Clarke courier. [volume] (Berryville, Va.) 1869-1997, 1907-07-10
Verdict For ZOmbrO.


Que OF the most interesting cases
which has been before his court in
recent years, as it set precedent.
being the first case of the kind
ever to come before the court here.
The case was that of Joseph f..
Zombro, of Clarke county, against
the Norfolk and Western Railway
Company. Zombro was tenant
on the Kerfoot farm, and when the
railway was built through Ker-
foot's land the railway paid Ker-
foot To- build and maintain a fence
through the farm. Cows and
horses of Zombro got on the track
and raced to Thompson's adjoining
farm, and were run down and killed
by a train. The railway had con-
structed fence through Thomp-
sons land. but had no cattle guards
10 prevent cattle from other lands
getting on the track.
Judge Harrison construed the
statute TO require the railway com
pany To enclose all land required
to be fenced. not only with fencing.
but with cattle guards, and if stock
is Killed on any part Of the track
which the railv ay was required to
enclose. the railway company was
liable. even if stock got on the
track at Il point at which the rail
way was not required Ia fence.
The effect of the decision is that
the owner or stock. even though
the owner of land which the railway
has paid him to fence. can recover
the value of the stock from the rail
way. if they are not killed upon
his land. even though they may
have gone on the track on his land =,
provided they were killed on that
part Of the railroad which the law
required it To enclose.
The court gave judgment for the
value of the stock killed, amounting
to Sl35.
The case was submitted on briefs
by MIR. Marshall Mccormick for
the railway company. and Messrs.
Whiting K Smith for the plaintiffs.
AS the ruling in this case will be
of vast interest TO all farmers and
landowners in the State, we print
below Judge Harrison's 5 memoran-
dun in full:
i do not consider that the plain
tiff has made its case against the
railroad Company on the ground
of negligence, and that the liability
of the Company depends on the
statutory requirement 10 fence.
/ will not review the evidence on
the allegation of negligence any
further than to say. that the rail
road Company is not obliged to
stop its train upon the mere dis
covery of stock i'm the vicinity of
the track but only after it becomes
reasonably apparent that collision
is impending. Taking the certifi-
cate of evidence furnished by
plaintiff it is not shown. that after
1t became apparent to a prudent
man collision was impending the
accident could have been avoided.
FENCE LAW.
A very careful and as painstak-
ing consideration as can give any
subject has brought me to the con-
clusion that the railroad Company
has not complied with the statutory
requirements in this respect and is
therefore liable. Owing To the
fact that br%t few Of these eases
towing to the amount involved
can find their way To the Court
of Appeals, the contraction of the
statute rests with the nisi prius
Court in great part. AS each new
question arises / find it necessary
to reach a conclusion, which is
thoroughly satisfactory to my OWE
mind, in order that it may be
a precedent in other cases.
do not consider it necessary to
consider whether tenant stands
on different footing from the
owner of the land for in this case /
am of opinion that had the COWS
been the property of Kerfoot he
would have been entitled 10 re-
cover.
The provisions of our statute |
believe are in many respects pc
culiar. 1t is more than a mere re-
quirement TO fence, as the statute
in many States merely are. The
decisions of other States on many