The action was brought to recover damages for the negligent killing of three oxen, belonging to plaintiff, by the defendant's engine, running on the W. N.C. Railroad.
The plaintiff testified that he was traveling on the public road, returning from a station on defendant's road, between 8 and 9 P. M., in July, 1888, and driving the oxen yoked up to a cart. At one point, about one hundred yards from the station, and just above a regular crossing of the road, the public road ran very close to the (411) railroad; that just above and below this point the public road diverges further from the railroad track; that the train was out of schedule time and came down the road, meeting the team of the plaintiff; that just as plaintiff reached this narrow point where the public road ran close by the side of the railroad he heard a slight blow from the engine, and almost immediately the engine came around a curve on the mountain, sixty or seventy yards off; that the blow was not the ordinary station blow nor sufficient to give warning, and that for the regular road crossing close by no blow was given; that if the regular station blow or the crossing blow had been given he could have stopped his oxen before he got to the place where the public road ran close by the track; that there was a large pile of wood behind which he could have stopped; that the blow for the crossing not having been given, in ignorance of the approaching train, he had advanced to the narrow point where on one side was the railroad and on the other the steep side of the mountain. The train suddenly coming around the curve, the noise and blazing headlight so frightened the oxen that in attempting to get out of the way three of them got on the track and were killed. Defendant company took charge of the beef and sold the hides. The oxen were worth to him $150, and on the market would have sold for $140 to $165. They were killed in July, 1888, and this suit was begun in August of same year.
The engineer testified that he blew the station blow, and as loud as usual, and at the usual place, and after he had blown it he felt his engine strike something; that he did not see the oxen at all; that he was at the usual place on the engine and on the lookout; that when he stopped at the station he went back and found that three oxen were killed; that he
was driving the engine at the usual speed and with care, but saw nothing on the track; that he did not blow for the crossing.
The defendant asked the court to charge: (412)
1. That as the oxen were not straying nor at large, but yoked to a cart and under charge of a driver, the statute raising a presumption of negligence in such cases does not apply.
2. That if the presumption of negligence did arise it was rebutted by the plaintiff's own evidence.
3. That there was no evidence to go to the jury; that there being no substantial conflict of the evidence the court should, on the evidence, direct a verdict to be entered for the defendant.
The court declined to so instruct the jury, and charged them, among other things, that it being admitted that defendant's engineer killed the cattle, and the suit having been brought within six months, the statute raised a presumption of negligence, and the burden was on the defendant to rebut that presumption; that at crossings it was the duty of the defendant's engineer to give notice by blowing his whistle, but that if the station whistle was blown in sufficient time and loud enough for the plaintiff to have stopped his team before approaching the crossing and the narrow spot leading to it, and the plaintiff did not heed the warning but pressed on, and his oxen, becoming frightened, got on the track and were killed, the presumption of negligence was rebutted, and the jury should find for the defendant; but if the station whistle was not blown in due time, and the plaintiff, without warning, drove his oxen to the narrow place where the engine coming around the curve, frightened his oxen so that they jumped on the track and were killed; or if the jury should find that if the regular whistle for the crossing had been blown, the plaintiff could and would have stopped before getting to the narrow place where the railroad was on one side and the mountain on the other, then the presumption of negligence would not be rebutted.
Verdict for plaintiff. Motion for new trial, assigning as error the refusal to charge as requested and the part of the charge above given. Judgment; appeal. (413)
Code, sec. 2326, provides that "when any cattle or other livestock shall be killed by the engines or cars running on any railroad it shall be primafacie evidence of negligence on the part of the company in any action for damages against said company: Provided, that no person shall be allowed the benefit of this section unless he shall bring his action within six months after his cause of action shall have accrued."
The court below was asked to instruct the jury that when the cattle killed were yoked to a cart and in charge of a driver the statute does not apply, and no presumption of negligence arises from the fact of the killing. The charge given in lieu, that the law presumed negligence upon the admitted facts, constitutes the grounds of the first exception.
Where words have a known technical meaning it must be adopted in construing a statute, but apart from that they must be interpreted according to their ordinary import, and where there is no ambiguity, but the meaning is clear and certain, not even the preamble or the caption of a statute can be called in aid for the purpose of construction. Adams v.Turrentine, 30 N.C. 147; Blue v. McDuffie, 44 N.C. 131.
The definition of cattle given by Worcester is "a collective name for domestic quadrupeds, including the bovine tribe, also horses, asses, mules,sheep, goats and swine, but especially applied to bulls, oxen, cows, and their young." Lest the term might be understood in its restricted sense as applying to the bovine species, the Legislature added the words (414) "other livestock," which is more comprehensive than the generic meaning, but the term "cattle" includes oxen, according to either definition. The courts must always assume that the Legislature is capable of expressing and does express its real intent, according to the ordinary sense of the words, and adopt it in construction when it is clear. Potter's Dwarris, 219; S. v. Massey, 103 N.C. 356. If there had been any purpose to limit the operation of the statute to cattle straying without protection and free from control, there was sufficient intelligence among our law-givers to restrict its application, or to except all livestock at the time hitched to a wagon or conveyance, or bridled and controlled by any person. If the courts now interpolate any such restrictive terms, and thereby change the plain and natural import of the law as it is written, it would be judicial legislation, which is the most dangerous and insidious mode of invading the province of a coordinate branch of the State government and usurping its powers, because there can be no redress for such a wrong, carelessly done under the color of the rightful authority to construe statutes, and in corrupt hands the manner of encroachment might become a method.
The late Chief Justice, in Doggett v. R. R., 81 N.C. 459
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The action was brought to recover damages for the negligent killing of three oxen, belonging to plaintiff, by the defendant's engine, running on the W. N.C. Railroad.
The plaintiff testified that he was traveling on the public road, returning from a station on defendant's road, between 8 and 9 P. M., in July, 1888, and driving the oxen yoked up to a cart. At one point, about one hundred yards from the station, and just above a regular crossing of the road, the public road ran very close to the (411) railroad; that just above and below this point the public road diverges further from the railroad track; that the train was out of schedule time and came down the road, meeting the team of the plaintiff; that just as plaintiff reached this narrow point where the public road ran close by the side of the railroad he heard a slight blow from the engine, and almost immediately the engine came around a curve on the mountain, sixty or seventy yards off; that the blow was not the ordinary station blow nor sufficient to give warning, and that for the regular road crossing close by no blow was given; that if the regular station blow or the crossing blow had been given he could have stopped his oxen before he got to the place where the public road ran close by the track; that there was a large pile of wood behind which he could have stopped; that the blow for the crossing not having been given, in ignorance of the approaching train, he had advanced to the narrow point where on one side was the railroad and on the other the steep side of the mountain. The train suddenly coming around the curve, the noise and blazing headlight so frightened the oxen that in attempting to get out of the way three of them got on the track and were killed. Defendant company took charge of the beef and sold the hides. The oxen were worth to him $150, and on the market would have sold for $140 to $165. They were killed in July, 1888, and this suit was begun in August of same year.
The engineer testified that he blew the station blow, and as loud as usual, and at the usual place, and after he had blown it he felt his engine strike something; that he did not see the oxen at all; that he was at the usual place on the engine and on the lookout; that when he stopped at the station he went back and found that three oxen were killed; that he
was driving the engine at the usual speed and with care, but saw nothing on the track; that he did not blow for the crossing.
The defendant asked the court to charge: (412)
1. That as the oxen were not straying nor at large, but yoked to a cart and under charge of a driver, the statute raising a presumption of negligence in such cases does not apply.
2. That if the presumption of negligence did arise it was rebutted by the plaintiff's own evidence.
3. That there was no evidence to go to the jury; that there being no substantial conflict of the evidence the court should, on the evidence, direct a verdict to be entered for the defendant.
The court declined to so instruct the jury, and charged them, among other things, that it being admitted that defendant's engineer killed the cattle, and the suit having been brought within six months, the statute raised a presumption of negligence, and the burden was on the defendant to rebut that presumption; that at crossings it was the duty of the defendant's engineer to give notice by blowing his whistle, but that if the station whistle was blown in sufficient time and loud enough for the plaintiff to have stopped his team before approaching the crossing and the narrow spot leading to it, and the plaintiff did not heed the warning but pressed on, and his oxen, becoming frightened, got on the track and were killed, the presumption of negligence was rebutted, and the jury should find for the defendant; but if the station whistle was not blown in due time, and the plaintiff, without warning, drove his oxen to the narrow place where the engine coming around the curve, frightened his oxen so that they jumped on the track and were killed; or if the jury should find that if the regular whistle for the crossing had been blown, the plaintiff could and would have stopped before getting to the narrow place where the railroad was on one side and the mountain on the other, then the presumption of negligence would not be rebutted.
Verdict for plaintiff. Motion for new trial, assigning as error the refusal to charge as requested and the part of the charge above given. Judgment; appeal. (413)
Code, sec. 2326, provides that "when any cattle or other livestock shall be killed by the engines or cars running on any railroad it shall be primafacie evidence of negligence on the part of the company in any action for damages against said company: Provided, that no person shall be allowed the benefit of this section unless he shall bring his action within six months after his cause of action shall have accrued."
The court below was asked to instruct the jury that when the cattle killed were yoked to a cart and in charge of a driver the statute does not apply, and no presumption of negligence arises from the fact of the killing. The charge given in lieu, that the law presumed negligence upon the admitted facts, constitutes the grounds of the first exception.
Where words have a known technical meaning it must be adopted in construing a statute, but apart from that they must be interpreted according to their ordinary import, and where there is no ambiguity, but the meaning is clear and certain, not even the preamble or the caption of a statute can be called in aid for the purpose of construction. Adams v.Turrentine, 30 N.C. 147; Blue v. McDuffie, 44 N.C. 131.
The definition of cattle given by Worcester is "a collective name for domestic quadrupeds, including the bovine tribe, also horses, asses, mules,sheep, goats and swine, but especially applied to bulls, oxen, cows, and their young." Lest the term might be understood in its restricted sense as applying to the bovine species, the Legislature added the words (414) "other livestock," which is more comprehensive than the generic meaning, but the term "cattle" includes oxen, according to either definition. The courts must always assume that the Legislature is capable of expressing and does express its real intent, according to the ordinary sense of the words, and adopt it in construction when it is clear. Potter's Dwarris, 219; S. v. Massey, 103 N.C. 356. If there had been any purpose to limit the operation of the statute to cattle straying without protection and free from control, there was sufficient intelligence among our law-givers to restrict its application, or to except all livestock at the time hitched to a wagon or conveyance, or bridled and controlled by any person. If the courts now interpolate any such restrictive terms, and thereby change the plain and natural import of the law as it is written, it would be judicial legislation, which is the most dangerous and insidious mode of invading the province of a coordinate branch of the State government and usurping its powers, because there can be no redress for such a wrong, carelessly done under the color of the rightful authority to construe statutes, and in corrupt hands the manner of encroachment might become a method.
The late Chief Justice, in Doggett v. R. R., 81 N.C. 459, enumerated among the benefits of the law the protection it afforded to owners of livestock killed, when there was no witness who knew the circumstances attending it; but that the court did not intend to limit its application to cattle or livestock straying free from control, and to cases where there were no witnesses to the transaction, appears clearly from the unmistakable language used in stating the final conclusion reached. "The force of the presumption only applies when the facts are not known, or when, from thetestimony, they are uncertain."
In the case at bar the important fact, upon which depended the question of negligence, was in dispute. The plaintiff testified that the engineer did not give the ordinary station blow at the usual place, while the engineer testified that he did, and therefore there was (415) uncertainty about the facts, and the presumption, according to the doctrine laid down in that case, did not lose its "force." His Honor left the jury to determine whether the testimony for the defendant was to be believed rather than that offered for plaintiff as to the question of negligence, and was sufficient to overcome the artificial weight given to proof of the fact of killing by the statute. After approving, generally, Doggett v. R.R., the court, in Durham v. R. R., 82 N.C. 354, cite the very words we have already quoted from the former case, showing a purpose to still allow full "force" to the presumption, where the facts are, by reason of conflicting testimony, rendered uncertain. See, also, Roberts v. R. R.,88 N.C. 560; Wilson v. R. R., 90 N.C. 69; Horner v. R. R., 100 N.C. 230;Carlton v. R. R., ante, p. 365.
The train passed at an unusual hour along a narrow canyon where the wagon road ran, at some points, close beside defendant's track and at others diverged a little distance from it. The plaintiff had passed the station and then gone over a crossing near which the wagon road, for a very short distance, was located in the narrow space between the mountain and the track, when he heard a slight blow from the engine, and almost immediately it passed around a curve on the mountain only sixty or seventy yards ahead of him, and the noise and blazing headlight so frightened the oxen that in attempting to get out of the way three of them jumped upon the track and were killed. This occurred less than six months before the action was brought.
The plaintiff further testified that if the regular station blow or the crossing blow had been given at the usual point he could have stopped his oxen behind a large pile of wood before he reached the narrow place, and could have saved them, but that, because the blow was not given, he had advanced to the place where on the one side was the steep (416) mountain and on the other the track of the railroad company. The engineer testified that he blew the station blow, and as loud as usual, and at the usual place. On the decision of the issue of fact thus raised the whole controversy depends. Troy v. R. R., 99 N.C. 298.
When a person in charge of a wagon and team approaches a public crossing it is his duty to look and listen and take every prudent precaution to avoid a collision, even though the approach be made at an hour when no regular train is expected to pass. The same degree of care and caution should be exercised by one who is about to drive into such a narrow and dangerous pass as is described by the witnesses, if he would avoid the responsibility for any injury that may result from his
carelessness. But it is the duty of the engineer to blow the whistle or ring the bell at a reasonable distance from such a crossing as was described by the witnesses in order to give warning to travelers on the ordinary highway running across and near it, and enable them to guard against danger. It is always required of an engineer, if he would relieve the company from liability for negligence, to blow the whistle, as a warning, at a reasonable distance from the crossing of a public highway or a station which his train is approaching, and is doubly important where the track winds around curves, between a mountain and river, by the side of a public road; and if travelers on such highway are subjected to loss by injury to their livestock at a crossing or narrow pass like that described by the witnesses, in consequence of his failure to give such warning at they had a right to expect, the company is liable in damages for such negligence. 2 Wood R. L., sec. 323; Kelly v. R. R., 29 Minn. 1;R. R. v. Garty, 79 Ky. 442; Penn Co. v. Krick, 47 Ind. 368; R. R. v.Jundt, 3 Am. and En. R. Cases, 502; Strong v. R. R., 61 Cal. 326; Hoar v. R. R., 47 Mich. 401; Troy v. R. R., supra.
(417) We do not see the force of the objection that the oxen were actually injured, not at a crossing, but at a narrow place where the public highway is jammed between the mountain and the railroad track. In all the cases cited, supra, the doctrine is laid down (even in the absence of a statute) that it is negligence to omit to give a signal by blowing the whistle or ringing a bell in reasonable time, when a train is approaching a station, and in one of them (R. R. v. Jundt, supra) it was held that a railroad company was liable where, in consequence of failing to have a flagman at a city crossing, as a notice to persons driving along a street parallel with the track that a train was approaching, two horses being driven by the plaintiff, a female, were met by the train just before
reaching the crossing and frightened so that they ran away and injured her. The failure to have a flagman at the crossing was held evidence of negligence, because the plaintiff had been accustomed to cross there and naturally expected, and had a right to expect, the usual warning of danger. In our case the plaintiff knew the usual place for blowing the signal, and testifies that he was misled by the neglect of the engineer to give the signal at that point. Besides, we have forborne to decide whether the same reasons exist for warning travelers driving in ordinary vehicles in sufficient time to allow them to escape from a narrow pass like that described by witnesses that have induced the courts to hold that in the exercise of ordinary care timely notice must be given that a train is nearing a crossing. The importance of giving signals in such cases becomes greater when any peculiar circumstances in a given locality enhance the danger of omitting to do so. Penn Co. v. Krick, supra.
The case of R. R. v. Feathers, 10 Lea. (Tenn.), was one in which the court gave a construction to a statute requiring a signal to be given by engineers one-fourth of a mile from crossings; that it was enacted especially to prevent injuries at the crossings. The case at bar (418) rests upon the broader principle and reasoning adopted in R. R.v. Jundt, that some notice must be given of the approach of a train when travelers on the highway are put in jeopardy at crossings, and railroad companies must be held liable for damages for failure to give the usual warning, whereby one aware of the custom is misled so that he subjects himself or his livestock to peril and is damaged in person or property.
The material question is not where the injury was inflicted, but what was its proximate cause, and if the plaintiff, relying upon the custom of the company to give a particular signal at a certain time, placed himself in a dangerous position and suffered injury, the company is liable for negligence.
The circumstances were such as to suggest caution, both to the plaintiff and the engineer, when the train passed suddenly around a sharp curve along a projecting mountain. We think that the jury have determined, in the manner prescribed by law, which one of them failed to exercise ordinary care. If the plaintiff could have taken refuge behind a woodpile, where the highway had diverged some distance from the track, and thus have saved his team harmless but for the failure of the engineer to blow at the usual place, the negligence of the company was the proximate cause of the injury, and the plaintiff was entitled to recover the value of the oxen killed. If he blew the whistle at the usual place, and did not wait till the engine was either sixty or seventy yards of plaintiff, the injury was not due to defendant's negligence. His Honor left the jury to find from the testimony what was the truth as to the time of the blowing of the whistle, and thus to settle the controversy.
Affirmed.