White v. Concord Railroad

Eastman, J. By § 45, ch. 150 Comp. Stat., (Laws of 1850, ch. 593, § 5,) it is enacted that “ every railroad corporation in this State shall make and maintain all necessary cattle guards, cattle passes, and farm crossings, for the convenience and safety of the land-owners along the side of their road. * * Provided, that the provisions of this sec — 202 — tion shall not apply in any case where the corporation have settled with the land-owner in relation to such guards, passes and farm crossings.” The eleventh section of the defendants’ charter also provides that “ if the said railroad, in the course thereof, shall intersect or cross any private way, the said corporation shall so construct said railroad as not to obstruct the safe and convenient use of such private way.” And further, “ said corporation shall have power to raise or lower such turnpike, highway or private way, so that the said railroad, if necessary, may conveniently pass over or under the same.” Laws 1835, ch. 1, private acts. The act of 1850 increased the duties of the defendants beyond those prescribed in their charter, and required that they should make 'cattle guards, cattle passes, and farm crossings, for the convenience and safety of the land-owners along the side of their road, in addition to the provisions of the charter in regard to private ways. Under this act, wherever it should become necessary to have a crossing, and one should be made, the land-owners "would have the right to use it in all proper and reasonable ways, vrith their teams, horses, cattle, sheep, &c. The act requires the crossing to be made for the convenience and safety of the land-owners, and they would consequently have the right to cross the road át all reasonable times, and of necessity the right to be upon the road while crossing. Having this right, they would lawfully and rightfully be upon the road, and the corporation could not injure their beasts thereon without liability for the damage, unless the injury should arise from inevitable accident, or through the fault of the owner. The law does not give the land-owners a use of the road which is paramount to that of the corporation, and they have not the right to use it in defiance of the corporation. They would not, for instance, have the right to drive upon the crossing, when they knew that a train was coming, and insist that the train should stop to suit their — 203 — convenience. The powers of the land-owners do not go to such an extent; they are subordinate to those of the corporation; but at the same time the statute gives them the right to cross the road in all reasonable ways and at all reasonable times; and having such a right, the corporation cannot wilfully destroy their property, nor excuse themselves in case of carelessness; they cannot be heard to say that they are liable only in case of gross negligence. The authorities which go to show that a railroad is uot liable for injuries, except in case of gross negligence, are founded upon the leading fact and principle that the plaintiff is himself in fault. We do not question the soundness of that position ; but the rule does not apply to a case where the plaintiff is rightfully upon the road, as provided by this statute. By the provisions of law, then, the plaintiff had the right to require of the defendants that the pass-way should be such as would insure safety in crossing the railroad in all legitimate ways and at all seasonable times, provided no settlement or contract should be made between him and the corporation, by which the defendants should be relieved from this liability. Was the contract between the parties of such a nature as to change the law ? As the law stood, the defendants could make the crossing over or under their road, in such a manner as not to interfere with the free and unobstructed use of the railroad at all hours, and so as to insure the safety of all persons, teams or animals that might cross the road. The corporation would thereby relieve themselves from all care whatever in the management of their engines and trains, so far as the plaintiff might be affected in this particular. But he saw fit to require that the defendants should prepare a crossing on a level with the track. A crossing under or over the road would not answer his purposes; for what reason, is left to conjecture. Perhaps such a crossing would, from the situation of the land, be of much less use to him; and the in — 204 — convenience in crossing with teams might be great upon any but a level path. The provision was also made in the deed that the defendants should fence the road; but this the law required, as well as a convenient and safe crossing. The only variance between the law and the contract, consists in the absolute requirement in the deed that the crossing should be on a level with the track. Did the contract change the liability of the defendants ? We have reflected upon the clause in the deed with some care, and not without some doubt as to the true construction to be put upon it. But our conclusion is, that it was not intended to change the legal duties and liabilities of the parties. The plaintiff chose not to leave the matter with the corporation to say what the position of the crossing should be; and he chose further, to make it a part of the condition of the conveyance, that the crossing should be on a level with the track. And the defendants took the land with this condition attached. They agreed that the crossing should be made on the level, instead of over or under the road, or in such way as they might choose to make it; and in thus agreeing, no legal liabilities as to the use of the pass-way or the safety of the cattle in crossing, were changed; but the defendants took upon themselves the additional risk of a crossing on the level with the track, for the sake of obtaining the deed. The defendants having put up gates at this crossing, and the plaintiff having insisted that they should be removed, he might perhaps suppose that the corporation would make a crossing over or under their road; and hence he might require that it should be on a level with the track. This act of the corporation, in putting up gates, would also seem to show on whom they supposed the liability would rest in case of the destruction of property, under ordinary circumstances, at this crossing ; that it would be upon themselves. And if the parties had intended to change their legal rights — 205 — and liabilities by the provision in the deed, it would have been very easy to have added a clause to that effect. With this view of the position of the parties and the law, we think that the plaintiff’s pasture being divided by the track of the railroad into two nearly equal parts, one of which was destitute of water in the dry season, the provision for cattle guards implies that the crossing was to be used by loose cattle in the pasture, not under the care of a driver or herdsman ; that the contract of the deed contemplates that the cattle and animals of the plaintiff were to be placed in the pasture, and there left to take care of themselves, according to their natural instincts, to pass from one part of the pasture to the other for food and water, at their pleasure. It was, therefore, neither the fault nor the negligence of the plaintiff that the animals were upon the track, because that was a contingency which the contract contemplated, and which was unavoidable, from the well known habits and character of such creatures. The putting of a man’s cattle into his own pasture, and leaving them there to their own guidance, cannot be deemed carelessness on the part of the land-owner. Ordinary care and diligence do not require an attendant. In case of crossing with a team, ordinary care would require that it should not be driven upon the road at such times as the cars are known or expected to pass; or in ease of driving cattle across the road, ordinary care would require similar prudence in regard to the time. But where the animals run at large in the pasture, ordinary care and diligence would not require the plaintiff to keep a “ look-out” at the crossing to prevent their going upon the track when the cars were expected, or were in sight, or the whistle was blown. Such care would be extraordinary for the owner of land to exercise, and from the frequency with which the engines and cars pass over this road, and the unavoidable irregularities which sometimes occur, it might subject this plaintiff to an v mount of expense greater than the — 206 — income or even value of his pasture. It is quite evident that the plaintiff would never have agreed to the contract, had he supposed that he was to keep a “ look-out” at this crossing, or run the risk of having his animals in the pasture destroyed without redress. The evidence here tended to show that these animals were running loose in the pasture, and were attempting to cross the road at the time they were killed. There is no suggestion to the contrary ; and such we take to be the fact. This being the case, the plaintiff having the right to have his creatures cross the road, and to run at large in his pasture, he was using all the care that the law required of him, under the circumstances, all that was necessary to bestow upon animals running loose in his pasture. Ordinary care and diligence thus appearing on the part of the plaintiff, was the alleged negligence and want of proper care, on the part of the defendants, shown, as set forth in the declaration ? In regard to the colt, the case finds that he was killed by the engine, at the crossing, and that evidence was introduced showing the condition of the track, and the manner in which the defendants were running their train at the time the colt was killed. And upon this evidence the counsel requested the court to instruct the jury that the defendants were not liable except for gross negligence. This the court declined to do; and, as we think, and according to the opinion already expressed, correctly. The colt being rightfully upon the road, it was only necessary to show carelessness, ordinary negligence. 'With regard to the cow, the evidence was, that immediately after the passing of the defendants’ freight train, she was found at the side of the track, in a dying state, and appeared to have been struck by the engine. The defendants introduced no evidence in explanation, and the court instructed the jury that in the absence of explanation, it would be presumed that the injury was not accidental, but was either wilful or the result of carelessness; that the defend — 207 — ants would not be answerable for a wilful injury by their servants, but were for negligence. Was this instruction correct? Was the evidence competent to be submitted to the jury as evidence of negligence ? There is no pretence that the act was a u'ilful one. The plaintiff makes no such claim; and the jury, by their verdict, have negatived any such fact. The idea of design being thus excluded, the evidence shows either negligence or accident. And we take the law to be, that if a party shows himself to be in the rightful exercise of his property or privileges, and while so exercising them, an injury or damage is done to his person or property by another, such injury is not presumed to be accidental or excusable, but the injury being shown, the burden of the proof is on the defendant to lay before the jury such circumstances as shall exonerate him from responsibility. The damage being proved, the defendant is auswerable for negligence, unless he shows a want of blame on his part. The injury to the property is of itself evidence of negligence. As, then, the cow was rightfully upon the crossing, and was killed by the defendants, the burden of proof was upon them to show that it was done by no fault of theirs, but by some accident, or by the fault of the plaintiff; and the ruling of the court was correct in regard to the presumption arising upon such a state of facts. The evidence was competent to show negligence, and that being shown, it was for the defendants to exculpate themselves. Ellis v. Railroad Co., 2 Iredell’s Rep. 138; Suydam v. Moore, 8 Barb. Sup. Ct. Rep. 358. In the case last cited, the railroad company were required by law to keep up fences on the sides of their road, and to construct and maintain cattle guards at road crossings ; the plaintiff’s cow came upon the track, and was run over and killed; and it was held that the company, or its agents, were liable to the owner of the cow, without any further proof of negligence. — 208 — Taking the whole ease together, it seems to us to amount to this: Tlje plaintiff’s pasture was cut in twain by the railroad, and he had the right to have his cattle graze in the pasture without a herdsman, and to cross the track from one pasture to the other, according to their inclination. This the law and his contract with the defendants gave him. Prima facie his animals were rightfully upon the track, and ordinary care and diligence did not require that he should keep any one to watch them; there was no fault in him in their being there. It was enough, then, for the plaintiff to show, in the first instance, that the animals were killed by the defendants’ engines, to sustain his action. That made out a case of negligence. There was no occasion to show gross negligence, for his animals were rightfully on the track. Having the right to have the creatures on the track, and showing that they were killed by the defendants, it then devolved upon them to show that they were'destroyed without fault of theirs. The evidence in regard to the value of the colt was admissible, upon the authority of Whipple v. Walpole, 10 N. H. Rep. 131. In that case, the witness was asked what horses like those lost by the plaintiff'cost at Charlestown, in this State, near which place the loss occurred, &c., and the question was held admissible. In this case, the plaintiff was permitted to prove the price for which another colt of the same age as the one lost, and sired by the same horse, but not so good as the plaintiff’s, was sold in the vicinity, the spring before the loss. Both of these cases would appear to trench somewhat upon the rule excluding the opinion of witnesses, for both necessarily imply a comparison and an opinion, to some extent, between the horses lost and sold. But this is a rule oftentimes difficult to enforce with strict accuracy; and we think that the decision in Whipple v. Walpole would justify the admission of the evidence in this case. The expression in the case, “ but not so good as his colt,” appears to be the condensed statement of the pre — 209 — siding justice of the effect of the evidence, and not the •direct opinion of the witness. This, as we view it, disposes of all the questions raised by the case, as transferred. But counsel, in their argument, have taken the position that the declaration does not allege that the cattle were rightfully crossing or rightfully upon the track; that this is an essential allegation, proof of which was necessary to maintain the action. As no question of this kind is presented by the case, it would be unnecessary for the court to express any opinion in regard to it. But as we have examined the matter somewhat, wre think it proper to say that, upon investigation, we are of opinion that after verdict the declaration is sufficient. Our impression also is that it would be good upon demurrer. The declaration states that the animals were passing over and across the railroad of the defendants, from the plaintiff’s land on one side of the railroad to the plaintiff’s land on the other, through and along an open crossing, prepared by the defendants for the purpose of enabling the horses and cattle of the plaintiff, on both sides of the railroad, to pass from one side of the road to the other, through and along the same. The law, upon these facts, would seem to make the plaintiff’s animals rightfully upon the road. As matter of caution, however, in pleading, it would have been well to have stated that they were rightfully crossing the railroad, and were rightfully upon the track. But after verdict, it is quite clear that the declaration is sufficient. If the general terms of a declaration are broad enough to comprehend the proof, and if enough appears upon it to show that the plaintiff has a good cause of action, all defects will be regarded as cured by the finding of the jury. After trial, and verdict for the plaintiff, judgment will not be arrested, unless the record shows a clearly defective cause of action. Every intendment is to be made in favor of the declaration, and whatever is implied in or inferable from the finding of the jury, will be presumed in favor of the verdict. Sewall’s — 210 — Falls Bridge v. Fisk & Norcross, 3 Foster’s Rep. 171; and various authorities there cited. Our opinion is that the defendants are without any valid defence to the action, and that there must be Judgment on the verdict.