#### DEMSEY R. GARRIS *vs.*THE PORTSMOUTH AND ROANOKE RAIL ROAD COMPANY.

Ifj in the prosecution of a lawful employment, a pure accident occurs, -^-no action can be supported for an injury arising therefrom.

It is otherwise where any blame or carelessness is attributable.

"Where the engine, running on the road of the Portsmouth and Roanoke Rail Road Company, killed a steer under such circumstances as shewed that the killing was accidental, *held*that the company were not responsible for the loss.

The statute (Rev. Slat. c. 17, s. 7,) giving jurisdiction to a rpagistrate jn the cases of stock killed on a rail road, does not alter the rules of tj)e corximoi) law in relation to such injuries.

An appeal from the Superior Court of Northampton county, at Fall Term, 1841, his Honor Judge Dick presiding.

This action commenced by a warrant under the act of Assembly (Rev. Stat. c. 17, s. 7) to recover damages for killing the plaintiff’s steer, and was brought up by successive appeals to the Superior Court. The killing of the steer by the defendants’ engine, while in their employment on their rail road, was admitted. It was proved by one *Culpepper,*a witness for the defendants, that, on *the*night *the*injury occurred to a steer, (which this deponent afterwards understood was the steer of the plaintiff,) he was in charge as .engineer of one of the engines belonging to the Portsmouth and Roanoke Rail Hoad Company. " It left Weldon about eight o’clock at night, bound to Portsmouth. The night was extremely dark and very rainy, with occasional lightning, When about two and a half miles from Gary’s, by the aid of a flash of lightning he discovered sorn,e cattle on the side of the road, and, being apprehensive that they might attempt to cross the road, he immediately reversed the steam, and ordered a boy, who was with him on the engine, to get upon *325the brake, which he did forthwith. In an instant it was discovered that there was a steer, or some animal of that bind, on the track, and in the attitude of rising. He was discovered too late, however, to stop the engine, and, as it passed over him, the engine was thrown off the road and the steer killed. This witness deposed that *every*effort was used to prevent any accident whatever, but that, owing to the darkness of the night and the position of the steer, it was impossible to see him in time to prevent his being run over: that the injury was purely accidental, and without any fault o.n the part of any of the agents of the company.

The judge instructed the jury, that, the killing of the steer being admitted, the plaintiff was entitled to recover, notwithstanding the testimony of Culpepper; for, taking all he said to be true, yet it did not deprive the plaintiff of his right of recovery. The jury found a verdict for the plaintiff, and a new trial having been moved for and refused, and judgment rendered pursuant to the verdict, the .defendant appealed.

No counsel appeared in this court for the plaintiff.

*Whitaker*for the defendants.

Daniel, J,

When the Legislature (Rev. Stat. c. 17, s. 7) gave jurisdiction to a magistrate in cases of this description, it did not intend to alter the rules of the common law, in relation to such enquiries. Culpepper, (whose deposition is made a part of the case,) says, that the injury was purely an accident, and without any fault on the part of any of the agents of the company. And the facts and circumstances, deposed to by him, shew that it was purely an accident that the animal was killed, and without any blame on the part of the agents. The judge, however, was of opinion, that the plaintiff was entitled to recover, notwithstanding. We think differently. A merely accidental involuntary trespass may be justified. *Beckwith*v *Shoredike,*4 Burr. 2092. If, in the prosecution of a lawful act, an accident which is purely so, arises, no action can be supported for an injury arising therefrom. *Davis*v. *Saunders,*2 Chitty’s Rep. 639. *Good*
      *326
      *man*v Taylors, 5 Car. and P. 410. But it is otherwise, where any blame or carelessness is imputable, though a person be innocent of any intention to injure. *Wakeman v Robertson,*1 Bing. 213. *Wooley*v *Scovill,*3 Man. and Ryland, 105. We are of opinion that there must be a new trial.

Per Curiam, New trial awarded.