8 Nev. 110 | Nev. | 1872
By the Court,
Tbe question as to tbe extent of tbe liability of railroad companies for injuries to domestic animals has frequently
Tbe leading principle pervading all tbe cases is that tbe liability of such companies is founded only upon negligence or omission of duty, and tbis principle' is fortified by tbe cases of analagous character from tbe earliest history of tbe law. Thus it bas always been held that if in tbe prosecution of a lawful act, an accident, which is purely so, arises, no action can be maintained for an injury resulting therefrom. Davis v. Saunders, 2 Chitty Rep. 639; Goodman v. Taylors, 5 Car. & P. 410. And in railroad cases, upon tbe same principle, it is always held necessary to show negligence to sustain an action for damages. Gerres v. Portsmouth and Roanoke R. R. Co., 2 Iredell 324; Lane v. Crombie, 12 Pick. 177; Harlow v. Humison, 6 Cow. 189; Vandegrift v. Redicker, 2 Zabriskie, 185; Louisville and Frankfort R. R. Company v. Ballard, 2 Met. (Ky.) 177; Chicago and Miss. R. R. v. Patchin, 16 Ill. 198; 18 Ill. 260; 22 Barb. 574. Upon what other principle of law can a person who occasions damage while in tbe pursuit of a lawful business upon bis own premises be held liable ? Surely an individual so situated, who exercises proper caution and is not chargeable with negligence, can not be held for an accidental injury and damage resulting therefrom. There being no negligence in any sense of tbe word on tbe part of tbe person causing tbe injury, it would be a case of damage without a wrong, and consequently affording no cause of action. In all such cases, therefore, tbe negligence or want of that due care and caution which tbe situation demands is tbe very gravamen of tbe action, without which none can be maintained.
In tbis case it does not appear to be questioned but tbe defendant’s business is entirely lawful, nor that it bas tbe right to tbe possession of tbe land taken for tbe purposes of its road; and that possession, by all tbe authorities, is tbe right to its exclusive enjoyment, and to exclude all persons and beasts therefrom at any and all times. Jackson v. The Rutland and Burlington R. R. 25 Ver. 150. It follows, then,
But it is not the law that the mere killing of a domestic animal by a railroad train is evidence of negligence. This question has frequently been before the courts and invariably ruled against the plaintiff, except where the general rule of law is abrogated by positive statute. The fact of killing an animal of value by the company’s engines, says Redfield, is not prima facie evidence of negligence. 1 Redfield on Railways, 465. And it is so ruled in the following cases: Scott v. The Wilmington and Raleigh R. R. Co. 4 Jones, (Law) 432; Indianapolis and Cincin. R. R. v. Means, 14 Ind. 30; Ill. Cent. R. R. v. Reedy, 17 Ill. 580; Chicago and Miss. R. R. v. Patchin, 16 Ill. 198. See also Pierce’s American Railway Law, 357.
Was it incumbent ®n the defendant to fence its road? At common law the proprietor of land was not required to fence; but every man was bound to keep his cattle on his own premises, and he might do this in any manner he chose. And this rule applies equally to railroads as to individuals. Does the statute then impose this obligation ? It does not, as we understand it, require railroad companies to fence their road when it runs through public land. Its language is rather vague, but no sensible construction can be placed upon it except that it must fence its road where it runs through or alongside of land owned by individuals. That portion of the section bearing upon this question reads
It is quite evident that this was not what was intended to be required, for it would simply result in an absurdity. What then was the intention of the legislature ? Doubtless simply to require the companies to fence their road where it may run through or alongside of the land of private individuals; that is, on either or both sides as occasion may demand. This view is strengthened by the fact that the statute only makes the company liable for the injury to, or killing of stock ‘' when they stray upon their line of road, where it passes through or alongside of the property of the owners of such cattle. ” So, too, it had frequently been held that fencing, even when required by statute, is only for the protection of adjoining .owners, and that no other person
Under this statute, undoubtedly if cattle stray upon the railroad directly from the owner’s land, by reason of the failure on the part of the company to fence the road at that point, it would be held liable by the simple showing of the facts that the company had neglected to fence the road along the land of the person owning the animals, that they strayed directly from his land on the road and were there killed, without showing any further negligence; for the failure to build the fence where required together with the other facts above mentioned would bring the case directly within the statute and without further showing create a cause of action. But where the case is not brought within the statute,- negligence is the only ground of action, as we have already shown.
This case is not brought within the statute; for it is not shown that the company failed to fence at a point where it should have done so, nor that the animal killed strayed from land belonging to its owner on to the railroad, but that it came from public land unoccupied and unclaimed upon the
Therefore the non-suit was properly granted.
Judgment affirmed.