Neely V. Railroad Co.

Thp opinion of the court was delivered by MR. Chief Justice Simpson. The action below was brought to recover $125 alleged to be the value of a cow of plaintiff killed on defendant’s railroad track, at or near a crossing a short distance from Rock Hill depot. The jury rendered a verdict for plaintiff of $125. In the charge of his. honor, discussing section 1529, General Statutes, in which it is provided that “if a person is injured in his person or property by collision with the engine or cars of a railroad corporation at a crossing,” &c., he construed the words at a crossing to mean at or near a crossing, and he left it to the jury to decide whether or not the cow was killed near enough to [139] the crossing to render the defendant liable under section 1529, General Statutes. This charge is the basis of the only exception of defendant in the appeal. Section 1483, General Statutes, requires railroad corporations to ring a bell or sound a steam whistle at a distance of at least five hundred yards from the place where the railroad crosses any public highway or street or travelled place, to be kept ringing or whistling until the engine has crossed such highway or street or travelled place; in the neglect of which, by section 1529, supra, the corporation is made liable for any injury resulting from a collision at such crossing, unless it is shown that in addition to a mere want of ordinary care the person injured, &c., was at the time of the collision guilty of gross or wilful negligence, &c. Now, there can be no doubt, but that the object of these sections was to prevent collisions which might occur between persons attempting to cross the track of the railroad and the locomotive and cars approaching the crossing at the same moment, and the provisions of the act did not include, nor was the act intended to include, injuries inflicted upon by-standers not intending to cross, or upon cattle that happened to be killed or injured pasturing near by, but not upon the crossing or using it to pass from the one side to the other. The charge of the judge would seem to include injuries of this character, and we think this was error. We think it was error also for his honor to submit the question to the jury whether or not the killing was near enough to the crossing to bring the case under the “law of crossing,” as he expressed it, without first defining distinctly what the law of crossing was. He said to the jury, “Do you consider that that is near enough to the crossing to give Mr. Neely the protection which the law gives to a crossing?” This, it seems to us, was leaving the question of law as to the crossing to the jury, and as the jury may have been misled, we feel constrained to grant a new trial. And to that end, It is the judgment of this court, that the judgment of the Circuit Court be reversed.