86 Va. 19 | Va. | 1889
delivered the ojmiion of the court.
On the night of December 25th, 1887, the mules -and horse in question were unloaded at the depot of the plaintiff in error, known as the “Virginia Midland railroad depot,” along with others (forty-two in all) on the north side of the Dan river, the city of Danville and the depot of the Richmond & Danville railroad being'on the south side of the said river. There were no cattle-pens at this depot, but the stock was all safely unloaded without accident. The defendants in error were not able, however, or did not succeed in getting a bridle on one of the two horses brought with the mules. The drove of forty mules, some of them unbroken, and the one loose horse, were started towards the stable in Danville, following a horse upon which a servant rode and led the horse which had been bridled. The drove passed safely over the bridge into Danville, the scene, being lighted with electric lights, and on the south side of the river the bridge abutted on two streets, Main street and Bridge street. The servant and the-lead horse passed on up Main street, and some of the mules followed after, but the loose horse and some of the mules started down Bridge street. An assistant of the defendants in error, well mounted and an expert horseman, dashed at full speed down this last named street and attempted to head off the loose horse, now running wildly. These passed into Craghead
Upon the trial in the hustings court, the court gave certain instructions, and refused others asked for by the plaintiffs, and gave others not asked for by either party, and the defendant excepted. And the defendant asked for seven instructions, which the court gave, striking out the ,word “gross” in the third and fifth instructions before the word “ negligence,” so as to instruct the jury that the plaintiffs, under the stated circumstances, could not recover unless the defendant had been guilty of negligence, refusing to excuse except for gross negligence, and holding it responsible for negligence simply; and the defendant again excepted. The jury rendered a verdict for the plaintiffs for the damages asked for, and the defendant moved the court to set aside the verdict and grant it a new trial, which motion the court overruled, and the defendant again excepted; and, judgment being rendered in accordance with the verdict, the defendant applied for a writ of error to this court, which was awarded.
At the trial the court gave the following instruction in lieu of the sixth instruction asked for by the plaintiffs: “ The jury are instructed that if they believe from the evidence that the defendant company obstructed Craghead street by the placing of its engines, coaches or cars across or upon said street at the point it crossed the railway, and that the placing of the same at the point of crossing was not for the purpose of loading or unloading passengers, and that such obstruction was the cause of the horse and mules in question being turned on and upon the road-bed of the defendant, whereby the injury complained of was sustained, they must find for the plaintiffs, unless they also believe that the plaintiffs, by the exercise of proper and reasonable care and diligence, could have prevented the escape of said animals from their control, or could have stopped them, or in some way have prevented them from reaching said point
It may not be out of place, however, to observe that we have not discovered any other error in the instructions as given by the court, and the omission of the word “ gross,” as above stated, before the word “ negligence,” so as to hold the railroad liable for ordinary negligence towards stock on its track without the negligence or default of the owner, was not erroneous. Trout v. Railroad Co., 23 Gratt., 619, and cases cited; Railroad, Co. v. Griffin, 31 Ill., 303; Battle v. Railroad Co., 66 N. C., 343; Sneesby v. Railroad Co., L. R. 9 Q. B., 263, on appeal, 1 Q. B. Div., 42; Needham v. Railroad Co., 37 Cal., 410; Railroad Co. v. McBrown, 46 Ind., 229; 1 Thomp., Reg., 508, sec. 11, and other cited cases. Bor the reasons stated, the judgment complained of must he reversed and annulled, and the cause remanded for a new trial to be had therein in the said hustings court of Danville city.
Judgment reversed.