Hawker v. B. &. O. R. R.

Citations

• 15 W. Va. 628
• 1879 W. Va. LEXIS 50

Syllabus

<p>1 A declaration against a railroad company for negligently and wrongfully killing the plaintiff’s cattle on its track need not state the acts of omission or commission which constit uted' the negligence and wrong.</p> <p>2. If however the declaration avers that the injury to the cattle was caused ‘ ‘solely by the negligence and carelessness of the defendant, in this, that the said defendant seeing the plaintiff’s cattle on the track carelessly and wrongfully drove its locomotive on them,’’ the plaintiff cannot under such a declaration recover, if the evidence shows that the defendant’s servants were guilty of no wrong or carelessness after the cattle were seen on the railroad, though they may. have been guilty of such carelessness -before they were seen; and it would be error in the court to give an instruction) which would probably mislead the jury to believe that they might render a verdict for the plaintiff based on the defendant’s carelessness before the cattle were seen on the track.</p> <p>8. If the killing of the cattle on the railroad track were under the circumstances an inevitable accident, the railroad company is not responsible therefor, though the engineer used no precaution, such as blowing the whistle or doing any thing else. If no precaution could possibly under the circumstances have avoided the accident, the failure to use any precaution will not render the railroad company liable.</p> <p>4. The statement of the engineer in charge of the engine which killed the cattle, made an hour after the accident and several hundred yards from where it occurred, though made while he was on the engine, which was off the track, having been thrown from the track as one of the results of the accident, are not competent evidence for the plaintiff in a suit against the company to prove negligence in the company, as they are no part of the res gestse.</p> <p>5. In an action for damages tlie judgment should he for the amount assessed by the jury as damages and inter