41 W. Va. 722 | W. Va. | 1896
Lead Opinion
This was a civil action brought by G. W. Kirk against the Norfolk & Western Railroad Company, before T. J. Mead, a justice of the peace of Logan county, for a wrong
In the complaint filed before the justice, the plaintiff alleged that between the 1st day of October, 1892, and the 1st day of March, 1893, the defendant killed three oxen, and crippled another one, which belonged to the plaintiff, of the value of forty five dollars each for two that were killed and sixty five dollars for the other, and twenty five dollars for the one that was crippled.
On the 17th day of June, 1893, the ease was heard, and judgment rendered for the plaintiff for one hundred and sixty dollars, with interest till paid and costs. An appeal was taken to the circuit court. An amended complaint was filed. The plea of not guilty was interposed. Issue was joined. A jury was waived, and the matters of law and fact were submitted to the court, and resulted in a finding for the plaintiff, and assessing his damages at one hundred and twenty five dollars. The defendant moved the court to set aside its finding, as contrary to the law and the evidence, and grant it a new trial, which motion the court overruled, and entered judgment for the plaintiff, The defendant excepted, and took a bill of exceptions, setting forth the evidence introduced upon the trial of said cause, and thereupon the defendant applied for and obtained this writ of error.
Now, the injuries complained of occurred at different times. The evidence shows that about the 15th day of December, 1892, the plaintiff found one of his work oxen had been killed, about one hundred yards below the Yin-son switch, on the Norfolk & Western Railroad, in Logan county, W. Ya. The steer was badly bruised up, and some of its limbs broken, and it was lying by the side of the railroad track. He did not see it killed. It was worth forty dollars. This was all the evidence adduced in regard to the killing of this steer. The testimony is entirely silent as to the circumstances under which it was killed. So far as appears, it may have been killed in the night, when it could not have been seen. It may have come suddenly on to the railroad track and rm negligence could prop
About the 15th of January, 1893, the plaintiff had another steer killed, and a fourth one crippled, at or near Vinson switch, in said county. lie did not see it done. The one killed was found lying near the track, and the crippled one was also found near the railroad track. The one killed was worth forty dollars, and the damage done the crippled one was at least twenty five dollars. The only testimony-in regard to the circumstances of this last occurrence is that detailed by one William Kirk, who states that ho was working near said Vinson switch, hauling saw logs; that a short time before the killing of this last steer and crippling another at said switch, about the loth day of January, 1893, some salt had been used at said switch, and it attracted the cattle which were being used there to haul saw logs; that the railroad at that point, and for some distance above and below, was not inclosed in any way, there being no station or depot, only a switch to receive saw logs
It is contended by counsel for the defendant in error that the use of salt in thawing out the switches, and thus pre
On appeal, however, to the circuit court, the plaintiff filed an amended complaint, in which he alleged that the defendant, on the last day of January, 1893, unlawfully killed and appropriated to its own use three oxen of the plaintiff of great value, to wit, of the value of one hundred and twenty five dollars; and the testimony shows that one of said oxen was lying on the Breeden switch, with both of its hind legs broken; and, as it was in good order, the plaintiff proposed to take charge of it, and use it for beef, but the section foreman refused to let him have it, and the steer was buried by said foreman, and workmen under his control. The witness also states that this steer was worth sixty dollars; but as we can not say whether this valuation applied to the steer in its crippled or mutilated condition, to the value of its carcass for beef, or to the steer as it stood on the railroad when struck by the train, we are of opinion that the circuit court had before it no data by
For these reasons, the judgment complained of must be reversed, the finding set aside, and the case remanded.
We hold the company not responsible for killing or crippling the cattle, but we think it responsible for not yielding to the owner one of the cattle after it was killed, and demanded by the owner, and as the complaint called for damages for its conversion, the plaintiff ought to have judgment for that much for its conversion. But no evidence showed its value when dead, and therefore only nominal damages could be given for it. As we do not know how much to subtract for that steer from the amount of damages found against the company, and could only subtract nominal damages, we can not say the amount of grievance to the company is reduced below the jurisdictional amount of one hundred dollars.
Dissenting Opinion
I dissent from the conclusion in this case, for the reason that in my view of it the plaintiff was entitled to recover not less than thirty dollars, which would reduce the residue of the recovery below the jurisdiction of this Court, and therefore the appeal, in any event, should have been dismissed for want of jurisdiction, in accordance with the settled rule established in the case of Love v. Pickens, 26 W. Va. 341, as follows, to wit: "To give this Court jurisdiction in a cause involving matters simply pecuniary, the record must show not only that the party complaining has been prejudiced by the decree or judgment of the inferior court, but also that the amount in controversy in this Court exceeds the value of one hundred dollars, exclusive of costs.” In short, every presumption in this Court is in favor of the judgment, and the duty devolves upon
But the merits of this case are with the plaintiff. It is the law that in the country where the railroad is not fenced, and cattle are legally permitted to run at large, the company must use at least ordinary care to prevent the injury of stock wandering on the track. The use of salt or anything else that attracts stock upon the track is not ordinary care. If the company would merely scatter the salt along its tracks without excuse for so doing, no one would for an instant pretend that such conduct was not negligence, in the highest degree criminal, creating a nuisance or trap to lure such domestic animals whose systems crave salt to their certain destruction. The company having done this, the question is, has it furnished an unavoidable, justifiable, and reasonable excuse for so doing: It introduced a witness Moloney, who testified, “that he was in the employ of the defendant as road supervisor on the Kenova Division of said railroad, from Kenova to the mouth of the Pigeon; that the road where the injuries complained of occurred was under his supervision; that in cold, frozen, snowy weather the frogs at switches along said line of railroad would get frozen up, and would become dangerous to run trains along said road; that there had been some cold, snowy weather in December, 1892, and that he applied to the superintendent of the division for salt to apply to said switches, by which means they could be kept open, to avoid danger to running trains; that the superintendent refused to send it, unless it was absolutely necessary to use it, as the use of it would attract stock; that some time in January, during a severe spell of weather, it became absolutely necessary to use salt, for the safety of the trains, and several barrels were sent to him to use along his division, and that he distributed it along the line of said road, to be used at the switches and stations, and it was so used, part of it being used at the said Vinson switch prior to the killing and crippling of the steers, about January 15,1893; that the use
To say that the use of salt is the only effective mode of freeing frogs and switches from ice and snow in cold weather is to close our eyes to ordinary human experience. But to say that the use of salt is the only effective mode of freeing frogs and switches from ice and snow in cold weather without an additional expense for manual labor and proper lubricants is, no doubt, true. If the company adopt the cheaper of two modes to accomplish the same purpose, it is no more than justice to require it to provide against the increased danger, occasioned by its choice, to the property of others. If, necessarily, I must maintain for my own benefit that which may be a nuisance to my neighbors, and I can provide against its dangerous character, it is my duty to do so, or be responsible to my neighbor for his loss resulting from my neglect. The company knew that the use of the salt in this instance would result just as it did. It, by a small additional expenditure of labor and money, could have provided against it. This it failed to do, and therefore it should be made to pay the damage. In my opinion, the judgment is just, and should be affirmed.