cause was the act of the plaintiff himself. | Under this rule falls that class of cases, where the injury arose from the want of ordinary or proper care on the part of the plaintiff, at the time of its commission. These principles are sustained hy Hill v. Warren, 2 Stark. R. 377. 7 Met. 274. 12 Met. 415. 5 Hill 282. 6 Hill 592. Williams v. Holland, 6 C. & P. 23. On the other hand, when the negligence of the defendants is proximate, and that- of the plaintiff remote, the action can then well he sustained, although the plaintiff is not entirely without fault. This seems to be now settled in England and in this country. Therefore, if there be negligence on the part of the plaintiff, yet if, at the time when the injury was committed, it might have been avoided by the defendant, in the exercise of reasonable care and prudence, an action will lie for the injury. So in this case, if the plaintiff were guilty of negligence, or even of positive wrong, in placing his horse in the road, the defendants were bound to the exercise of reasonable care and diligence in the use of their road and management of the engine and train, and if for want of that care the injury arose, they are liable. Such was the case of Davis v. Mann, 10 M. & W. 548 where one unlawfully left his fettered donkey in the highway, and it was killed, by the riegligence and carelessness of the defendant in the management of his horses and wagon, Lord Abinger “ held, that he might recover, though the animal was improperly there.” In that case the plaintiff was guilty of a wrong in putting his donkey in the highway, and of negligence in permitting him to remain there; but it would probably be considered remote, as the injury arose more directly from another cause. But the neglect of the defendant was proximate, as it occurred when the injury was committed, and as it might have been avoided by the exercise of reasonable care and prudence, he was held liable. In the case of The Mayor of Colchester v. Brooke, 53 E. C. L. 376. 1 Smith’s Lead. Cas. 312, it was held, that a person was not justified in running his vessel upon a bed of oysters, improperly placed in the channel of a navigable river, and which created a public nuisance. The wrong and negligence of the plaintiff, in placing and permitting that deposit to remain in that situation, did not justify the injury committed by the defendant, when it could have been avoided by the exercise of reasonable diligence and care. And this — 496 — rule is sustained in the following cases. Dimis v. Petley, 69 E. C. L. 282. 1 Man. & Gr. 568. 4 Bing. 628. 1 Ad. & El., N. S. 30. 3 M. & W. 244. 11 East. 60. 1 Scott N. C. 392. 9 C. & P. 613. These principles have an important application to the case under consideration. The negligence, which caused the injury in this case, cannot strictly be said to be proximate in either of the parties, but is remote, in both cases. It was remote on the part of the corporation ; for it is found in the case, that there was no negligence on their part in the management of the train, or engine, when the injury arose, but the neglect existed in not having previously made their fences and cattle guards. It was also remote on the part of the plaintiff, in permitting his horse to remain in the highway, exposed to such injury, after it first came to his knowledge. The injury arose from the combined result of both causes. If either of the parties had done their duty, and conformed to the requirements of the law, the injury would not have been sustained. In such case, no action can be sustained by either of the parties, no more than in the case, where their mutual negligence is the proximate cause of the injury; for the same reason exists in the one case, that exists in the other. From the nature of the case, there can be no apportionment of damages, and no rule can be laid hold of, that settles what one shall pay more than the other. The rule is generally given in the authorities, that in cases of mutual neglect, where it is of the same character ' and degree, no action can be sustained. This principle has uniformly been sustained in this state, for injuries arising from negligence on the highways. Noyes v. Morristown, 1 Vt. 353. Briggs v. Guilford, 8 Vt. 264. Allen v. Hancock, 16 Vt. 230. And that the rule is the same in relation to the use of Railroads, as to highways, has been directly held in Beers v. The Housatonic Railroad Co., 19 Conn. 567. Upon the facts in this case, the court charged the jury, “ That, “if the plaintiffs horse was in the highway by the permission of “the plaintiff, yet if the location of the defendants’ road was “ such, that by reason of the want of fences and cattle guards, it “ was rendered so unsafe and dangerous, as that the want of such “ fences and cattle guards, amounted to gross and culpable neglect “ on the part of the defendants, and thereby the plaintiff’s horse “ was killed, the defendants would be liable; but that if the plain — 497 — “tiff and defendants were equally negligent, the plaintiff could not “recover.” The difficulty, under this charge, arises from the want of more specific instructions as to the negligence of the plaintiff, and what would constitute such negligence. Simply to say, that if both the parties are equally negligent, the action cannot be sustained, leaves the whole subject of investigation too indefinite and general. The question of negligence is a mixed question of law and fact, upon which it was the duty of the court specifically to instruct the jury. "Where facts in the case are admitted, or where there is testimony tending to prove facts, it is the duty of the court, particularly when requested, to instruct the jury whether those facts, if they find them to be true, constitute that negligence which will defeat the action. So in this case, as there was testimony proving that the plaintiff’s horse was in the highway with his knowledge and consent, and had previously so been, the defendants had a right to request, and it was the duty of the court to charge the jury specifically, and as a matter of law, that that fact, if true, was that degree of negligence on his part, which rendered the case one of mutual negligence; and if, from that mutual negligence, the injury arose, that the action could not be sustained. For the want of this, we think there was error, and that the judgment of the county court must be reversed.