81 N.C. 459 | N.C. | 1879
Among other instruction not set out in the record, the Court charged the jury "that if they believe from the evidence the defendant at the time of the killing was running a train which could not possibly be stopped within half a mile, this of itself was negligence, and would entitle the plaintiff to recover."
The rules of law require, in an action for damages resulting (462) from the negligence of the defendant or his agents and employees *325 while engaged in his service, that the plaintiff shall prove the negligence as a part of his case. Where injury to stock, straying off, is done by trains running at night, as well as by day, and known only to the defendant's employees, this was an almost impossible requirement. The owner would not know how, when, or by whom the injury was done, while the servants of the road would possess full knowledge of the facts. Hence the General Assembly enacted (Act of February 2, 1857) that if the action was prosecuted within six months, "when any cattle or other live stock shall be killed or injured by the engines or cars running upon any railroad, it shall be prima facie evidence of negligence on the part of the company in any suit against such company" (Bat. Rev., Chap. 16, Sec. 11), thus shifting the burden of proof from the plaintiff to the defendant, and requiring the latter to show the circumstances and repel the legal presumption. But where the facts are fully disclosed, and there is no controversy as to them, the Court must decided whether they make out a case of negligence, and if they failed to do this, the defendants are not to be held liable. Such we understand to be the purpose and effect of the statute, and that, all the facts appearing, the defendant is charged or acquitted, as negligence appears or is disproved. The cases where action has been brought for injury to stock from moving railway trains are numerous, and are collected and discussed by Mr. Redfield (1 Red., R. R., Chap. 18), and the rule of liability extracted therefrom seems to be this: If the owner permits his cattle to stray off and get upon the track, and they are killed or hurt, the company is not liable unless the company was carelessly running the train, or could by the exercise of proper care, after the animals were discovered, have avoided or prevented the injury. In other words, the company is not required to abate the usual and safe speed of their trains, lest (463) there may be cattle on the road which may be killed or injured; and if a proper lookout is kept up, and all reasonable efforts made when the obstruction is seen, to avoid the accident, the company is exempt from responsibility, and the injury is ascribed to the contributory negligence of the plaintiff, in permitting his stock to roam about and get on the road.
In the present case, the evidence shows that much rain fell during the night, and the water overflowing the ground the cattle had sought a drier spot near the trestle, and there were found next morning by the owner. The train is not shown to have been moving with unusual speed, nor were the number and weight of the cars constituting it proved, and hence we can not see how great was the momentum, which prevented an arrest of its motion until it had run over a half mile or more of the road. There is no apparent negligence in this, and it does affirmatively appear that when the cattle were first seen as white objects *326 on the road within the distance of thirty yards, the motion of the running train could not be arrested, if the force had been applied to the brakes in time to avoid the collision. We can see no blame justly attributable to the persons managing the cars.
The railroad system, traversing the country in all directions, contributes largely to the development of its agricultural, commercial and other resources, and this result is attained mainly by the certainty, regularity and rapidity with which the trains move and transportation is effected. These advantages are transferring a large bulk of the freight from water to this mode of internal land conveyance, and though occasional injury may be done to stock allowed to stray upon the road-bed, this inconvenience is greatly outweighed by the benefits conferred upon the whole country by railway transportation, and it would be an unwise policy to hamper the latter and diminish its usefulness by (464) needless restraints. We do not in the present case discover evidence of such culpability in running or conducting the train as should subject the defendant to liability to the plaintiff for the loss of his cattle. It is certainly not the fault of the former that they had sought and found a resting place upon the track, nor would any care or effort have been availing to avert the injury when they were first seen. It is the interest, not less than the duty of those in charge of moving trains, to avoid, whenever it can be done, any obstruction found upon the road, since it endangers the safety of the train itself and the persons and property upon it, and not less the persons in charge than others, and a much higher duty is owing to those to convey them safely.
Now, the instruction of the Court in substance is, that the inability to arrest the progress of a running train, in a less space than half a mile, whether the speed of its motion was fast or slow, or whether that fact could in any manner be the cause of the mischief, made the defendant responsible. In this we do not concur, because it leaves out of view the direct causal agency by which the damage was done, and, as the proof is, did not contribute to the result. We propose to examine the cases decided in our own Court on the subject.
In Herring v. R. R.,
In Scott v. R. R.,
In Aycock v. R. R.,
The facts in these cases occurred before the passage of the Act of 2 February, 1857, and the decisions were governed by the common law. We now propose to examine those made since the passage of the statute.
In Battle v. R. R.,
In Jones v. R. R.,
In Clark v. R. R.,
In Pippen v. R. R.,
In Proctor v. R. R.,
We think the cases do not conflict with our own reasonable construction of the act, and that this construction is calculated to secure all its intended benefits to those whose property is destroyed or injured in their absence by railway trains, without doing injustice to the company; and that when all the facts and circumstances of the accident are shown, the law itself will raise or refuse to raise the inference of neglect, upon which the liability of the company depends. The force of the presumption only applies when the facts are not known, or when from the testimony they are uncertain. In such cases the statute turns the scale and fixes the responsibility, and not when all the facts are well established. This seems to follow from the principle that negligence is a question of law, to be decided by the Court upon admitted or proved facts, and thus the law is uniformly and consistently administered. There is
Error.
Cited: Durham v. R. R.,