40 W. Va. 331 | W. Va. | 1895
In an action brought by Maynard against the Norfolk & Western Railroad Company before a justice and carried by a writ of certiorari to1 the Circuit Court of Logan county, Maynard recovered one hundred and forty dollars damages for killing his horse — the recovery being, not by verdict, but on a finding of the court in lieu of a jury — and the company-sued forth this writ of error.
It is settled that to charge a railroad company for killing stock straying upon its track, the owner of the stock must prove negligence on the part of the company. There are so many' cases heretofore decided by this Court holding 'this principle and discussing this subject that it would be a waste of time to further discuss it here. Blaine v. Railroad Co., 9 W. Va. 252; Baylor v. Railroad Co., Id. 270; Hawker v. Railroad Co., 15 W. Va. 628; Washington v. Railroad Co., 17 W. Va. 190; Layne v. Railroad Co., 35 W. Va. 438 (14 S. E. Rep. 123); Hoge v. Railroad Co., 35 W. Va. 562 (14 S. E. Rep. 152.
Johnson v. Railroad Co., 25 W. Va. 570, pointedly holds, as those cases in effect do, that the burden to show negligence is upon the plaintiff.
It is useless! here to recite the evidence, as it would be no precedent for future practice, and it is necessary only to state legal principles arising from the facts as they appear to us. We think there is a failure to show negligence on
There is another question of law proper to be decided. Touchingit I make the following- extract from brief of counsel which I regard a fair statement of facts pertinent and necessary for the understanding of the question, and as a presentation of the law of that question: “In order that the second question may be clearly understood, it will be necessary to call attention to the location of the place where the accident occurred. The plaintiff lived a short distance east of the town of Williamson. To the east of him, and following the railroad track, the witness James Gary lived. And still further eastward, and entirely disconnected from the plaintiff’s place, is what is known as the Widow Lawson Farm.’ Through the latter farm the railroad company condemned its right of way, and the place was cleared and fenced at the time of condemnation; and it became the duty of the company, in consequence of section fourteen of chapter forty two of the Code, to fence both sides of its track, and put in suitable cattle guards through the land so condemned, and it did construct the required fences, and place a cattle guard at the eastern line of the Lawson place, but omitted to put one at the western line thereof. This made an inclosure on three sides, with an opening at the west, into which, presumably, the plaintiff’s horse strayed from .the commons below; and the question is, does the omission on the part of the railroad company to put in Mrs. Lawson’s cattle guard render it liable for the plaintiff’s horse, killed on a part of its right of way from which such a guard would have excluded it? It will be observed that leaving the guard out simply extended and increased the size of the common through which the railroad ran, and upon which the horse was already grazing. The absence of the guard did not admit the animal to the railroad track. He was already grazing upon an inclosed portion of it, and the omission of ■the guard simply enabled him to change his position on the track, and make choice of a place in which to die. For whose benefit is section fourteen of chapter forty two intended? That portion of the section involved reads as follows:
In Hoge v. Railroad Co., 35 W. Va. 566 (14 S. E. Rep. 152] Judge Holt expressed the opinion that cattle guards art for the benefit of the landowner on whose lands they are. So I do not regard the omission to put this cattle guard in as alone sustaining the action.
For these reasons we reverse the judgment and finding, and, rendering such judgment as the Circuit Court ought to have rendered, we enter judgment for defendant.