St. Johnsbury & Lake Champlain R. R. v. Hunt

[298] The opinion of the court was delivered by Rowell, J. The declaration alleges that the defendant had no cause of action against Collins, and as tending to show that he had, he offered to shoAV that plaintiff had neither fenced its road nor built cattle-guards along where the heifer Avas killed, and that she got. on to the track for want thereof. Although the defendant was not bound to show that he had a cause of action against Collins, for if he had probable cause to believe and did believe that he had, it was enough, and he might then lawfully sue and arrest Collins, as he did, even as against the plaintiff, though he did it Avith the motive alleged ; yet, if he saAv fit to assume the burden of showing that he had a cause of action, it was competent for him to do so, for as the greater includes the less, he would thereby be showing probable cause, and so the evidence should have been admitted if it bore on that question, as we think it did. When a railroad is completed and in running order, it is the statutory duty of the company to fence it Avith good and sufficient fences; and until its fences and cattle-guards are duly made, the corporation and its agents are made liable for the damage done by its agents or engines to cattle on the railroad, if occasioned by want of such fences and cattle-guards. R. L. ss. 3409, 3412. The question on this point is whether the word “ agents,” as first used in section 3412, includes engineers or not. The plaintiff contends that it does not, as they are the mere sciw-ants of the company, but embraces only those who by lease or other contract stand in place of the company, and control and operate the road. But Ave think the Avoi’d should be given a broader meaning, and Avas intended to embrace- such servants as engineers, who are in fact agents of the company, and are called so in section 3442, as are also firemen. In Clement v. Canfield, 28 Vt. 302, it was contended that a lessee of a railroad company Avas not of the class of agents referred to in the statute, but that those only are embraced Arho are under the control of the company, as engineers, conductors, [299] and the like. In the opinion tbe Chief Justice seems to regard engineers and conductors as unquestionably embraced, and goes on to show .that lessees are also embraced. The New York statute of 1848 was precisely like ours in this respect, and recived a similar construction in Suydam v. Moore & Losee, 8 Barb. 358. That was an action against an engineer and a fireman for killing a cow. The company had not erected fences nor made cattle-guards where the cow got on to the track, and the accident was nearly or quite inevitable, but the defendants were held liable. The court said that this neglect of the company had greatly increased the defendants’ liability, but that they were not bound to remain in its employment. That case is referí ed to approvingly in Corwin v. The New York & Erie R. R. Co. 13 N. Y. 50. When this case was before the court on demurrer to the declaration—55 Vt. 570—it was held that there was nothing-alleged to make the judgment in Hunt v. Collins an estoppel on this plaintiff. That judgment is now offered as evidence tending -to show that Hunt had a cause of action'against Collins. But if that judgment is any evidence in this behalf against the plaintiff it is conclusive evidence of probable cause for the suit in which it was rendered; Hathaway v. Allen, Brayt. 152; Reynolds v. Kennedy, 1 Wils. 232; Cloon v. Gerry, 13 Gray, 201—and as nothing now appears in this case to make that judgment conclusive on the plaintiff that did not appear before, the former decision on this point must stand, for a decision once made in a case is final and conclusive in the case in which it -is made. If before commencing suit against Collins the defendant took competent legal advice on a full and correct statement of all the material facts known to him, or that he had reason to believe existed, and acted honestly upon it, believing he had a cause of action, it is a defence here, because it affords probable cause for that suit; and the jury should have been so instructed. Snow v. Allen, 1 Stark. 502; Bayley, J., in Ravenga v. Mackintosh, 2 B. & C. 693; Stone v. Swift, 4 Pick. [300] 389; Stewart v. Sonneborn, 98 U. S. 187; 1 Am. Lead. Cas. (4th ed.) 215; Bigelow’s Lead. Cas. Torts, 200; Cooley Torts, 183. Judgment reversed and cause remanded.