Opinion
June Term, 1842.
1. If, in the prosecution of a lawful employment a pure accident occurs, no action can be supported for an injury arising therefrom. It is otherwise where any blame or carelessness is attributable.
2. Where the engine running on the railroad of defendant killed a steer under such circumstances as showed that the killing was accidental. Held, that the company were not responsible for the loss.
3. The statute (Rev. Stat., ch. 17, sec. 7) giving jurisdiction to a magistrate in the case of stock killed on a railroad does not alter the rules of the common law in relation to such injuries.
APPEAL from Dick., J., at Fall Term, 1841, of NORTHAMPTION.
No counsel for plaintiff.
Whitaker for defendants.
This action commenced by a warrant under the act of Assembly (Rev. Stat., ch. 17, sec. 7) to recover damages for killing the plaintiff's steer, and was brought up by successive appeals to the Superior Court. The killing of the steer by the defendants' engine, while in their employment on their railroad, was admitted. It was proved by one Culpepper, a witness for the defendants, that on the night the injury occurred to a steer (which this deponent afterwards understood was the steer of the plaintiff) he was in charge as engineer of one of the engines belonging to the Portsmouth and Roanoke Railroad Company. It left Weldon about 8 o'clock at night, bound to Portsmouth. The night was extremely dark and very rainy, with occasional lightning. When about 2 1/2 miles from Gary's, by the aid of a flash of lighting he discovered some cattle on the side of the road, and, being apprehensive that they might attempt to cross the road, he immediately reversed the steam and ordered a boy, who was with him on the engine, to get upon the brake, which he did forthwith. In an instant, it was discovered that there was a steer, (325) or some animal of that kind, on the track, and in the attitude of rising. He was discovered too late, however, to stop the engine, and, as it passed over him, the engine was thrown off the road and the steer killed. This witness deposed that every effort was used to prevent any accident whatever, but that, owing to the darkness of the night and the position of the steer, it was impossible to see him in time to prevent his being run over; that the injury was purely accidental, and without any fault on the part of any of the agents of the company.
The judge instructed the jury that the killing of the steer being admitted, the plaintiff was entitled to recover, notwithstanding the testimony of Culpepper; for, taking all he said to be true, yet it did not deprive the plaintiff of his right of recovery. The jury found a verdict for the plaintiff, and a new trial having been moved for and refused, and judgment rendered pursuant to the verdict, the defendant appealed.
When the Legislature (Rev. Stat., ch. 17, sec. 7) gave jurisdiction to a magistrate in cases of this description it did not intend to alter the rules of the common law in relation to such inquiries. Culpepper (whose deposition is made a part of the case) says that the injury was purely an accident, and without any fault on the part of any of the agents of the company; and the facts and circumstances deposed to by him show that it was purely an accident that the animal was killed, and without any blame on the part of the agents. The judge, however, was of opinion that the plaintiff was entitled to recover, notwithstanding. We think differently. A merely accidentally involuntary trespass may be justified. Beckwith v. Shoredike, 4 Burr., 2092. If in the prosecution of a lawful act an accident, which is purely so, arises, no action (326) can be supported for an injury arising therefrom. Davis v. Saunders, 2 Chitty, 639; Goodman v. Taylor, 5 Car. and P., 410. But it is otherwise where any blame or carelessness is imputable, though a person be innocent of any intention to injure. Wakeman v. Robertson, 1 Bing., 213; Wooley v. Scovill, 3 Man. and Ryland, 105.
PER CURIAM. New trial.