The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1873-08-20
fRcrortcd for the nispatch.l
,,roRTANT DEClSION OF THE ST.
ruENE COURT OF APPEALS OF
VIRGINIA.

,,.,., rs. Tn IirGi"in a"d Tennessee Hoi'r"dd
lhc general rnlc IS that party hss right to
., g., The ~ t.ucc. and tho executions tn II arc
d., I.. las NJ such rghl when H." case Is clearly
$685., nln,. when IN" court doubts WHIST facts
... r.a>onahI, l'c inferred from the evidence tie
-" ,r,nnstauccs under which railroad CON-
~, t., liable 10 The owner IF the land through
..l. n Rms tnr Stock hllrd and injured by It's
r. me case Of Trout rs. The Virginia aud
-.nn,>~rc Railroad Company. lately deei-
~ the Court Of Appeals ut Wythcvillc,
n t,l1awioc i fhc substance uf the opinion
-l.. c,ur;. delivered Ivy Moncurc, F.:
! 1up,> i a S1iprrSrGcG$ 10 Il Judgment Of the
.. .ir Court of Roanoke county. rendered
.s action ~ trCsInS> on the case brought
.., plalnrn IN error. Trout, against the
.e,laut> III error. The Virginia and Ten.
...>,, Railroad Company, To recover dam
... FIR thr destruction of Two mares and
.... t,a:ry rf a horse belonging TO the plain
..s u., the railroad of the defendants. alleged
q. hove hrrn caused hy the negligence aud
.-.. ,r>,Nr>> ~ The defendants. their servants
..., ..-,u'>. ~ dri'in" and running their en-
.... ana coaches on said railroad in said
..r.h... ~" ~ y plea in the case was ..no1
r..;. - un which l>Stlc was Joined, and the
~, va> tried w jury. Four witnesses
SIRE examined IN behalf ot the plaintin,
.. adm. thr plaintiff himself mud five
n,haU ol the defendants. The cv,-
.a. beng mIly heard. the defendants
.r,d demurrer thereto. The plaintiff
.....,I To- ouiuG in tn" demurrer, hut tl.,
~. a,,rIulr,l toe objection and required
.. .n ,Ir -. which he accordingly did.
" .,.pnu the Jury found y verdict tor th,
q. ana assessed his dan.a-cs IL tho
...ut 5000. with interest al the rate OF SIX
20: .vu'um per annum The rcou from The 9Th
tei November. 1852, I'll paid. Sutjrr: to the
.@.on Of TIE c"n'' r'pnn the demurrer TO the
'..rne". | he curt was oi the opinion
-.d "r r'iuc' - was not sufficient III law 10
.w'Mn To- issue Joined on the part of the
.N''N .ud accordingly gave judgment FOR
IT. n,iau,> 70 ttiat Judgment the SUPER
t'..s afur,>aid MAS awarded by this count.
T., p'aiutin, in hi petition for $up,r-
5...s, roHplsju> that the Judgment is crro-
..,,i,> IN ~" respects only--vlz.. l>t. In re-
.Iirln. fhn itlinlltl 10 ioin in The demurrer
IT, h,,}ii,nrr: and. IDLY. In sustaining the
>ani demurrer. And,
flr,t. We are of opinion that the court did
r.. ,.r III requiring the plaintiff 10 Join in
H.. ,!.murrcy To evidence. The decisions
.. thu court on this subject. which are nu-
l .u,I>. and most of which were cited by
~. counsel TOR the defendants in error. plain
n ,aoW what Is the General rule, and what
-, ~, exceptions 10 il. Here the Court
l,,..y.i the authorities. and then proceed
,t III" General ru" is. that party has II
W-n a. Grulur to the evidence and the
,Ar.,'' ~ :" II are. that he has no such right
"t,H t!r trl>" j. clearly against him, or
v..,n IN" court doubts what facts should
reasonably Tee inferred from the evidence de-
wUrnd 10. i kohm>on'S Pr. old edition.
'., ms case falls under the general rule.
aga pot under cit her OF the exceptions TO it,
~rrpr,'y. W" are of opinion that the Cir
.U' Count erred in Sustaining the demurrer
;ytb",lidencc. (Ilerc the Court stated sub
>'luii,ljy AL the evidence, and then proceed
~ thc>N:
Having stated all the evidence on both
-lI' (Which We deem 70 be material TO the
drri>i ~ 81 the Question arising on the Sc
r"Hd assignment 81 error. we now proceed
''wH>drr that luc>tiun--viX.. Whether the
'"'It rTr'u III sustaining the demurrer to
.itirur":
Il Go'> notappear that the pE,intiti"> horses
-d ui'"n the defendants railroad track hy
reason "i ANY fault or neglect on his part,
'dl - contrary rather appears. He made
.na Kept upa GOOD and sufficient fence ON
,a.a Id" 81 the track from the bridge across
Peter creek ill The way 10 the c;ltte-mlmrd
A. th" west end 81 his land and at his only
u"-.ln- ui the track in that whole space he
IA,ni" ana kept up Il sufficient cate with
sufficient taSttnugS on each >i0e of the rail-
road; and il does not appear hat he did not
U,r due diligence 10 keep the gates shut and
il>lcucd. He passed through and shut them
du!.n- the >ilI" night in which his horses
Wei" Killed. but before the train that killed
,h"ln passed along he road. He has right
10 t.>r his land through which the railroad
!.!i, IL Well Tor pa,ttlrage rs for tiurc. aud
H. 4 convenient way across the track from
hi land on one side to his land on the other
for hi plantation and other purposes Code,
J. nothing unlawful III his permitting
III n"i4hhor> To Use that way as mill OF
u'G-i,L"rhood road. If his horses, during
ii'. might. when two of them were killed
I-d Il third disabled by the engine of de
irirlant>. rot through one of the gates and
upon the railroad by reason Of the said gate
having teen lief, open by some person with
oul The know ledge or consent OF the plain
IN. ~ was probably the fact. the plaintiff
cannot Justly be blamed therefor
Being without fault in this matter, he hat
ali-lt It. expect and require the defendant,
/" "r very careful not 10 iniure has horse,
ihIl~ found upon the road ; and this give;
hlin Great advantage III this controversy.
TN The other hand. there We're no cattle
Guards At the plaintiffs crossing of the rail
road. II there had been, the horses coult
only have crossed tie road. and could no
tGNr cone up " down upon it--none o
ih"m would have been killed or injured
TIE yinhnIf had 10 right 10 make thcs,
cJtl guards. at least without the consent o
The defendants. 1heu only had right 4
make them, or permit them to be made
~" plaintiff "mcntioned TO the section
master that there ought to he cattlc.glard,
Vt HE crossing who replied that it would
J." useless 10 apply, IL he could not ge
t!I'ln. lie therefore made no such applca.
uoh. / he defendants knew there were ut
rlt,-guards there. and that they would be
81 great advantage in preventing in jury moi
only 10 stock which might get through ont
ct the gates upon the raiIroad, but TO irsseu-
gers Travelling over the road.
II l. unnecessary for lis TO decide, and We
d" not decide i'll this c;lsc, whether the mere
omission 10 make such ctttlc-guardS was il
ITSELF such negligence on the part of the dc.
i'Hdhnis IL made them responsible for the
"aungr done to the plaintiff in the killing
and disabling of his horses But we think
y" may at least say that, not having used
That obvious preCauton. the defendants were
'nHnG 10 be very careful not to in iurc the
p'hn';tl- hor,c>, which were enabled to 70
Ion the road only because there were no
'Hlil"-Suards at The crossing.
lhl- being the relative position of the par.
lI'-. wc now address ourselves to the qtles.
''on>, Whether, according to the settled rules
81 "a" winch govern the court in lis deci.
non upon demurrer to evidence and to
MhlLll We llAl. ulr.:ldr rnin rrnl iLnrn ,y.Is