Ward v. . R. R.

MERRIMON, C. J., and DAVIS, J., dissenting. The issues submitted, with the responses by the jury, were as follows:

"1. Did defendant, by its negligence in moving its cars and engines, kill the horse of the plaintiff? Yes.

"2. If yes, what damage has plaintiff sustained thereby? Eighty-eight dollars."

There was testimony offered on the part of the plaintiff tending to show that, within six months before the beginning of this action, the defendant had killed the horse of the plaintiff by running against him in the day-time with a freight train running on defendant's (359) road, and also testimony as to the value of the horse. Defendant introduced the engineer, fireman and others who were on the train at the time of the killing of the horse. They testified that the train was a long and heavy freight train running rapidly and with great momentum; that the engineer in charge of the train was on the vigilant lookout for stock in front of the train, but that the weeds and bushes had grown up close to the track of defendant's road at that point within two feet of the track as high as plaintiff's horse; that the horse was concealed from the engineer by these weeds and bushes until the train was close upon him, when he suddenly emerged from the weeds and bushes on to the track; that the engineer, immediately on seeing the horse, he being on the lookout to the front, blew down-brakes, blew the cattle alarm and reversed his engine, that the brakes were applied, but that the horse was so close to the train that all these efforts were unavailing, and the train ran over the horse and killed him.

Defendant asked his Honor to instruct the jury: "If the jury believed that the engineer, as soon as he could, by looking out and being on the watch, discovered the horse and then used all the efforts at his command to stop the train, and could not do so in time to keep from striking the horse, then the defendant was not guilty of negligence, and plaintiff could not recover."

His Honor told the jury this would be true unless the defendant had negligently allowed bushes and weeds to grow on its right of way so close to its track that the horse was concealed thereby until it was too late to stop the train and prevent his destruction.

Defendant further asked his Honor to instruct that, "If the jury should believe that the engineer was prevented from seeing the horse, or would have been prevented from seeing the horse had he been on the careful lookout, by the weeds and bushes growing within two feet of the ends of the cross-ties on the side of the road on which the (360) horse was killed, and the said bushes were three or four feet high, then the prima facie case in favor of the plaintiff would be rebutted, and jury should find first issue in favor of defendant."

The substance of the instruction given is embodied in the opinion of the Court.

There was a verdict for plaintiff. Defendant moved for a new trial on account of the refusal of the court to give the instructions asked for, and for alleged error in the instructions given. It is settled law in this State that if an engineer in charge of an engine sees, or can, by keeping a careful outlook, see a cow or horse upon the track in his front, it is his duty to stop the train, if he can do so without peril to the passengers and property under his charge, by the use of all the appliances for checking the speed at his command. Carlton v. R.R., 104 N.C. 365; Wilson v. R. R., 90 N.C. 69; Snowden v. R. R., 95 N.C. 93;Bullock v. R. R., 105 N.C. 180; Deans v. R. R., 107 N.C. 686.

If, by the exercise of ordinary care, the engineer can discover that an animal is greatly frightened and is running apparently excitedly and wildly beside or near the track, or continues on and sometimes off it, it is the duty of the engineer to "slacken the speed, keep the engine under his control," and, if necessary, "stop it," until the animal is out of danger.Wilson v. R. R., supra.

"When the cattle are quietly grazing, resting or moving near the track — not on it — manifesting no disposition to go on it, the speed of the train need not be checked." Wilson v. R. R., supra.

We have thus stated the general rules laid down by this Court (361) in reference to the negligence in injuring livestock, in order the more intelligently to discuss the instruction given by the Court in case at bar, that even though the engineer could not, by keeping the most vigilant outlook, discover that the plaintiff's horse was in the vicinity of the track in time to stop the engine, yet "it was the duty of thedefendant to keep its right of way near its track reasonably clear of weedsand bushes which might conceal stock approaching its road until it wastoo late to stop a train and prevent their destruction," and that "if they (the jury) believed that the horse was killed because he was so concealed by weeds and bushes, which the defendant had negligently permitted togrow up in close proximity to the track," that the engineer could not see in time to avert the injury, the defendant's negligence was the proximate cause of it.

We take notice of the fact that, whatever may be the privilege of railroad companies to exercise dominion over their whole right of way, the universal custom has been to allow the abutting owner, whose land has been taken for the use of the public, to cultivate up to the side ditches that are kept open for the purpose of proper drainage by the company. While we concede that it is the duty of the corporation in constructing its road to cut down the large trees that might fall on or blow upon the track, we would be loath to give our sanction to any ruling that would make it incumbent upon them, in order to protect themselves from liability, to take actual possession of any portion of the right of way not needed for corporate purposes proper, namely, to remove from it corn, grain, high grass, weeds or bushes, that may spring up immediately outside of the ditches and grow upon cultivated land high enough to conceal a horse or cow from the view of an engineer who is approaching with a moving train.

It is important that every principle of law to which the conduct of the citizen is to be made to conform, should mark out the line (362) of his duty with reasonable certainty. It is essential, in order to insure the transportation of passengers and freight with the dispatch and promptness that will meet the wants of a commercial people, that the managers of railroads should have a definite idea of the duties and liabilities of the companies, and should be able, by using proper precaution, to provide against it without subjecting the public to serious inconvenience or delay. If, therefore, the judge had told the jury that it was negligence to suffer weeds and bushes to grow up in or upon the banks of the ditches of which the companies assume actual control and dominion, to a sufficient height to obstruct the view of the persons or animals from an approaching engine, he would have fixed a known and well-defined boundary line up to which the corporate authorities would be required to remove such obstructions, and would, at the same time, have held them bound to discharge a duty which is but the exercise of ordinary diligence on their part. To burden these corporations with the further duty of removing such obstructions beyond the territory of which they assume actual control for corporate purposes, is not only to license but compel them, for their own security, to cut down corn or grain, as well as weeds, when it springs up so high as to hide cattle from view, and thus enable the engineer to see whether they are grazing quietly or moving about frantically as a train draws near to them. The court below laid down the indefinite rule, that it was negligence to allow weeds or bushes to grow "near to," or "in close proximity" to the track; he left the precise distance to which the duty extended so vague and uncertain that railroad companies cannot provide against liability, however watchful their servants may be, except by assuming actual control and keeping clear of corn, grain, grass, weeds and bushes the whole right of way, especially where there are curves so sharp that the line of vision (363) of the engineer in looking to his front would cross the right of way at or near its outer boundary line. "Near," in common parlance, is understood, and by lexicographers is defined, to mean either "close" or "at no great distance"; while "in close proximity," or "in the immediate vicinity," are equivalent terms, and either of the expressions might have been understood by the jury as a declaration that it was negligence to leave weeds or bushes that would hide cattle from view anywhere on the right of way. One hundred feet from the center of the railroad (the ordinary limit of the right of way) would be considered by men of intelligence as at no great distance, from, or in the immediate vicinity of, a track, and the instruction was, therefore, misleading; unless we intend to enjoin upon railroad companies the duty of ousting the owners of the abutting land and seeing that it is kept clear of cornstalks or weeds, which under good culture would, after the crops are gathered, hide from view cattle on the right of way in the immediate vicinity of the track. In order to provide against liability under the rule laid down by his Honor, railroad companies must either assume such control of the right of way, or the fast trains by which the companies have contracted for the expeditious transportation of the mails, persons and property must stop and "beat the bushes" at every curve in the line where the soil is rich, in order to ascertain whether a cow or horse can be made to emerge from them before proceeding on their important mission.

Where bushes are allowed to grow in or inside of the ditches along the portion of the right of way of which the corporation assumes actual control, so as to obstruct the view of an engineer on an approaching train, a greater degree of care does devolve upon the company, just as we have said in Hinkle v. R. R., (decided at this term), that where a company suffers cars or other obstructions to be placed on a sidetrack so as to shut off the view of a moving train from a traveler driving (364) towards a crossing on the line, it is negligence in an engineer to fail to give notice of his approach. 19 Am. Eng. R. Cases, 312, notes and authorities cited; R. R. v. Moody, 45 Am. Eng. R. C., 254, and notes; 527, et seq.,

We think that the court below erred in fixing upon corporations the duty of removing obstructions, such as weeds or cornstalks, that are incident to the ordinary course of husbandry outside of the portions of the right of way, including sidetracks under the actual control of the companies. It is, of course, the duty of the company to construct the road properly and in such a manner as will not expose travelers to needless dangers. It is incumbent on them, as we have said, to remove all trees from the right of way, and also any structure that is liable to fall upon passing trains or upon the track so as to obstruct it. But in our case, the question is as to their duty in reference to the right of way outside of the track and ditches, and after the completion of the road in reference to weeds and bushes that may spring up while the land is being cultivated with ordinary care.

There was error, for which the defendant is entitled to a new trial.