53 Ky. 75 | Ky. Ct. App. | 1853
delivered the opinion of the court.
Robert Milton, plaintiff, sued the Louisville and Frankfort Railroad Company, and presented in Ms petition, in separate paragraphs, as the grounds of Ms action, that the company, by their agents, had destroyed at different times, first, a brown mare, secondly, a sorrel horse, and thirdly, a cow and some hogs; all the property of the plaintiff, and in his possession. That tbey were destroyed whilst they were feeding within and upon the field or pasture of the plaintiff, in and through which the railroad of the company was situate and passed, and when they were upon or near the railroad; that the animals were destroyed by the locomotive and cars of the company having-been run upon or over them, whilst they were near or upon that part of the road which passed through the plaintiff’s field or pasture, through the negligence and carelessness of the company’s engineers, agents and conductors, in not giving the animals time to get out of the way, in not driving them off from the road, and by reason of their negligent arid improper manner of running the said locomotive and cars upon them.
So it appears that the plaintiff bases his right to a recovery in the case, upon the charge of the careless - ness and negligence of the company’s agents. The defendants deny that the injuries complained of were caused by tho negligence, carelessness, or want of skill of the agents employed to run and conduct the trains upon the road, but rather by the improper eon duct and negligence of the plaintiff, in permitting hki stock to roam at large and to stray upon the rail - road.
The jury, after having heard the evidence, and af ter having been instructed upon the law applicable to the case, by the court, returned their verdict in fa vor of tho plaintiff, for twelve dollars, in damages; whereupon, the court gave judgment for the damages and costs of suit.
lst. The verdict of the jury was not supported by the proof, and unauthorized by law..
2d. Because the court misdirected the jury in respect to the law of the case.
From the amount of the damages found by the verdict, and from the proof in the cause, it is inferred that the jury regarded the company as only responsible for the value of the cow, and that with respect to the other animals, to-wit: the mare, the horse, and the hogs, that the proof did not justify a verdict for their value against the company.
John W. Byers was the only witness who proved that the cow was destroyed by the locomotive and train of the company. He proves, in substance, that the locomotive and train ran upon and destroyed the plaintiffs cow on that part of the track where it passes through the plaintiff’s pasture. That when he first saw the cow, she was trotting along on the track about one hundred yards in advance of the train, which was running at its usual speed. That when the train first came in view, he heard the sound of the whistle, and continued to hear it sounding until the train struck and killed the cow. The witness did not perceive that any eilbrt was made to stop the train.
Upon this state of pleadings and proof, the circuit judge overruled the motion of defendants’ attorney to instruct the jury as follows:
“The plaintiff, in permitting his stock to go at large in his field, through which the road of defendants passed, and said stock to go upon defendants road, in the way of the passage of defendants cars, was guilty of such a want of care on his part, as to prevent him from maintaining this action, and they must find for defendants.”
It is assigned for error, that the circuit judge refused to give this instruction. But no error in this was
On motion of the plaintiff’s attorney the court instructed the jury: “That although the plaintiff granted to defendants the right of way for their said road, through his, plaintiff’s field or pasture, he, plaintiff, did not, by such grant, bind himself to make a fence on both sides of said road, through said field or pas • Lure, or deprive himself of the use of said field or pasture, by suffering his horses, cattle, and other stock to'be and remain on said field and pasture.”
The plaintiff acts with his eyes open. He knows his pasture is not inclosed, that his stock, unconscious of the danger, will, in feeding, probably intrude upon the railroad, which he has himself agreed ma.y be run through his field. He knows the immense velocity and tremendous force with which the trains are driven upon these railroads, and the consequent imminent danger of destruction, if any obstruction should be encountered, which would thereby be incurred by the company’s train, and by the persons and property thereby conveyed; and finally, he knows that the legal purpose and policy in the construction of railroads, and the incorporation of railrcjad companies is, to have conveyed, freight and passengers, property and persons, with the greatest possible speed through the country, and thus to save time, to cheapen travel and transportation, and promote the commercial prosperity of the country. And knowing all this, if the plaintiff chooses to permit his stock to have access to the defendants’ railroad, and loss and destruction are the involuntary consequence, the railroad company ought not, and cannot be held responsible, unless it can be shown that such loss and destruction were caused by the wanton and reckless negligence of the company’s agents, or in other words, the company cannot be held responsible, unless the injury could have been avoided by the company’s agents, with due regard to the safety of the train and its contents; or if the destruction of the plaintiff’s stock, in this particular case, was accidental, and not intentional, the loss should fall on the plaintiff, and properly, because he chose to encounter such risk by permitting his
The instruction marked A, quoted above, should therefore have been refused as misleading, or otherwise as containing mere abstract propositions, which if true, could not solve the legal question presented in the case. The instructions B and 0, were properly overruled by the court, but the instructions given by the court as substitutes, or in lieu thereof, marked thus, X, XX, being inconsistent with the views of this court, of the principles of law, as applicable to the facts of this case, should have been withheld from the jury. They were misleading, and did not state with sufficient accuracy and precision the proposition of law applicable to the case.
The court, however, upon the defendants motion, gave the following instruction, which, as it is consistent with the views of this court as above expressed, and presents the proposition of law as applicable to this case correctly, is extracted from the record and adopted as a part of this opinion : “That if they believe from the proof, that the plaintiff suffered his stock to go at large, and that they strayed upon the track of the rail[road,] and were there killed accidentally by the train when it was running at customary railroad speed, they must find for the defendants, unless they should believe that they were intentionally injured and destroyed by the defendants or their agents, &c., in their employment.”
Though proof of such fact would seem to be superfluous, yet the evidence was given to the jury, that it
The opinion of the supreme court of Pennsylvania, delivered in the case of the New York and Erie Railway Company vs. Skinnei’, reported in the December number, 1852, of the 'American Law Register, has been relied upon as authority in favor of the doctrines of law contended for by the defendants as applicable to this and all similar cases; but whilst it is admitted that that court, in the opinion cited, sustains to the utmost extent, the principle as embodied in the instruction last above copied from the record, yet this court is not disposed to sanction all the legal doctrines avowed in that opinion.
Wherefore, for the errors indicated, the judgment is reversed, and cause remanded for a new trial and further proceedings in conformity with this opinion.