Holden v. Rutland & Burlington Railroad , 30 Vt. 297 ( 1858 )

The opinion of the court was delivered by

Aldis, J.

This was an action on the case. The declaration contained three counts. There tras a general verdict upon all the counts for the plaintiff After verdict the defendants moved in arrest of judgment, on account of the insufficiency of the first count in the declaration. Upon this motion the county court arrested the judgment and set aside the verdict.

The declaration alleges that the defendants neglected to keep a fence on the line of their railroad adjoining the plaintiff’s land, as required by law, that for want of such fence the plaintiff’s horse escaped from the plaintiff’s pasture and “ went at large, and by means of going at large as aforesaid, the horse was greatly injured, damaged and destroyed, whereby,” etc.

I. It is this allegation in the declaration which the defendants insist is so defective as to require an arrest of the judgment.

It is urged that the defendants’ negligence, as complained of, is the not keeping in repair a fence which the defendants were bound to maintain, and that the injury alleged is not alleged as resulting from such negligence of the defendants, but from something else, viz: * the going at large of the horse.”

We think that the plaintiff, in stating the injury, might well state it in the natural order of events; viz: first, the negligence and consequent escape, secondly, the going at large, and then the injury therefrom resulting, and that such a statement in the natural and connected order in which the events happened is clearly proper and right; for the objection that the injury is alleged as the result of the going at large, and not as a consequence of a want of a fence, can only be sustained by a severance of the last averment from that which precedes it, and with which it is naturally connected. This, it seems to us, would be doing violence to the fair meaning of the language of the declaration, and to that natural order in the averments which the pleader should observe.

It is further urged that the declaration is uncertain, in not stating with greater detail how the going at large caused the injury to the horse. If this objection had been properly taken upon demurrer it might have been sustained; for the declaration ought to set out the facts, which connect the injury with the going at large, and show how the one resulted from the other. The going at large may have existed, and also the injury, and yet the one have had nothing to do with the other. The facts which connected the two, being matei'ial and traversible, ought to have been stated in the declaration. The defect is, that the declaration alleges generally, that by means of the going at large the horse got injured, when it should have set forth particularly in what manner and by what means tire going at large produced the injury.

Now this objection is precisely one of that class which is aided by verdict. Before trial by jury the defendants might have required the plaintiff to set forth particularly, instead of generally, these material facts, hut they saw fit to waive that right and proceed to trial upon such general allegation. After verdict the court will presume that those facts were proved to the jury which the general averment covered. , The general rule is, that the verdict, by legal and necessary intendment, supplies facts, the proof of which was necessary to satisfy the jury in finding the verdict, and which may be reasonably inferred to have been so supplied by their connection with those that arc alleged ; much more, as in this case, the verdict will be sustained, when the facts are, strictly speaking, not omitted, but only generally alleged.

We think, therefore, that the decision of the county court, in arresting the judgment was erroneous.

II. The defendants have also filed exceptions in the case as to that part of the charge relating to the connection between the want of fences and the injury to the horse. The language of the charge is “ if the jury were satisfied from fhe evidence there was a clear connection between the escape of the horse and the injury received, then the plaintiff should recover,” etc.

Assuming that the jury would have understood from the terms “ the escape of the horse” that the court meant “ the want of fences and the consequent escape of the horse,” still the language used, viz: “ a clear connection,” etc., was likely to mislead them. The jury might naturally be load to think, if the horse had not escaped he would not have got hurt; and hence that there was a clear connection between the escape and the injury, no matter how remotely or indirectly the want of fences contributed to the injury. This would be clearly wrong. The language used was not the legal and appropriate language to define the manner in which the damages to be recovered should result from the defendants’ breach of duty.

The breach of duty on the part of the defendants was their neglect to keep up a fence as required by law. The damages for which they were liable must have been the natural and direct consequence of such neglect. In the application of the rule to this case, there certainly was difficulty, from the peculiarity of its facts and the generality in the averments of the declaration. The substance of the plaintiff’s claim was, that the horse, from the want of the fence, escaped and strayed into a stony and rocky pasture where a horse would be likely, on account of the stones and rocks, to get injured, and did thereby get injured. It is obvious, that whether this was a natural and direct or a remote and accidental consequence, would be a question of fact to be determined by the jury upon the circumstances of the case; such as the character of the pasture, and whether it was one in which a young horse would be likely to get hurt on account of the rocks and stones in it; and ■whether, on account of its proximity to the plaintiff’s field, a horse escaping therefrom, would be likely to get into it. These, and perhaps other similar considerations would determine the point.

If the defendants, in the exercise of such care and judgment as a prudent owner of the horse would have used, ought to have foreseen, that the horse escaping might reasonably be expected to get into such pasture and so get injured, then they would be liable ; but if the probability of an injury from such causes was so remote as not to be reasonably expected by any one in the exercise of such prudence, then he would not be liable. In the first case, it would be the direct and immediate consequence of the neglect of the defendants; in the last, it would be properly attributable to chance and accident.

These limitations of the defendants’ liability to damages, do not seem to have been properly stated in the charge of the court. The jury may well have found a clear connection between the escape and the injury, and yet one so remote as to furnish no legal ground of damage.

III. The defendants also object to that part of the charge relating to the liability of the defendants for the injury to the cows described in the third count of the declaration.

From the statement of the facts in the bill of exceptions, it is plain that if the cows were rightfully on the gore of land, then the defendants were unquestionably liable for not having a fence to prevent their' escape. Whether they were rightfully there would depend first, on the agreement of the parties as to the occupancy of the land. If the defendants were to have the exclusive possession, they were not rightfully there. If, on the other hand, the right to pasture his cows there was reserved to the plaintiff, they were rightfully there. It does not appear that this point was settled by the parties, either by any written or express parol agreement. In the absence of an express agreement on this subject, it was the duty of the court to submit all the facts in relation to this point to the decision of the jury, and it was for them to consider the position of the land, the agreement about its use, so far as any was made, the actual user, the conduct of the parties in relation to it, and all the other facts tending to show what was the real understanding of the pai-ties on this point; and to decide whether the parties did agree that the plaintiff was or was not to have the right to turn his cows upon this gore of land. This the court below did not do; but assumed as matter of law, and so charged the jury, that the defendants had no exclusive occupancy of the land, and, as it would seem by natural inference, though not by express instructions, that the plaintiff had the right to have his cows upon the the land in question.

Secondly, the jury might well ha've understood from the charge that if the cows escaped from Horton’s land on to this gore, and so on to the railroad track and got injured, that the defendants were liable in any event, even though they escaped from Horton’s land through a defect in the fence which Horton was bound to repair. From the facts as stated, the cows were rightfully on Horton’s land. If the defendants were in the exclusive occupancy of the gore of land, then, in the absence of any agreement, the plaintiff would not be bound to fence between the gore and Horton’s land; but it would belong either to Horton or the defendants, or both, to maintain that fence. In that case, if the cows escaped from Horton’s land through a defect in the fence between it and the gore, which the defendants were bound to maintain, .then they would be liable; otherwise not. The court, therefore, on this point should have submitted the question to the jury, whether the cows did escape from Horton’s land on to the gore through a defect in the fence which the railroad company ought to repair; necessarily involving the inquiry as to who was bound to maintain that fence.

The court also charged that the defendants were bound to - build their fences between their line and the adjoining lands, when they entered upon their lands to build their road. The charter of the company requires them “ to build and maintain a fence on each side of their railroad;” but it does not state at what time such fence shall be built. This court, in the case of Clark v. The Vermont and Canada Railroad Company, reported in 28 Vermont, has decided that it must be built “ at least as soon as the company shall commence running their road.” Whether they, as matter of law, are required by law to build it earlier, was a question not necessary to the decision of that case, and may perhaps still be considered as an open question. The court say in that case, that the railroad companies in constructing their roads “ must. exercise their rights with a prudent regard to the rights of others, and if lacking in this duty are chargeable with negligence, and must answer for the consequences. What would constitute a prudent regard for the rights of others in one case, might not in another;” and that this question of what constitutes such prudent regard, is a question to be submitted to the jury.

It must not be understood however, from the language of that case, that the rights of the landholder, or the obligations of the railroad company are to be submitted to the jury. These rights and obligations are determined by law. The railroad company, after they have opened the fields of an adjoining landholder for work, and have begun constructing their road, are bound to use all reasonable and prudent means to restrain the cattle of the land owner from straying from his land on to the railroad track, and to prevent the irruption of other cattle into his lands from their line of road. These are duties clearly devolving upon the railroad company. The landholder adjoining the line upon which the railroad company are constructing their road, is not bound to fence his lands along the line of the railroad. If the company do not fence along such line before they begin to build their road, they must, at least while building it, use all reasonable and prudent means to enable the landholder to enjoy the use of his own land in the ordinary modes of husbandry, and to prevent the irruption of the cattle of others upon his premises. In many cases doubtless this rule would require the erection of a fence, in others not. The application of the rule must depend upon the facts of each particular case, and must be left to the jury.

As this case must be sent back for trial to the county court upon the other points before decided, we do not deem it necessary to decide the point whether the railroad company was bound, as matter of law, to build their fence before or as soon as they began constructing their road. We deem it proper to limit the decision of this case to the principles established in the 28th Vermont, as here recognized and explained.

Judgment of the county court arresting judgment reyersed, and new trial granted on the defendant’s exceptions.