The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1873-08-26
rForthc DIspatch.J
RAILROAD LAW IN VIRGINIA.

| Trout rs. me bU9t"to "''" 4'''''1o A''''
road Company:
| II NAV seem presumptiouS in an obscure
| lawyer TO review and dissent from deci-
| sion of Il tribunal so august in its character ;
90 III 1u;tied and elevated in its personnel; so
snotless in its purity, rs is the Supreme Court
n ADpeas of Virginia. A decision, too,
enuncated through tile opinion Of its presi-
dent. the Ncstor of the profession, who has
{. sounded all the depths and shadows of
the law; who is rightly revered for all the
virtues which can adorn the ermlne or the
man.
II would, indeed, be presumption were
the criticism prompted by concelt or cap
tiOusncss. But that court can well afford TO
see its decisions tested by the serercst scr1tl-
nv, and there is not one member OF 1t who
would not desire the most thorough eXam-
nation of them if made in spirit of fair
and honest inquiry after truth and right.
In that spirit, beg leave to invite the at
tention Of the bar TO recent decision H.
volving a principle of vast Importance to the
railroad interests, aud, in some measure, to
the travelling public.
mean the recent decision of the Supreme
Court of Appeals in the case OF Trout rs.
The Virginia and Tennessee Railroad Com
papv, report of which [ have read in the
Dispatch of August Goth, instant. All my
information OF the case is derived from that
report. .-,-,.....
The facts set forth there are:
/. That the Virginia and Tennessee rail-
road was located through Trout's furm, cut
ting it into two separate parts.
3. That Trout had a right Of transit across
the railroad track from one OF these parts to
the other for the use of the farm and its
gunner under the code, and had Il private
wagon way for the purpose.
3. That Trout's farm was securely fenced
on both sides of the railroad with gates in
said fences on each side OF the railroad at
this private crossing, to which gates there
were secure fastenings, but no locks, and
that the gales were never locked.
1. That there were no clttle.guardS at this
farm crossing. .,.... .......
). That Trout's stock pastured in the
field where one of these gates was, and that
three of hisihorSes, there pasturing, got out
through the gate onto the railroad track.
6. That the night train, being al hour be-
hind time, passed over the road at this point
at Is miles al hour. The engineer seeing
the horses (bv the aid of and within The
reach of bis bead.light) on the track, wills.
tied to scare them OIL; two of The horses ran
I'D the track out Of sight, and the engineer
supposed that they had left the track. The
other stood still, was struck By the cow
catcher. thrown of, and killed. The engine
overlook the other two (Which had not left
the track, drove them into the cattle-gmrd
ut public road one was killed, and the
other crippled.
7. That the engineer did not reduce his
speed before the horses were killed or
crippled. g g.. e r... f.. f..
s. That Trout had passed through these
gates before dark OH that day, aud had
closed the gates and secured them by the
tilsteningS, which, we infer, were latches or
slides, which a brute: could not remove or
open. ., -, .s ,a ....
Q. That Trout permitted the public gene.
rally to use this farm rold-crossing and
gate as a neighborhood and mill road.
10. That the gates anust have been left
open or unfastened by some one passing
through after Trout had closed them.
The Supreme Court Of Appeals reversed
the Circuit Court and decided that Trout
was guilty of no negligence That the rail-
road cou1 pauy, through its engineer, was
guilty of negligence, and that the railroad
company was liable to Trout for the damage
to his horses-S500. ...-...., -.
Ii these be all the facts in evidence, the de-
csion surprises me, and seems not conSo-
nant with the law of railways. The pre-
sumption is that the error Is with me; but
il can do no harm to look at the matter.
10 impose liability on a railroad company
for injury property, or even to limb or
life fother than those of passengers, there
must be proof of negligence on the part
of the railroad company; that is, in general
terms, the omission or commission Of some
thing which the law requires them to do
or not TO do. And not only this, there
must be no concurrent negligence on the
part of the party injured. . H..
Concurrent negligence bars recovery.
Pittsburgh, Fort Wayne and G. X. Il. Co..
VS.. Evans, SO Pa. State Reports, $50. ~
Whether the engineer was in the wrong
is a separate question Of itself, and seems
open to doubt under the circumstances.
Another distinct question, and one equally
important, is chether Trout ,sdS in default
or a0t-were his horses on the track through
any negligence of is-through the omission
OF anything which it was his duty to door
through the doing of anything which he
ought not to have doue.
II he were In default this case itself settles
that lie could not recover.
Was he not in DEFAULT? What were his
rights and duties5 Trout's easement Wus
nothing more than. u right OF transit across
the railroad at that point for the use of HIM
self and his farm erclusiUely-it was per-
sonal to him and his, or incident TO the land,
and extended no further. His right was
limited to this transit. His properly could
not lawfully stray or stop on the track or on