38 Vt. 394 | Vt. | 1866
The opinion of the court was delivered by
This case was argued at the last term of this court upon general demurrer to the declaration, and held for consideration.
One of the grievances complained of in the first two counts is that the plaintiff’s cattle were killed upon a certain railroad known as the Vermont and Canada Railroad, by an engine or locomotive which the defendants were running upon said railroad, by reason of the want of cattle guards and fences where Ihe road crossed the plaintiff’s farm and at the plaintiff’s farm crossings on his land. The existence and necessity of such farm crossings are sufficiently alleged. The neglect of the defendants to fence their road through the plaintiff’s farm, as well as their neglect to construct cattle guards at'the plaintiff’s farm crossings, and the killing of the plaintiff’s cattle by an engine in the use of the defendants on the railroad in consequence of such neglect, are sufficiently averred.
It is not claimed by the defendants’ counsel but that the two first counts would be sufficient if the action were against a railroad corporation. But it is insisted that there is not sufficient alleged to entitle the plaintiff to recover against these defendants. It is claimed that the facts alleged do not show a duty resting on these defendants to make or maintain fences or cattle guards.
The statute provides that, “ each railroad corporation shall erect and maintain fences on the sides of their roads, so far as the same shall be necessary, of the height and strength of a division fence as required by law, and farm crossings of the road for the use of the proprietors of lands adjoining such railroad, and also construct and maintain cattle guards at all farm and road crossings, suitable and sufficient to prevent cattle and animals from getting on to the railroad. Until such fences and cattle guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses or other animals thereon if occasioned by want of such fences and cattle guards.” It is not alleged that the defendants are a railroad corporation or
But it is alleged in the first and second counts that the defendants by their servants, so carelessly, negligently and improperly drove, ran and used their locomotive in and along the railroad, that by and through the carelessness, negligence and improper conduct of the defendants by their servants in that behalf, the locomotive ran against and killed the plaintiff’s cattle. This shows a good cause of action at common law. The plaintiff is therefore entitled to recover for whatever damage was done to his cattle by any carelessness or negligence of the defendants or their servants in the manner of running their locomotive on the occasion in question, which comes fairly within the scope of this allegation.
Judgment of the county court reversed and judgment that the first and second counts of the declaration are sufficient, and that the third count is insufficient, and case remanded to the county court.