Kirk v. Norfolk & W. R. Co. (N. s.) Primary Duty of Railroad Company is to Its Passengers and Freight.— The paramount duty of the agents of a railroad company engaged in propelling a train is owed to the persons and property in their charge on the train; and if, in freezing weather, it is found that the use of salt on switches is the only effective mode of freeing them from ice, and thus protecting their passengers and themselves from the dangers consequent upon a wreck, they may avail themselves of this method, although it may have a tendency to lure stock to the track, and endanger their lives. Duty of Railroad Company in Respect to Stock is Subordinate. If the servants of the railroad company in charge of a train, by exercise of ordinary care, can see and save domestic animals which have wandered on the railroad, it is their duty to do so; but this duty must be exercised consistently with the paramount duties they owe to the passengers on the train under their charge. ERROR to Logan county circuit court. Campbell & Holt, for plaintiff in error. Reversed. ENGLISH, J.-This was a civil action brought by G. W. Kirk against the Norfolk & Western Railroad Company, before T. J. Mead, a justice of the peace of Logan county, for a wrong alleged to have been committed by the defendant, in which damages to the amount of $300 were claimed. In the complaint filed before the justice, the plaintiff alleged that between the 1st day of October, 1892, and the 1st day of March, 1893, the defendant killed three oxen, and crippled another one, which belonged to the plaintiff, of the value of $45 each for two that were killed, and $65 for the other, and $25 for the one that was crippled. On the 17th day of June, 1893, the case was heard, and judgment rendered for the plaintiff for $160, with interest till paid and costs. An appeal was taken to the circuit court. An amended complaint was filed. The plea of not guilty was interposed. Issue was joined. A jury was waived, and the matters of law and fact were submitted to the court, and resulted in a finding for the plaintiff, and assessing his damages at $125. The defendant moved the court to set aside its finding, as contrary to the law and the evidence, and grant it a new trial, which motion the court overruled, and entered judgment for the plaintiff. The defendant excepted, and took a bill of exceptions, setting forth the evidence introduced upon the trial of said cause; and thereupon the defendant applied for and obtained this writ of error. . & Eng Cas Kirk v. Norfolk & W. R. Co. Now, the injuries complained of occurred at different times. The evidence shows that about the 15th day of December, 1892, the plaintiff found one of his work oxen had been killed, about 100 yards below the Vinson switch, on the Norfolk & Western Railroad, in Logan county, W. Va. The steer was badly bruised up, and some of its limbs broken, and it was lying by the side of the railroad track. He did not see it killed. It was worth $40. This was all of the evidence. adduced in regard to the killing of this steer. The testimony is entirely silent as to the circumstances under which it was killed. So far as appears, it may have been killed in the night, when it could not have been seen. It may have come suddenly onto the railroad track, and no negligence could properly have been imputed to the defendant; and the burden. of proving negligence rests upon the plaintiff, so that, as to this steer, the court surely would not be warranted in assessing any damages against the defendant. Another one of plaintiff's steers was found dead by plaintiff, lying near the railroad track, about two weeks after the first one was killed, at the Breeden switch, in said county, on the line of said railroad. This steer had both of its hind legs broken, and was lying on the switch. He identified the steer, but knew nothing of the circumstances attending the killing. A witness, however, by the name of Ferguson, who resides near the Breeden switch, states that some time in January, 1893, he saw an ox which belonged to the plaintiff struck by a train near said switch; that he heard the train coming down the creek, and looked out of the window of his house, and saw some cattle standing near the track; that one of plaintiff's steers was struck, and thrown off of the main track onto the switch. It was badly crippled, but not killed, and shortly afterwards it was buried by the railroad hands working on that section. This train whistled just before or about the time it came in sight, and was running fast. He heard but the one whistle, which sounded like it was for a whistle post. If any other alarm was given before the steer was struck, he did not hear it. He was about 50 feet from the track where the steer was struck. That stock could have been seen about 175 or 200 yards from the direction of the approaching train. It was a passenger train, and did not appear to slacken its speed either before or after striking the steer. This occurred in the evening. Now, it will be perceived that the cattle, when seen 1 Kirk v. Norfolk & W. R. Co. . IV by the witness Ferguson, were not on the track, but were standing near it. He was only 50 feet away, and could see the position of the cattle. At what time this steer came onto the track, so as to be in the way of the train, does not appear. He may have been alarmed by the whistle or the noise of the approaching train, and have attempted to cross the track. At any rate, he went onto it, and his hind legs being broken would indicate that he was moving along the track in front of the train, or attempting to leave it. How near the train was when this occurred does not appear, but it must have been very near, as it was a passenger train, and was approaching rapidly, while the ox was changing his position from near the track onto the track itself. From this testimony, we may readily infer that, when the cattle were first seen by the trainmen, they were near the track, but not on it, as Ferguson so places them when he heard the whistle of the rapidly approaching train. The cattle could have been seen, say, for 200 yards; Ferguson says, from 175 to 200. A train running at the rate of 25 miles an hour would run 200 yards in about 15 seconds, which would allow the steer but a quarter of a minute to change his position after the train came in sight; and, as the engineer states, the train could not have been stopped if he had had the entire 200 yards in which to stop after the steer came on the track, but, so far as appears, he must have stepped on the track immediately in front of the train, and no amount of diligence on the part of those in charge of the train could have prevented the collision or the death of the steer. Under these circumstances, we think the court erred in finding against the defendant the value of this steer. About the 15th of January, 1893, the plaintiff had another steer killed, and a fourth one crippled, at or near Vinson switch, in said county. He did not see it done. The one killed was found lying near the track, and the crippled one was also found near the railroad track. The one killed was worth $40, and the damage done the crippled one was at least $25. The only testimony in regard to the circumstances of this last occurrence is that detailed by one William Kirk, who states that he was working near said Vinson switch, hauling saw logs; that a short time before the killing of this last steer and crippling another at said switch, about the 15th day of January, 1893, some salt had been used at said switch, and it attracted the cattle which were being used there to haul saw Kirk v. Norfolk & W. R. Co. logs; that the railroad at that point, and for some distance above and below, was not inclosed in any way, there being no station or depot, only a switch to receive saw logs on the cars; that, on that evening, he noticed the cattle at the switch, licking where the salt had been used, and he drove them away, fearing a train would come along and kill some of them. After driving them away, he returned to his log shanty, on the opposite side of the creek. A few moments afterwards he heard a train coming down the creek, and stepped out of his shanty, and saw the engine run in among the cattle, which had returned, and were again licking salt at the switch. He went across to the railroad track, and found one ox killed, and one crippled, both of which belonged to plaintiff. He describes the injuries received by the cattle, and says they were both found near the switch, and were part of the cattle which he had a short time before driven away from the switch. This was at or near dusk. The train consisted of a locomotive, baggage car, and two passenger coaches, and was running about 25 miles an hour, and, after striking the cattle, kept on at the same rate without stopping. Stock could have been seen a distance of about 200 or 300 yards on the track from the direction in which said train was approaching. If any alarm was sounded by either bell or whistle, he did not hear it. Now, it will be perceived that there is no evidence that these cattle were on the track at the time this train came in sight of the switch. They had been driven away by the witness Kirk a few minutes before, but when they returned he does not know, and does not state. He states that he saw the engine run in among the cattle when he stepped out of his shanty, but when they returned he does not know or say. So far as the evidence shows, the cattle may have gone on the track immediately in front of the approaching train. If they had been on the track sooner, it must be presumed that selfpreservation, if nothing else, would have prompted the trainmen to do their duty by sounding the alarm; and the fact that no alarm was sounded strongly indicates that nothing was seen on the track; and it is incumbent on the plaintiff to show that the cattle were on the track, and were killed and crippled by the negligence of the defendant. It is contended by counsel for the defendant in error that the use of salt in thawing out the switches, and thus preventing the accumulation of ice from throwing the train from the track or creating such a liability, which had the effect of Kirk v. Norfolk & W. R. Co. . IV. (N. S.) Vol attracting cattle to the switch, was negligence on the part of the plaintiff in error, and cites Brown v. Railroad Co., 27 Mo. App. 394, and Morrow v. Railroad Co., 29 Mo. App. 432, in support of his contention. An examination of said authorities, however, shows a very different state of facts. In the first-named case the railroad company allowed quantities of salt to be piled on and near its track, and to remain there after it knew the salt was there, by reason of which a horse was attracted to it, and killed. In the second case, several merchants had a refrigerator near the railroad track, and the brine running from said refrigerator caused the ground near the railroad to be saturated with brine, which attracted a cow to the track, which was killed. It was shown that the railroad had notice, and had neglected to take any steps to correct it, and this was held to be negligence on the part of the railroad, and that it was liable. It is, however, shown in the case under consideration, that the use of salt at switches is an absolute necessity, to protect the lives of passengers and others that travel on railroad trains, and not to use it would, in case of accident caused by such failure, be regarded as an act of negligence. In the case of Blain v. Railroad Co., 9 W. Va. 252 (point 5 of syllabus), this court held: “There is no law in this state of general operation requiring any person to fence his land uninclosed; but the person who leaves his land uninclosed takes the risks of intrusion thereon by domestic animals of others running at large, and the owner of such animals, in allowing them to run at large, takes the risk of their loss, or of injury to them by unavoidable accident, from any danger into which they may happen to wander." And in point 12 the law is thus stated: "Where a railroad leaves its railroad company to avoid injury through a country where domestic animals are allowed to be at large, and thus exposed to the casualties of the animals getting upon the railway track, it is the duty of the railroad company, through its agents, to use at least ordinary care to avoid unnecessary injury to the animals when found in the way of a train on the road. The first and paramount duty of the agents of the company is a due regard for the safety of the persons and property in their charge on the train, for which they are held to a high degree of care; and, so far as consistent with this paramount duty, they are bound to the Duty of railroad company to stock. Primary duty of railroad company. uninclosed |