Smith v. Eastern Railroad , 35 N.H. 356 ( 1857 )

Fowler; J.

By the act of July 13, 1850, [Laws of 1850, chap. 953, secs. 5 and 6; Comp. Stat. 350,] every railroad corporation in this State is required to make and maintain all necessary cattle-guards, cattle-passes and farm-crossings, and to keep a sufficient and lawful fence on both sides of the road, for the convenience and safety of the land-owners along the line thereof.

Under this statute it was holden, in White v. Concord Railroad, 10 Foster 207, that where, by agreement between the corporation and a land-owner, a cattle-pass had been constructed at grade across the railroad, from one portion of a pasture to the other, the land-owner was at liberty to let his cattle wander through this pass, across the track of the railroad, at pleasure; and the fact that cattle, while thus crossing the track of the railroad, were killed by the engine and cars of the corporation, was primd facie evidence of negligence on the part of the corporation ; that the cattle being rightfully on the track, and the damage proved, the corporation were answerable for negligence, unless they showed a want of blame on their part; that the burden of proof was upon the corporation to lay before the jury such circumstances as should exonerate them from responsibility for the injury. The same doctrine was recognized and sustained in Horn v. Atlantic & St. Lawrence Railroad, 35 N. H. 169.

A more stringent rule would clearly apply to the killing of cattle or horses that come upon the track through the neglect of the corporation in not maintaining a sufficient and lawful fence on each side of the road; and it has been decided elsewhere, that no degree of care on the part of the corporation could discharge them from liability under such circumstances. If the damage result primarily and consequentially from the neglect of the corporation to perform a duty which the law imposes upon them, we know of no principle on which they should he exempted from the consequences of their neglect of duty, even though inevitable accident were shown to have benn the proximate and final cause of injury on their part. Marsh v. New-York & Erie Railroad Company, 14 Barber 364; Hurd v. Rutland & Burlington Railroad Company, 25 Vt. 116; Williams v. New-Albany Railroad, 5 Indiana 111.

That tbe destruction of cattle while upon the track, without the fault of their owner, is competent and primd facie evidence of negligence on the part of the railroad corporation running the train causing the mischief, has been distinctly recognized in other jurisdictions. Ellis v. Railroad Company, 2 Iredell 138; Suydam v. Moore, 8 Barber’s Sup. Ct. 358; Daunee v. South-Carolina Railroad Company, 4 Richardson 329.

There was, therefore, no error of which the defendants can complain, in the instructions of the court below upon the facts of the case; and it is upon the facts, and not upon the allegations of the declaration, that the charge of the court proceeds: that if the jury found the plaintiff’s horse to have been upon the track in consequence of the defendants’ neglect to maintain a suitable fence, and to have been there killed by them, the defendants were liable, without proof of any negligence on their part in run-rung the train. When the plaintiff showed that his horse was upon the track without his fault, and that while thus there it was run over and killed by the defendants’ train, competent primd facie evidence from which, unexplained, the jury were authorized and required to find negligence, had been offered in support of the allegations of the writ. When he showed further, that the horse was upon the track through the negligence of the defendants in not fencing their road, and was there killed by their train in consequence of being thus upon the track, he was entitled to recover of the defendants the damages sustained by the loss of the horse, without regard to the question of negligence, unskillfulness, misconduct, or inevitable accident in the killing. Williams v. New-Albany Railroad, 5 Indiana 111, and other authorities before cited.

Nor is there any good foundation for the motion in arrest of judgment. If nothing were before us but the declaration and verdict, it is manifest that the jury must have found one of Wo things, and which is perfectly immaterial, so far as concerns the liability of the defendants. They must have found, either that the plaintiff’s horse, being wrongfully on the track, had been negligently and carelessly killed by the defendants’ train, or that being there, rightfully or through the fault of the defendants in not maintaining their fence, it had been killed by their train. Any imperfection, if there was one, in the plaintiff’s statement of his cause of action, was therefore cured by the verdict, at common law. The rule on this subject is, that where there is any defect, imperfection or omission in any pleading; whether in substance or in form, which would have been a fatal objection on demurrer, yet, if the facts stated be such as necessarily to imply, and the issue joined be such as necessarily to require on the trial proof of the facts, so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection or omission is curéd by the verdict, at common law. Stennell v. Hogg, 1 Saunders 228, n. 1, and numerous authorities there collected; Sewall's Falls Bridge v. Fisk & Norcross, 3 Foster 180, 181.

If there were any defect in the plaintiff’s declaration, it was clearly one of title defectively stated, and not one of defective title. He alleges his ownership of the horse; that it was upon the defendants’ track, and was there negligently and carelessly killed by the defendants’ train, but omits to state in what manner the horse came upon the track. It is necessarily implied that the horse came upon the track wrongfully, rightfully, or through the neglect of the defendants themselves, and the jury could not have found the defendants guilty without finding one or the other; so that the alleged defect was necessarily supplied and cured by the verdict. The defendants were perhaps entitled, upon the coming in of the evidence, if they had insisted upon their objection, to have had this alleged defect amended before trial, by requiring the plaintiff to set forth under what circumstances the horse came upon the track, so that they might have known whether they were to defend against a charge of actual or presumptive negligence, or whether the question of negligence, misconduct, unskillfulness or inevitable accident, in the management of the train, could not arise.

In Walpole v. Marlow, 2 N. H. 886, the matter is thus concisely but correctly stated by Chief Justice Richardson: “ The true distinction between a defective title and a title defectively stated, is this: when any particular fact is essential to the validity of the plaintiff’s title, if such fact is neither expressly stated in the declaration nor necessarily implied from the facts which are stated, the title must be considered as defective, and judgment must be arrested; but if such fact, although not expressly stated, be necessarily implied from what is stated, the title must be considered only as defectively stated, and the defect is cured by a verdict.”

In that case, the declaration against a town for the support of a pauper omitted to allege that the pauper had no relations of sufficient ability to support him; and a verdict having been rendered for the plaintiff, the defendant moved in arrest of judgment for this defect. It had been alleged that the defendant town was liable for the support of the pauper, and the court held that the inability of relations was necessarily implied from this allegation; so that after verdict the defect was cured, as the jury could not properly have found the defendant town chargeable, unless the inability of relatives had been shown.

So in Elliot v. Heath, 6 N. H. 428, it was holden that the want of an averment in a writ of seizin that the demandant was seized of the demanded premises within twenty years, was cured by a verdict that he was disseized by the tenant within that period — the declaration having contained an allegation of such disseizin. Ward v. Bartholomew, 6 Pick. 413.

In Worcester v. Pro. of Canal Bridge, 16 Pick. 549, the court say: “ The plaintiff’s title is defectively and imperfectly stated; but the circumstances and facts omitted to be alleged to show the defendants’ liability, must be presumed to have been proved upon trial. The court must presume every thing to have been proved, without proof of which the jury could not have truly found upon the evidence as they have found.”

In Read v. Chelmsford, 16 Pick. 128, it was held that a declaration against a town for injuries occasioned by a defect in a highway, was sufficient after verdict, although it did not state that the town was liable to maintain and repair the highway where the accident happened, at the time of the accident, and although there was no direct averment that the defective part of the road was in the town, or that the defect and want of necessary repairs were against the form of the statute. See, also, Hall v. Marshall, Croke Charles 497; Frederick v. Lookup, 4 Burr. 2018; Parker v. Langley, 10 Modern 209.

Numerous other cases might be cited, in which courts have gone very far towards remedying defects in declarations after verdict; but those already referred to would be abundantly sufficient to justify us in holding the declaration in the present case good after verdict, if nothing but the declaration, plea and verdict were before us. But the case shows what the evidence was,_ and what instructions were given to the jury in relation thereto, so that it appears affirmatively that the fact, for not setting forth which the declaration is alleged to have been defective, must have been actually passed upon by the jury. If, then, the authorities would require us to sustain the verdict, upon general principles of presumption, much more are we not at liberty to set it aside, when it is conclusively shown to have been properly rendered upon an actual finding of the very matter ordinarily only presumed to have been found.

We have thus far proceeded on the assumption that there might have been some imperfection or defect in the declaration under consideration, that would have been fatal on demurrer. A careful examination of the question, however, satisfies us that no such defect existed upon its face. It charged the defendants with carelessly and negligently killing the plaintiff’s horse upon their track by means of their train. Upon principle and weight of authority, we think it quite clear that a good cause of action was thus set forth. It was not necessary for the plaintiff to set forth how the horse came upon the track, or that it was there without his fault. If it were there wrongfully, the defendants were responsible, if they killed it, as expressly charged, through carelessness and negligence. If it were there rightfully, the fact of its being killed was competent primá fade evidence of the negligence of the defendants in managing their train. If it were there through the fault of the defendants, they were responsible for the damages, under whatever circumstances they killed it. The declaration was therefore sufficient of itself, although it might have been more perfect. If any defect existed, it was latent. It was only when the evidence showed that the horse came upon the track through the negligence of the defendants in not maintaining their fence, so that it became unnecessary to prove the negligence expressly charged in the management of their train, that any objection could have been taken to the declaration. Had the defendants then insisted upon a variance between the declaration and the proof, as before suggested, the plaintiff might have been obliged to amend, or have been subjected to a nonsuit. But it is not now necessary to decide the question, or further discuss the subject. Had the objection been taken and insisted upon, the plaintiff, upon the facts in the case, would undoubtedly have proposed and been permitted to amend, probably without terms, by inserting an allegation that the horse was upon the track through the fault of the defendants in not maintaining their fence, so that no particular inconvenience to the plaintiff or advantage to the defendants could have resulted therefrom. As it was not insisted upon, as the declaration was sufficient of itself, and clearly good after verdict, notwithstanding the variance in the proof, there must be

Judgment on the verdict.