Norfolk & Western R. R. v. McGavock's Adm'rs

FaüNtleroy, J., delivered the opinion of the court. [508] This suit is au action of trespass on the case for killing and injuring the horses and mule of the plaintiff’s intestate, by the defendant company’s cars operated upon the road, and by the agents and servants of the said company, at a point where the defendant’s railway passes through the enclosed lands of the plaintiff’s intestate, and where the defendant was required to fence or enclose its roadbed by section 1258 of the Code, and which it had not done. The facts, of the killing and injuring of the horses and mule, as charged in the declaration, upon the enclosed land of the plaintiffs intestate; and the failure of the.defendant to fence its roadway through the said lands; and the assessed value of the said horses and mule, so killed by the defendant’s cars, agents, and servants, were all proved by the evidence, and the jury returned a verdict for the plaintiffs for $664 67. Whereupon the defendant moved the court to set the verdict aside as being contrary to the law and the evidence, and to grant it a new trial, and moved in arrest of judgment: which motions, the court overruled, and entered judgment upon the verdict for $664 67, with interest from the date of the verdict and the costs. The statute, section 1258, Code of 1887, requires the defendant company to erect along its line of railroad through the enclosed land of the plaintifis’ intestate, a lawful fence on both sides of its roadway, as defined in section 2038, which may be made of timber or wire, or oí both, and keep the same in proper repair, and with which the owners of adjoining lands may connect their fences as they may deem proper, &c.; and section 1261 provides, that in any action or suit against a railroad company for an injury to any property, on any part of its track not enclosed according to the provisions of this chapter, it shall not be necessary for the claimant to show that the injury .was caused by the negligence of the company, its employees, agents, or servants. ■ The first assignment of error is the refusal of the court to [509] permit the defendant company to introduce witnesses to show that the defendant railroad company was not bound to fence its roadway at the point where the said horses and mule of the plaintiffs’ intestate were killed by it, because the said intestate himself had erected a fence, which was a lawful fence, at that point between his land and the roadway of the defendant company passing through his enclosed land; and that, therefore, the defendant company was not liable for injury done by it to the plaintiffs intestate’s stock at that point. The court did not err in excluding this testimony. The failure of the company to erect a lawful fence along the line of' its roadway, between the enclosed land of the plaintiffs’ intestate and its roadway, as expressly required by_ law, makes it amenable to the penal sanction of the law for its neglect or violation of the requirement of the law, and the fact that the owner of the land has, himself, endeavored to protect his stock rangingupon his enclosed land, by building a fence, does not condone or excuse the disobedience to and neglect of the mandate of the law by the railroad defendant company, and the owner of stock getting injured by the railroad cars or servants at a point on its line through his enclosed land, is entitled to recover for the injury or killing of his stock, if the defendant company has failed or refused to comply with the law requiring it to erect and keep in order, at that point, a lawful fence. (See sections 1258, 1259, 1266, 2038, and 1261, chapter 52, Code of 1887; 7 Amer. & English Ency. of Law, p. 907 and p. 927, and cases cited in note 2, and p. 934 and note 2.) The court did not err in refusing to instruct the jury “ that although they shall believe from the evidence that-the horses and stock of the plaintiffs’ intestate were killed and injured on the railroad of the defendant company by the cars of the defendant company in charge of the servants, agents, and employees of the defendant company as charged in the declaration, nevertheless, if they shall believe from the evidence that there was a lawful fence along the roadbed of the defendant [510] company between its land and that of the said decedent at the place where the said injury occurred, erected there by the said decedent, or by his administrator, then the court instructs the jury that, under the statute, such a fence is sufficient; and, in the absence of gross negligence, they will find for the defendant.” And the court did not err in instructing the jury “ that if they shall believe from the evidence that the horses and stock of the plaintiff’s intestate were killed and injured on the railroad of the defendant company by the cars of the defendant company in charge of the servants, agents, and employees of the defendant company as charged in the declaration ; and shall further believe from the evidence that the said horses and stock were so killed and injured by the defendant company at a point on the said railroad, at which the said railroad passes through the land of the said decedent, Randall McGavock; and shall further believe from the evidence that the defendant company failed to fence its right of way or roadbed through the enclosed land of the said decedent at the place of said injury, then the court instructs the jury that they shall find for the plaintiffs and assess their damages at such sum as to the jury shall seem right, based on the evidence as to the value of said stock at the time the same was killed and injured.” The court did not err in overruling the motions to set the verdict aside and in arrest of judgment; and the judgment of the circuit court of Wythe county is without error, and is affirmed.