Quimby v. Boston & Maine Railroad

71 Vt. 301 | Vt. | 1899

Thompson, J.

During the night of July 5, 1897, without the knowledge of the plaintiffs or their servants, their mare escaped from their pasture, on the “Meserve farm” so called, in St. Johnsbury, at some place not known, into an adjoining mowing field belonging to this farm, and passed from it through an open driveway into the public highway, and after travelling about at large on the highway for about half a mile, passed over a cattle guard in the defendant’s railroad where it crossed the highway at grade, and went along the railroad track for some distance and was struck by an engine of the defendant, and so injured as to be worthless and for that reason was killed. The defendant was without fault in the management of its engine at the time the mare was injured. This highway crossing was not on the “Meserve farm,” and the cattle guard was not sufficient to prevent animals from getting upon the railroad. The pasture from which the mare escaped was fenced.

The defendant contends that the mare was not lawfully upon the highway; that it is not bound to maintain cattle guards at highway crossings of its railroads sufficient to prevent cattle and animals, not lawfully upon the highway, from getting upon its railroad track, and that consequently the judgment below in its favor was correct. In support of this contention it relies upon several decisions of this court in respect to the duty of railroads to build and maintain fences along the line of their roads.

On the other hand, the plaintiffs insist that under the holding of this court in Harwood v. Bennington & Rutland R. R. Co., 67 Vt., 664, they are entitled to recover for the injury to the mare. In that case the facts so far as can be gathered from the opinion were these: While the horse of the plaintiff’s intestate was being led along the highway by one Houghton, in whose care it had been placed, it escaped and ran over a defective cattle guard to the defendant’s railroad track, and was there killed. In defence, evidence was offered tending to show that the horse escaped and went at large through the negligence of Houghton, and that this negligence contributed to the accident. This evidence was excluded, and the decision of the county court was sustained by this court. Its decision was put upon the ground that “the statute having made it the duty of the defendant to maintain a cattle guard at the point where the horse escaped from the highway and went upon its track sufficient to prevent horses from getting upon its track, and declared for its neglect to do so it should be held liable for all damages done by its agents and engines, if occasioned by such neglect, the question of whether Houghton was negligent in leading the horse along the highway in the manner he did was immaterial.” If the horse escaped through the negligence of Houghton and thus went at large upon the highway, from the moment of its escape, it was unlawfully upon the highway. Hence the logical result of this decision is that railroads are bound under the provisions of Y. S. 3871 and 3877, to construct and maintain cattle guards at all road crossings sufficient to prevent cattle and animals from getting on the railroad, and that they are liable for damages done by their agents or engines to cattle, horses or other animals, if occasioned by the want of such cattle guards, without regard to whether such cattle, horses or other animals are lawfully on such road crossing or not. There is no occasion to recede from this decision. It conforms to the express and unambiguous language of the statute. This statute was intended to protect travellers riding in trains on railroads, from accidents that might occur by reason of animals being at large upon the railroad track for want of sufficient cattle guards at road and farm crossings, as well as to compensate owners for cattle injured for want thereof. So far as this case contravenes the cases previously decided by this court relating to this subject, it overrules them.

This view of the case renders it unnecessary to decide whether the mare of the plaintiffs was lawfully or unlawfully upon the highway.

Judgment reversed, and judgment for the plaintiffs to recover two hundred dollars damages and their costs.