The times. [volume] (Richmond, Va.) 1890-1903, 1897-02-04
Not Liable for En- )lOysS or Passengers
Killed by Reason Of Failure
TO FENCE IN THEIR ROADBEDS.
Jndcc Cons Opinion Had the Law Been
20 Intended tho Legislature would
Have said 20 in Unequivocai
Language Yesterday ascs,

liability OF railroads for injuries resulting
20 their passengers or employees from
failure 20 comply with tie provisions OIL
scctlon 1858 of chapter D.. code OF VIZ
einia. iS,l. The result OF the case Is q
victory for the railroads.
The causc in question comes 90 The aD-
psl.atc court ou appeal from the cir
cuit Court of tine United States Tor thc
Western district of Virginia, and Is styled
". Carpcr rs. the receivers or the
Norfolk and Western Railroad Company.
ube allegations upon which the suit was
brought were that Edward Newson, em-
rioyod as q brakesman on tine Norfolk
and Western was run over and fatally
manCled during tho ycar 1895. ass 81 re-
suit OF the negligence of the management
OF tho railroad
ROADRED NOT FENCED.
The negligence alleged in said count
WAS in substance as follows: That said
railway. in passing through the county
OF Wvthc. iu the state of Virginia. ran
through the enclosed lands of one J. !.
shcney. then leased 20 one George l..
Carter. and that 10 was the duty OF SAID
Norfolk and Western Railroad COMPANY,
under tho requirements of sections Los
and .25g of the Code Of Virginia, TO erect
along on both sides Of its road-bed' at
the point where the grievances COM
plaincd Of were committed, on said Shei-
fev land. lawful fences ana Keep inc
snme in good order hut that the deieh-
dsnfs failed i'm their said duty and ne
elected 10 erect and keep I'm repair such
fences: and. also. that they allowed said
carter 10 erect and use cattle-pen ON
their said road-bcd for the purpose OF
loading cattle upon the cars and ship
ring thom over said railroad and that
tbcv noclircntly allowed him TO construct
such non in a faulty manner and or In
ferior material. whereby 10 was entirety
insufficient 60 restrain and Keep Wlthh
its bounds tho largo and strong catlle
that Carter was in tho habit of placing
therein. and that on the night OF --' IN
1906 "a number Of such cattle escaped out
OF said pen into the enclosed lands men
toned and. ass there were no FENCES as
required by law such cattle strayed upon
the tracks of the railroad. and the ireight
train upon which Nowsom was employed
as such brakeman. ran into the catte
and was doraied tho cars being broken
and tho said iutcstate so injured and
killed
NTLEGFD ERRONEOUS INSTIiCC-
TIONS
Tho ground upon which the case was
rnnealod was that the instructions 10 tne
1urv in tho first trial were improper.
and contrary 90 the Code Of virginia
The instructions i'm Question were as fol-
lows.
"lf tho Jury find from the evidence that
the cattlc-pcn i'm question was not con-
strgcted hy defendants. that the same
was constructed by the occupant or the
farm in question. that IL was intended 10
lie erected upon the lands adjoining de-
PENDANTS right Of way and that by mistake
the enclosure of said pen extended for
short distance ON the right of way 10y de-
Pendants then the defendants we're not
responsible for any fault or negligence
In the construction and use Of said pen.
and there can be no recovery in this oc-
ton anon tho ground of the improper
or negligent construction OF said cattle
pen.
"The court instructs the jury that the
duty imposed by the statute upon the
railroad companies 20 fence their rail-
road is a duty only 20 the public and 10
the owner of the cattle of the enclosed
lots OF lands through which tho railroad
runs. and an employe of the company re-
ceiving a personal injury M an accident
consequent upon q failure 10 maintain
proper fences cannot recover damages
of the railroad company for such in
jury. without showing negligence other
than the failure TO fence. and unless tho
Sufv should believe from the evidence
that the plaintiff IN this case has shown
that his intestate Edmund Ncwsom. was
killed through some other negligent act
Of the defendants. their agents OF SER
wants than ihe neglect TO fence their
road-hod at this point they will find for
The defendants. although they may believe
from tho evidence that the defendants
were bound under the statute TO fence
their rOad-bed at this point and had
failed and neglected to fence the same
Tho court instructs the jury that all
evidence bearing upon the question as 20
enclosure of the lands through which
the defendants line ran is irrelevant 20
the case under consideration. In view of
the instructions given by tho court on
that question
THE LAW OF 1857.
The section of the Code requiring rail-
roads to fence I'm their tracks reads as
follows:
Section 1.25S. TO enclose road-beds with
fences, cattle guards.-Evcry such COM
pany shall cause 10 be erected along its
line and on both sides of its road-hed.
through all enclosed lands or lots. lawful
fences as defined IN section two thousand
and thirty-eight which may be made of
timber or wire. or OF both. and shall
A''F Nlif nNIli' lil proper lNI'ttAAt anu NAtli
which the owners Of adjoining lands may
connect their fences al such places as
they may deem proper in erecting such
fences. tho company shall not obstruct
any private crossing. but on each side
thereof. across its rOad-bed. shall con-
struct ana keep I'm good order, sufficient
cattle guards with which its fences shall
be connected. Such castle guards may be
dispensed with by consent Of the owners
OF such private crossings. the company.
IN heu OF cattle guards. erecting and
keeping In good order sufficient gates"
JUDGE GOTfS OPINION.
In delivering tho opinion OF the court
Judge Con says. IN part:
Before this law WAS passed railroad
companies were liable. as they are now
20 passengers whom thcy had agreed for
hire 20 safely transport for any injury
occasloned by the negligence or want OF
ordinary care on the part of the servants
Of said companies; ana thcy were then.
and are now, independent Of such leglsla-
tion. liable 20 their employees FOR injuries
occaSioned by such negligence. as 10
which such servant had not contributed
save only such risks as are incident 10
and were assumed by such cmploye at
The tine of his employment What addi-
tional remedy. II any. IS given by this
rtatute 20 .he passenger or empl0ye upon
the railroad trains I'm Virginia. on ac-
count OF injuries caused by the failure
OF the railroad company 20 fence It's road
bedg We are unable 10 find any. SO far
as the owner OF the stock Is concerned
the remedy IS plain and adequate. Had
the Legislature intended 70 provide an
additional liability on railroad companies.
49,