The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1876-09-25
IMPORTANT DECISION.
Liability OF Railroad Companies For
killing Stock.

The following is the syllabus OF de
cision rendered by the Supreme Cour
of Appeals of West Virgins, at Charles
town, on the 9th Of September. Th'
opinion, which is quite elaborate and ex
haustive of the subject, was prepared by
Judge Raymond, President of the Court
and concurred in by Judges Moore
Green and Edmhton.
Wiliam C. Blaine, pIaatiG Jelo'0 and defend
U,tm cTa,A ~ ~
The Chesapeake and Ohio Railroad Com
pdny, defendaRt beloV and plainh6 in
error.
l.. A case IN which a declaration
in trespass on the case, against
railroad company fJr killing II
horse of the plaintiff on its railroad
track, was held sufficient upon demurrer.
See opinion of the Court:
9. After the plaintiff, under such count,
had given to the jury evidence tending
to prove that the defendants agents and
servants had, by negligence in running
the defendants locomotive and cars Kill
ed the plaintiffs horse at the time and
in the manner alleged in said count, and
also the value of said horse the defend
ant offered in evidence a deed from one
Waters to the defendant, for the purpose
Of proving that the horse which was
killed was, when first seen, on land own
ed by defendant, and that defendant had
ACQUIRED title thereto from said Waters,
and to show that defendant had made d
contract with said Waters to fence the
track of defendants railroad through his
farm; and the plaintiff admitted that the
defendant had acquired and owned title
to the land occupied by its track, from
the said Waters, but objected to the adj
mission of the deed to prove con-
tract bet ween the defond dant and Waters
in regard to the fencing of said track,
and The Court refused to allow the deed
to be read for SAID purpose, stating that
the defendants title TO said land was ad
mitted, and excluded the deed; HELD
that, under the circumstances, the Court
did not err to the prejudice of the de-
feHdant.
g. There is no law in the State of West
Virginia, Of general operation, prohibit
ing the owners Of domestic animals, con-
sisting of cattle, horses, hogs, NC, from
suffering them 70 run ut large upon the
range of uninclosed land, except when
unrulv AMI dangerous; and the rule Ct
the common law of England requiring
the owners of such animals to keep them
on his own lank or within Enclosures, has
never been in force in West Virginia,
Icing inconsistent with the legislation of
ne State.
4. The owner of such animals, in
allowing them - be At large on
the range OF unlnclosed lands
is not chargeable with al IN
ia,cf,d act, or an omission of ordinary
care in keeping his stock, subject to the
qualification, however, that animals
which are unruly or dangerous, are re-
quircd to be restrained.
5. There is no law in this State, of gen.
eraI operation requiring, any person to
fence his land uninclosed, but the person
who leaves his lands uninclosed takes
the risks of intrusion thereon by the do
nestle animals of Others, running at
large, and the owner Of such animals, in
allowing them to run at large, takes the
risk Of thhif loss, or of injury to them by
unavoidable accident from any danger
into which they may happen to wander.
&. I he right of railroad company to
the free, exclusive and unmolested use OF
its railroad track is nothing more than
the right OF every land proprietor in the
actual use and occupancy Of his lands,
and does not exempt the company
from the duty enjoined by law upon
every person, so to use his own property
as not to do any injury to another.
!. There Is no law IN West Virginia
recurring railroad companies to fence
their road, but when they leave their
road open and uninc!osed by sufficient
fencing and cattle guards, they take
the risk of intrusions upon their roads
by animals running at large, as do other
proprietors who leave their lands unin
closed; so that the owner OF domestic
animals, in allowing Them to run at large
takes the risk of their loss or injury by
unavoidable accident; and the company
in leaving its road unprotected by al
inclosure runs the risk of animals at
large getting upon the road, without
any remedy against the owner OF the
animals.
8. The liability to make reparation
for an injury, by negligence, Is founded
upon An original moral duty
enjoined upon every person, so to
conduct himself Jr exercise his own
rights rs not To injure another. .
8. The remote negligence of the plain
tiff will not prevent his recovering for
an injury to his property 'm"'ea'"tety
caused by the negligence of the defend.
ant. The negligence of the plaintiff that
defeats recovery must be n prOr'n'ate
cause of the injury,
10. Suffering domestic animals to run
at large, by means whereof they stray
upon an uninclosed railway track where
they are killed by train, is not In gen.
eral a prO.riHtGte cause of the loss, and
hence, although there may have beeu
some negligence in the owners permit
ting the animal TO 20 at large, such neg
ligeuce being only u remote cause of the
Loss, it will not prevent his recovering
from the railroad company the value of
the animals if the immediate cause OF
their death or injury was negligence OF
the company's servants in conducting the
train.
IL. The bare fact that railway is un-
iuclosed, there being no statute requiring
it to be fenced, does not in general rem
der the railroad company liable to pay for
animals straying upon the track and
killed by train-such want of fencing
beng in general only remote cause OF
the loss
u Whena railroad company leaves
its railroad uninclosed through country
where domestic animals are allowed to be
at large, ard thus exposed to the casual
ties of the animals getting upon the
railway track, it is the duty of the rail
road company through its agents 20 use
at least ordinary care to avoid unneces-
sary injury to the animals when found in
the way Of train on the road. The