The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1873-08-20

they went through at the usual speed nroho.
DRY itt'c raster, but could not tell. The train
was about an hour behind time. After the
hlmd mare was killed, and before the trim
reached the top of the grade. the enpinee,
saw TWO or three other horses some ono him.
dred ana nifty wards ahead on the track ue
blew his whistle for the purpose of scar;nc
them Oh from the point from which he saw
them till he reached the top Of tho Grade
ana saw nothing more of them until he WINS
"Hhn thirty or forty feet Of the cattle
guard. On the next day horses tracks were
seen on The railroad from the crossing TO the
cattle'suard, which indicated That horses had
oeen running from the time of tho near an
preach Of the train.
1t appears that the engineer had annie
TIME alter seeing the first horse TO stop the
engine before reaching the place where that
morse was. tie commenced whiStlng east
OF the bridge, no doubt because he saw the
blind mare on the road some two or three
hundred yards ahead.
According to his own admission. he could
have stopped his engine within that distance
though ne was going mt the speed of seven
teen or eighteen miles an hour. And so also
he could easily have stopped his engine after
seeing the other horses in full time to have
avoided any injury of them. Instead of that.
he did not >lirken his speed, according TO
the plaintiffs evidence, from the time he
saw the first horse indeed, from the
time he first blew his whistle on the
east side OF Peters bridge-untiI he got
entirely through to the crtte-g,iard. Be-
ing behind time, his plan seems to have been
10 dash through at full speed, whistling all
the way. and thus scare the horses off the
track or else throw them of with his engine
The mare that was first killed did not move
from me place where she stood when she
WAS first seen 10y the engineer until she was
Killed and thrown of the track by the en-
ginc. She was blind in dec; cut. and
could not get OF the road, and knew moi
where to go nor what to do for safety. II
does not appear that any of her limbs were
broken, nor was she run over by the train
She was probably killed by the COW catcher.
and thereby thrown of the track, ont
of the way Of the train. which cob.
tinted to 20 on without INTERRUPTION.
In regard to the other horses.
they were not driven OFF the track, nor over.
taken until they were stopped by the cattle
guards into which, it seems; they all were
forced and crowded, and where one of them
was killed and another disabled by he en-
CINE. The engineer well knew that there
was no way of escape from certain destruc-
ton to the horses on the track between the
ro>,ing and the cattle-guard, except two
| ways. one Of which was by. getting on the
side of the track until the train passed them,
! and the other was by going cut at the draw
| bars. surprising that the bars happened to
| be- down at the time. He could not have eX-
| pccted the horses to get on the side of the
| track until the train passed them. They
were too much frightened for that by
the loud whistitug of the engine.
the strong headlight. and the close
pursuit of the train, confined, as the track
| was, between two fences, ana running, as 1t
did, through deep cuts and OIL embankrncnts.
| 1t was extremely improbable that the bars
| would be down, and extremely improper in
the engineer, in 80 important matter. TO act
upon the assumption that they were down.
He says he thought when he reached the
top of the grade and saw nothing more of
tie horses that they had gone out into the
plaintiffs field through the bars near the ton
OF the grade; but lie ''doeS not rccollect
that he noticed that night whether The draw.
bars were opened or closed" lie saws "he
does not think his headlight would
have extended to the .draw-bars. which
were about thirty feet from the track" The
evidence on the part Of the plaintiff shows
that they were nearer than that, and could
no douh! have been seen by the engineer il
he had looked that way. He ought to have
looked that way; and even if he could not
have seen them from the engine. he ought to
have ascertained certainly before he passed
them whether they were up or down. No
doubt they were up, and he would have
| a>ccr:ained the fact TO be so il he had looked
| that way or made an examination. But,
whether up or down. it was his duty, not
>criug or knowing that the horses had made
| their escape, 10 proceed with the train
very slowly from the bars to the catte-guard,
Il distance OF $50 or 400 yards, and thus
have avoided the possibility, as in that way
he would, Of iujuring the animals. Instead
of that he continued to 20 on in such speed
! that he drove and forced all the remaining
horses into the cattle-guard, and killed one
| and disabled another of them.
| We think that, according to the evidence,
the engineer did not exercise reasonable
and proper care in running the engine to
| avoid injury to the horses Of the plaintiff
that he was guilty of neglect, and even
| gross ncglcc', in regard to the same; and
that in consequence of such neglect two of
the horses were killed and another one was
disabled. The question now to be consider
ed is. Whether the damage thus sustained is
ddn,num G6Squc 'njurid or not whether
i The defendants are ur are not liable therefor
to the plaintiff!
We think the defendants are so liable,
Their learned counsel, to show the contrary.
relied very much on The case of Railroad
Company Is. skinner, 10 Penn. State Reports
29S, also reported in Redfeld's American
Railway Cases, 34I. We find no fault Will
the decision of the court in that case nor
kwith a great deal OF what is said by The
learned Judge who delivered the opinion o.
the court in the case; but we cannot assent
to what ne says in conclliSion-to wit - We
are of opinion that an owner of cattle killed
or injured on railway has no recourse to tht
company or its servants" Surely this Ian
guage could not have been Intended to bt
used in Il general sense. but only in connec
ton with the case before the court, for i
is directly in conflict with admissions con
tanned in the same opinion, that Il company
! is an>wcrable " for grituitous damages ant
"for negligence or wanton injury At al
events. the conclusion is not true in gene
raj sense, as is fully shown by the authorities
referred to by the learned counsel for TIT
plaintiff. See I RedfleId on the Law of Rail
WAYS, PIP. All. Ala, AS, AT, 493. 49S, ant
the cases cited, especially Jackson as. RUTLAND
and Burlington Railway Company, 20 Yer
mont. 80; and Central Ohio Railway Com
,mny rs Lawrence, l3 Ohio, N. S., GO, tht
observations of the court in which case ap
pear to be very reasonable.
| But the cases just cited from the Pennsyl
| yaua, Vermont, and Ohio reports were al