Carper v. Receivers of N. & W. R. Co. (N. S.) circuit court of the United States for the Western District of Virginia. The declaration contained threecounts, the first alleging that Frederick J. Kimball and Henry Fink, receivers of the Norfolk & Western Railroad Company, were, as such, operating said railroad at the time of the grievances therein set forth, and that one Edmund Newsom was at said time employed by them as a brakeman on a freight train then run by them over the road, and that while so employed, in the year 1895, through the gross negligence of the defendants, he was mangled, wounded, and injured, from which he instantly died. The negligence alleged in said count was, in substance, as follows: That said railway, in passing through the county of Wythe, in the state of Virginia, ran through the inclosed lands of one J. P. Sheffey, then leased to one George L. Carter, and that. it was the duty of said Norfolk & Western Railroad Company, under the requirements of sections 1258 and 1259 of the Code of Virginia, to erect along on both sides of its roadbed, at the point where the grievances complained of were committed, on said Sheffey land, lawful fences, and keep the same in good order, but that the defendants failed in their said duty, and neglected to erect and keep in repair such fences; and also that they allowed said Carter to erect and use a cattle pen on their said roadbed for the purpose of loading cattle upon the cars, and shipping them over said railroad; and that they negligently allowed him to construct such pen in a faulty manner, and of inferior material, whereby it was entirely insufficient to restrain and keep within its bounds the large and strong cattle that Carter was in the habit of placing therein; and that on the night of in 1895, a number of such cattle escaped out of said pen into the inclosed lands. mentioned, and, as there were no fences as required by law, such cattle strayed upon the tracks of the railroad, and the freight train upon which Newsom was employed as such brakeman ran into the cattle, and was derailed, the cars being broken, and the said intestate so injured and killed. The second count alleges the R. Cas. Carper v. Receivers of N. & W. R. Co. faulty construction of said cattle pen on said roadbed by Carter with the assent and knowledge of the defendants, the placing of cattle therein by Carter with like assent and knowledge on the part of defendants, the employment of the said Newsom, the escape of the cattle, and the derailment of the train which caused the death of the intestate. The third count is the same as the second, with the additional allegations that the defendants failed to erect a good and sufficient cattle pen in which to confine Carter's cattle; and that they failed to instruct their servants in charge of said train to run it at a moderate rate of speed by said insufficient pen, so as to avoid frightening said cattle, and causing them to escape therefrom; and that the train was carelessly and negligently run, so that it could not be stopped from running into said cattle after they had so broken out of said pen; and that it was negligence in defendants not to have a watchman stationed at such point whereby the servants on said train could have been duly notified of said danger; and that the deceased relying upon defendants to do their duty in giving all proper orders as to the running of their trains, entered their employment as such brakeman, and, while so employed, such train was so thrown from the track by the negligence of the defendants, to the plaintiff's damage as before mentioned. There was no demurrer to the declaration, but the plea of not guilty was filed, on which issue was joined. The case was tried by a jury, which rendered a verdict for the defendants. The plaintiff moved the court to set the verdict aside, as contrary to law and the evidence; but the court overthe motion, and entered judgment for the defendants, to which the writ of error we are now considering was sued out. On the trial of the cause, to the rulings of the court below the plaintiff asked for and had certified several separate bills of exceptions, on which the assignments of error relied upon are based. It is insisted that the court below erred in giving the following instructions, asked for by the defendants, ruled viz.: 7 (N. s.) A. & E. R. Cas.-7 Carper v. Receivers of N. & W. R. Co. (N. S.) "No. 2. If the jury find from the evidence that the cattle pen in question was not constructed by defendants; that the same was constructed by the occupant of the farm in question; that it was intended to be erected upon the lands adjoining defendant's right of way; and that, by mistake, the inclosure of said pen extended for a short distance on the right of way of defendants,then the defendants were not responsible for any fault or negligence in the construction and use of said pen, and there can be no recovery in this action upon the ground of the improper or negligent construction of said cattle pen. "No. 3. The court instructs the jury that the duty imposed by the statute upon the railroad companies to fence their railroad is a duty only to the public, and to the owner of the cattle of the inclosed lots of lands through which the railroad runs, and an employee of the company receiving a personal injury in an accident consequent upon a failure to maintain proper fences cannot recover damages of the railroad company for such injury, without showing negligence other than the failure to fence; and unless the jury should believe from the evidence that the plaintiff in this case has shown that his intestate, Edmund Newsom, was killed through some other negligent act of the defendants, their agents or servants, than the neglect to fence their roadbed at this point, they will find for the defendants, although they may believe from the evidence that the defendants were bound under the statute to fence their roadbed at this point, and had failed and neglected to fence the same. "No. 4. The court instructs the jury that all evidence bearing upon the question as to inclosure of the lands through which the defendants' line ran is irrelevant to the case under consideration, in view of the instructions given by the court on that question.' Considering the assignments of error in the order of the instructions on which they are founded, we have R. Cas. Carper v. Receivers of N. & W. R. Co. Cattle Pen Near Right of Way. first the one relating to the cattle pen built by George L. Carter, on the property under his control, adjoining the right of way of the railroad company, given as instruction No. 2. It appears from the evidence before the jury at the time the instruction complained of was given (which we must consider in order to properly pass upon the question of error insisted upon) that Carter, who had the land on which the pen was located in his possession, under a lease made by the owner thereof, in constructing the fence which formed the pen, by mistake built it for a short distance at one corner over on the land owned by the railroad company, without the knowledge of any of the agents or servants of said company. That it was unintentionally so located and built was, we think, clearly shown by the evidence; and that neither Carter himself, nor any employee of the company, was aware that it had been so constructed, until after the accident which resulted in the death of the plaintiff's intestate, when a survey then made disclosed it, is, we think, equally clear. If there was negligence in this particular, it was on the part of Carter, and the effort to hold the railroad company responsible for the same was, in the light of the testimony, under the proper instructions of the court, found to be without merit by the jury, a circumstance that we now allude to only for the purpose of showing the character of the testimony before the jury at the time the court gave the instructions now being considered. The plaintiff in error insists that it was the duty of the railroad company to provide and maintain a safe roadway, and a safe place to work at, as well as safe Killing of Employee instruments to work with; that in permitting Carter to use a defective pen, and by hauling cattle thereto, and allowing the same to be unloaded therein, the company failed in its duty to its employee, and rendered itself liable for the damages caused thereby. This is, we think, an entire misconception of the wellestablished principle referred to, of the duty of the Safe Place. Carper v. Receivers of N. & W. R. Co. (N. S.) employer to the employed, in the particulars mentioned; and the endeavor to apply the same to this case, in the absence of proof that the roadbed was defective, the cars unsafe, or the train unskillfully or negligently run, is, though ingeniously presented, absolutely untenable; and to hold these defendants liable for Carter's negligence, if negligent he was, would be to ignore all the authorities, and disregard the undisputed facts, as developed on the trial of this cause in the court below. The instruction given was carefully drawn, and left all questions concerning the negligence of the defendants, so far as the roadbed, cars, train, and management of the same were concerned, free for the determination of the jury, and withdrew from it simply the matter of the improper or negligent construction of the cattle pen, provided the jury found that the defendants did not construct it. The instruction asked for by the plaintiff below on this point did not correctly state the law of the case, and was properly refused. The instruction given was, under the facts shown, entirely proper, and the assignment of error relating thereto is without merit. Failure to Fence -Liability of Com The assignments of error next to be disposed of refer to the instruction given by the court below, at the request of the defendants, relating to juries to Employee the sections of the Code of Virginia concerning the duty imposed upon railroad companies to erect fences along certain portions. of their road bed. The legislation bearing on that question is found in chapter 52, Code Va. 1887, which is here quoted in full, as follows: pany. "Chapter LII. "Telegraph Offices to be Established by Railroad Companies; of Fencing Railroads. "Sec. 1257. Railroad Companies to Establish and Maintain Telegraph Offices at Depots; Duties of Operators and Train Dispatchers.—Every railroad company doing business in this state shall establish and maintain along its line, at depots or stations not more |