The warrant recited that the plaintiff complained against the railroad company for negligently running their cars over a cow and killing it. The command was to take the body of William K. Lane, a director of the said company. The justice of the peace, before whom it was returned, gave judgment for the value of the property, without the intervention of freeholders, against the said company, from which it appealed in both instances, and no judgment was taken against William K. Lane. The evidence was, that about 3 o'clock in the day, on which the alleged injury was committed, the plaintiff's cattle were feeding on each side of the railroad, and near to it; that some were crossing the road at the time the train came along; that the road was here straight, and cattle could be seen on it for half a mile; that the train was later than usual, and running at a greater than ordinary speed; that one of the cattle was on the track and was killed. It was further in evidence, that no whistle was blown to drive the cow in question from the road, which was the usual mode of driving off cattle. His Honor was of opinion that there was negligence on the part of the plaintiff's agents. Defendant excepted.
Verdict for the plaintiff. Judgment and appeal by the defendants. *Page 233 We concur with his Honor upon the question of negligence. It was proven that to "blow the whistle" is the usual mode of driving stock from the road. In this instance, one of the cattle was on the tract, and it was negligence not to use the ordinary means of getting it off.
Extra speed of itself, may not constitute negligence, but where cattle are near the road, on each side, and some crossing, a due regard for human life and property, requires that the speed should be reduced, so as to prepare for an emergency, and be able to stop, if necessary, until the danger is passed; the neglect of that necessary precaution in this instance, is probably attributable to the fact, that being "behind time," induced the determination to rush on and risk the consequences.
The objection taken in this Court, that it does not appear on the face of the proceeding, that the cow was valued by freeholders, is not tenable, because the verdict, in the Superior Court, fixed the amount of damages and cured the defect.
So the objection, that the warrant is "to take body of Lane, a director,c.," is untenable, because the judgment was entered against the company, and the appeal was taken by it, showing that it was the defendant, and not Mr. Lane, which distinguishes this case from Insurance Co. v. Hicks, 3 Jones' Rep. 58.
PER CURIAM, Judgment affirmed.