52 N.C. 468 | N.C. | 1860
The action was brought to recover the value of a cow which was killed on the defendant's railroad, by running over it with a locomotive. It was agreed that judgment should be rendered for the plaintiff for $30. *361 and costs of suit, unless, upon the further facts stated, the court should be of opinion in favor of defendant. The defendant was the proprietor of the track, by purchase, and for 100 feet on each side of it when the cow was killed, and the plaintiff was owner of no adjacent lands. The train at the time, being the passenger train, was running at its usual time and speed. The track of the road was not enclosed.
The defendant's counsel contended that the defendant was not responsible, because they were running their train according to their chartered rights, and the plaintiff was a trespasser, in the first instance, by suffering his cow to get upon the road of the defendant.
His Honor was of opinion against the defendant on the case agreed, and gave judgment accordingly, from which the defendant appealed. The case agreed presents the question whether it was the duty of the plaintiff to keep his cattle within his own enclosure, so as to prevent them from trespassing upon the road of the defendant. In England, where all or nearly all the lands are enclosed by the respective owners, the law requires that each proprietor shall keep his horses, cattle, and other livestock on his own premises, and if he permit them to go upon the land of another it will be a trespass, for which he will be held responsible. In the first settlement of this country (469) by our ancestors the condition of things was so entirely different that we were compelled to adopt another rule. Here only a very small part of the lands — that is, such as were actually in cultivation — were enclosed, and it was impossible for the proprietors to keep their comparatively numerous flocks and herds within the bounds of their enclosures. These flocks and herds were, therefore, allowed to go at large, and, as early as 1777, every planter was compelled, under a heavy penalty, to keep a sufficient fence, at least 5 feet high, about his cleared ground under cultivation during crop time. This was manifestly done to prevent disputes, and possible worse consequences, arising from damages done to growing crops by the ravages of livestock; and the act proceeds upon the assumption that the livestock, whether consisting of horses, cattle, or hogs, were not to be kept up by their owners, but might lawfully be permitted to range at large. The law, then, directly sanctioned what the necessities of the people required, to wit, the establishment of a general common because of vicinage throughout the State. See 2 Black. Com., 33.
As the plaintiff was not bound to keep up his cow, so as to prevent her from going on the road, we think that the defendant was prima facie *362
responsible for having killed her, and there is nothing stated in the case to vary that responsibility. Had it appeared that the engineer employed the usual mode for driving cattle from the track of the road by means of the steam whistle, then the defendant might have been excused under the authority of Aycock v. R. R.,
PER CURIAM. Affirmed.
Cited: Morrison v. Cornelius,
(470)