James Morse & Bro. v. Rutland & Burlington Railroad

The opinion of the court was delivered by Bennett, J. We think the principal question raised in this case must be governed by the case of Jackson v. Rutland § Burlington Railroad Company, 25 Vt. 150. The charter of this company enacts, “ that the corporation shall build and maintain a sufficient fence upon each side of their railroad, through the whole route thereof.” In Jackson’s case it was settled, that the duty imposed upon the corporation by their charter was not a general duty, but that the obligation to fence extends only to the adjoining owner, and to cattle lawfully upon his close. Jackson’s case is in accordance with the English cases. See Rickett v. East & West India Docks and Birmingham Junction Railway Company, 12 Eng. Law & Eq. 520. The case of Fawcett v. The York & North Medland Railway Company, 2 Eng. Law & Eq. 289, when rightly understood, is not opposed by the case in the 12tb. That case goes upon the ground that the duty to keep the gates closed, was a general duty, imposed upon the corporation at all times and under all circumstances, while in the case in the 12th of English Law and Equity, and in Jackson’s case, the- duty to build and maintain fences was held to be a limited duty. It has been argued that the provision in the general railroad law of 1849, in relation to fences, and which, it does not appear from Jackson’s case, was particularly brought to the notice of the court, should have led to a different result from the one arrived at in that case. But we apprehend not. The provision in the general railroad law is, “ that each railroad corporation shall erect and maintain fences on the sides of their road, so far as the same shall be necessary, of the height and strength of a division fence, as required by law, and farm crossings of tbe road for the use of the proprietors of lands adjoining such road; and also construct and maintain cattle guards at all farm and road crossings, suitable and sufficient to prevent cattle and other animals from getting on to the railroad”. If we were to regard this general railroad law as applicable to this company, and binding upon them, (which we do not find it necessary to decide,) we could not suppose that it was the [54] intention of the legislature to extend these duties beyond what they were extended by the terms of the charter; that is, not beyond the adjoining proprietor. The plaintiffs were then wrong doers in suffering their cows to stray upon the railroad track, and the case must be governed by Jackson’s case. "We do not see that the plaintiffs can complain of the charge of the court, in relation to the question of negligence in the defendants, in running their engine. It is claimed by the plaintiffs’ counsel to be negligence per se in the defendants, as matter of law, to run their engine so fast that it could not be checked after the cattle were discovered to be on the track, until the collision took place. But we think it was a question, under all the circumstances for the* jury, and that it was properly submitted to them to say whether, as matter of fact, there was a want of the requisite'care in the manner of running the engine, from its rate of speed, or in other respects. Judgment of the county court affirmed.