Black v. Aberdeen & West End Railroad, 20 S.E. 713

Black v. Aberdeen & West End Railroad

20 S.E. 713 | N.C. | 1894

Concurrence Opinion

A very, J.

(concurring): Concurring fully with the majority of the Court in the judgment announced, I deem it best to state a little more explicitly the grounds upon which I *673rest my opinion. ■ The right-of-way of railroads is, by judgment of condemnation, made subject to occupation whenever the corporation finds it necessary to use it .in furtherance of the ends for which the company was created. In assessing the damages it must be assumed that the estimate is not based upon the idea of the exclusive occupation and perception of the profits of the whole of the condemned land by the corporation, but upon the more reasonable view that only so much of the territory will be subjected to occupation and exclusive dominion as is necessary for tracks, ditches and houses to be used for stations and section hands, while outside of this the owner of the servient tenement will be unmolested, except where entry is made for the purpose of removing something that endangers the safety of passengers traveling on the railroad, or that may subject the company to liability for injury to adjacent lands or property. This is the principle to which this Court has given its sanction in Ward v. Railroad, 113 N. C., 566, in the same casa 109 N. C., 358, and in Hinkle v. Railroad, 109 N. C., 472.

Lead Opinion

The control which railroad companies have over the land covered by their rights of way is given to them that they may properly perform theirquasi-public duties. They have the authority to keep the land thus subjected to their use in such condition that their use of it will not endanger the property of others. Having this authority, they must exercise it, or else pay for such damage as comes to one who, himself being free from fault, suffers injury from a neglect to keep it in the required condition.

We think the charge of his Honor very properly presented the matter to the jury. The concluding sentence of this charge, as set out in the record, was itself a sufficient statement of the law applicable to the facts of this case.

There was a motion made before us to dismiss the action because the complaint did not state facts sufficient to constitute a cause of action. The allegation of the complaint is that the defendant "negligently permitted fire to be communicated from their engines or property to the lands adjoining their railroad and right of way, by which said fire, the spread and extension thereof, plaintiff's said turpentine was burned and *466 destroyed." This was a sufficient allegation of negligence on the part of defendant, resulting in damage to the plaintiff, and it was supported on the trial by evidence sufficient, if believed by the jury, to establish those facts upon which the liability of the defendant to the plaintiff depended, which are succinctly stated in the closing portion of the charge.

No error.

Lead Opinion

Burwell, J.:

The control which railroad companies have over the land covered by their rights-of-way is given to them that they may properly perform their quasi public duties. They have the authority to keep the land thus subjected to their use in such condition that théir use of it will not endanger the property of others. Having this authority, they must exercise it, or else pay for such damage as comes to one who, himself being free from fault, suffers injury from a neglect to keep it in the required condition.

There was a motion made before us to dismiss the action because the complaint did not state facts sufficient to constitute a cause of action. The allegation of the complaint is that the defendant “ negligently permitted fire to be communicated from their engines or property, to the lands adjoining their railroad and right-of-way, by which said fire, the spread and extension thereof, plaintiff’s said turpentine was burned and destroyed.” This was a sufficient allegation of negligence on the part of defendant, resulting in damage to the plaintiff, and it was supported on the trial by evidence sufficient, if believed by the jury, to establish those facts upon which the liability of the defendant to the plaintiff depended, which are succinctly stated in the closing portion of the charge. No Error.