Reports of Cases Argued and Determined in the Supreme Court of the State of Vermont Volume 38

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1867 edition. Excerpt: ...across said railroad from one part of the plaintifl"s farm to the other, to prevent their straying and strolling upon said railroad track, &c. At the September Term, 1864, PIERPOINT, J., presiding, the court pro forma adjudged the declaration insufiicient, and rendered judgment for the defendants,-to which the plaintiff excepted. S. H. bavis and E. J. Phelps, for the plaintiff. I. The first two counts in the declaration are unquestionably sufficient on general demurrer. They state such facts as constitute a complete right of action in the plaintiff, for the loss of the cattle. 1. For insutiiciency of fences. 2. For negligent management of the trains by which the cattle were killed. II. The third count is also suflicient. 1. The charter under which the defendants are acting, requires them to fence the road. Acts of 1850, p. 68. And the general railroad law requires them to maintain cattle guards at all fence crossings. C. S. p. 226, § 47; Nelson v. Vt. c' Can. R. R. 00., 26 Vt. 7l7. 2. For a breach of the duty thus imposed, they are liable to an action for any damages sustained thereby, upon common law principles, irrespective of the liability created by the statute in certain cases. This is a general rule, especially where the duty arises from a grant which is the source of emolument to the grantees. Sawyer v. R. & Bur. R. R. Co., 27 Vt. 370; Mayor of New York v. Furze, 3 Hill, 612; Bailey v. Mayor of New York, 3 Hill, 531; Hawley v. Lyme Begi's, Cowper, 87; Ilfayor of Lyme v. Henley, 3 B. & Ad. 77; Eastman v. Meredith, 36 N. H. 289; Whitcmnb v. Cen. R. R. C'o., 25 Vt. 68. 3. Damages of the character stated in this count may be recovered in such an action. 4. The averment in the declaration is, that both...