Mead v. Burlington & Lamoille Railroad

The opinion of the court was delivered by Ross, J. The principal question raised by the requests of the defendant is, whether the plaintiff was guilty of contributory negligence in regard to the destruction of his cows by the defendant’s engine. Whether this principle has any application to the facts of the case, as it was before the County Court, and whether that [282] court erred in refusing the defendant’s requests, must be determined by the relative rights and duties of the parties towards each other, and the subject-matter in controversy as determined and fixed by the statute. Section 47, c. 28, Gen. Sts., casts upon the defendant the duty and burden of erecting and maintaining a legal fence upon the sides of its road, and cattle guards “ suitable and sufficient to prevent cattle and animals from getting on to the railroad”; and provides that “ until such fences and cattle guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by its agents or engines to cattle, horses, or other animals thereon, occasioned by want of such fences or cattle guards. After such fences and guards shall be duly made, the corporation shall not be liable for any such damages unless negligently or wilfully done.” This statute prescribes the defendant’s duty in regard to fencing its road, and its liability for injuries done by its trains to cattle while its road remained unfenced. This duty and liability the defendant was under to the plaintiff as an adjoining land owner. Jackson v. Rutland & Burlington Railroad Co. 25 Vt. 150; Morse v. Same, 27 Vt. 49; Bemis v. Connecticut & Passumpsic Rivers Railroad Co. 42 Vt. 875. The Legislature had the power and right to impose this duty and liability upon the defendant. Thorpe v. Rutland & Burlington Railroad Co. 27 Vt. 140. One object of the required fences along the defendant’s road through the plaintiff’s meadow was to protect the plaintiff’s cattle byrestraining them from entering upon the road, where they were liable to be injured by the running of trains. When the defendant commenced running trains over its road, unfenced adjoining the plaintiff’s meadow, it ran them at its peril as regards the plaintiff’s cattle lawfully upon his meadow, with its duty to him and them undischarged in regard to the erection of the fences. The statute in terms prescribes the liability and penalty it thereby incurred. The act of thus running trains was negligence towards the plaintiff and his cattle because of the undischarged duty in that respect, and it was this negligence that injured the plaintiff in the destruction of his cows. The plaintiff owed no duty to [283] the defendant to keep his cattle from its railroad track unfenced, nor to refrain from turning his cattle into his meadow. He rightfully turned them into the meadow, nor was he bound to watch them while there, to keep them from entering upon the defendant’s railroad. Hence, in what the plaintiff did he disregarded no duty he was under to the defendant, and was guilty of no negligence in that behalf. Negligence from one party towards another exists only where the former does, or fails to do, some act which brings him short in the discharge of his legal duty relatively to the latter. Inasmuch, therefore, as the plaintiff had the right to turn his cows upon his meadow for pasturage or any other lawful and proper purpose, and was under no duty to the defendant to restrain them from passing upon the defendant’s railroad track, but the defendant was under a duty to the plaintiff, by the express terms of the statute, so to debar the plaintiff’s cattle, no negligence is predicable of the act of the plaintiff in that behalf, but there is, of the omission of the defendant to discharge its statutory duty. Hence, on the facts' before the County Court, under the law the question of contributory negligence did not arise, and the defendant’s requests relating to that subject were properly refused. The plaintiff’s relation to the defendant’s railroad track through his meadow in regard to restraining his cattle from entering thereon, is essentially different from that of a traveller to a town, or a highway, for the sufficiency of which the town is liable. The town is under a legal duty to provide the traveller a reasonably safe highway to pass over, but in passing over it, the traveller is under a duty relatively to the town to use the highway as a careful and prudent traveller should. The statute relieved the plaintiff of any duty to the defendant in restraining his cattle from the unfenced track of the defendant running through his meadow, and cast all that duty upon the defendant, and prescribed its liability to the plaintiff for the non-discharge of such duty. The defendant now claims that the court erred in not submitting to the jury to find whether the injury to his cows was occasioned by the want of fences. No such question appears to have been [284] raised in the County Court. But if it had been raised, in the absence of all testimony tending to show that such damage was occasioned by any other means, in any other way or manner, and the cause shown being ample, the court were warranted in directing a verdict, on this branch of the case, for the plaintiff. Judgment affirmed.