County Express

Vol. 2, No. 59 ] SATURDAY, 15th., FEBRUARY, 1868 [ Price 1d.

(Before W.Mills Esq. Deputy Judge)

This court sat on Tuesday for the disposal of the following special cases which had been adjourned from the last sitting.

Smith v The Great Western Railway Company.

This was a special jury case. Some months ago the plaintiff sued the defendants for the value of a horse which had been killed by falling into a railway cutting. The case was decided in favour of the plaintiff, but on application of the defendants his Honour agreed that the case should be re-argued. The case was accordingly gone into again on Tuesday. Mr.Motteram (of the Oxford circuit) appeared for the plaintiff, and Mr.Young (also of the Oxford circuit) for the defendants. Mr.Motteram said in that the case Nathaniel Smith was plaintiff, and the Great Western Railway Company the defendants, and the action was brought to recover the sum of £50 under the circumstances which he would state. The Great Western Railway as many of them were aware, ran through the farm called Treherne, at Pedmore. Mr.Smith the plaintiff, resided there, and occupied a farm. The railway by the farm receded in a cutting thirty feet deep by the side of the plaintiffs farm. Of course it was the duty - a duty enjoined by Act of Parliament - of the company to make secure fences, so as to prevent the cattle and horses of the owner of the field from suffering. Before the railway was made there was no danger. But the railway was made, and it was an advantage to the company to make their line at that place in a deep cutting. The cutting was 30 feet deep, and it was by means of the railway that the defendant's cattle were in danger, which before the establishment of the railway he was not subject too. On the 7th. of July last the plaintiff had some horses in a field adjoining the railway, which was fenced off by posts and rails. There were four or five horses in the field, and one of them - the one in dispute - had gone into a barley field shortly before, and it had been "hobbled", or blindfolded. In that state they would find, from some cause or other, the horse tumbled against the posts, fell down the embankment thirty feet, and was killed. The railway company said - and they had a right to say so if it was true - that the fence was sufficient for the purpose of keeping cattle from the railway. But the fact was, the fence was broken by the horse. The principal question would be was the fence strong enough for the purpose? It was not strong enough to prevent the horse being killed. Then with respect to that particular horse, he would show them beyond all question that the fence adjoining the field was in a very bad state indeed; but since the accident it had been repaired in forty or fifty different places. Mr.Young said the horse went through a particular part, and the question was whether that part was sufficient to prevent it going through. Mr.Motteram said it was his duty to bring the facts before the jury, that they might judge between the parties, and whether the plaintiff had a right to recover damage for the injury which he had sustained. But the fence was broken, and the horse was killed. After the accident the railway company had repaired the fence in forty or fifty different places, and had repaired and strengthened it. His friend said that was not the exact part, but he would ask the jury to form some opinion as to that particular part, as to whether the railway company kept the fence sufficiently strong to prevent accidents under ordinary circumstances. He did not think it need be a long case because the value of the horse was not in dispute. If his Honour found for the plaintiff, they had agreed that the damage should be £40, the value of the horse. He very much doubted whether under any circumstances the post and rails were a sufficient fence near a cutting thirty feet deep, as the posts were simply driven into the ground. He then called Nathaniel Smith the plaintiff. He said he was a farmer, and occupied Treherne Farm, at Pedmore. The defendants railway ran at the bottom of one of his fields in a cutting some thirty feet deep. There was a fence between his field and the railway; it was a post and rail fence. The fence was generally in a very bad state. The posts and rails were rotten, and a horse leaning against them would break them. Had sent a man named Griffin to make a complaint to the railway company of the state of the fence. That was in June last. Was in the habit of keeping his cattle in the field near the railway. Had to remove the cattle out of the field owing to the rails being broken. On the 7th. of July, witness had some cattle in the field, and amongst them was a grey horse. Saw the horse in the field on that day. He was "hobbled", and could not see. In the evening he was in the fold yard about four hundred yards from the field. He saw the grey horse in the field. The horse went down to the bottom of the field, fell against the rail, which broke, and the horse fell into a ditch. The horse then got up on the embankment and fell from there onto the line and broke its back. The horse went down to the fence at a quiet pace. Had complained to Chance, the "ganger" many a time about the state of the fence. The company had repaired the fence since the accident. They had repaired the fence near the spot were the horse fell. The fence was not strong enough to keep in the horses since it was repaired. By Mr.Young: Could have pulled the rails out before the 7th. of July, the day of the accident. The fence was very bad before the accident. If the horse had rubbed itself against the fence it would have broken. The horse was not addicted to straying. William Smith, son of the plaintiff, said on the evening in question, from what his father told him, he went after the time. He saw him on the bank, but before he could get to the horse, it fell over into the railway and broke its back. The horse was between eight and nine years old. The fencing at the bottom of the field was rotten. By Mr.Young: Could not say the posts were actually rotten, but it was owing to their unsoundness that they broke. Did not see the horse go through the rails; only saw him on the bank before he fell over. By the Judge; When he went on to the railway he found that the horse had broken its back. The hobbles were still on the horse and he could not see. Edward Hill was the next witness called: Had several times complained of the state of the fence. By Mr.Young: After the horse was "hobbled" he stopped about half an hour to see if the horse was frightened, but he was quiet. Sydney Clark, a young man, said he was in the neighbourhood of the place on Sunday evening, the 7th. of July. He saw the horse about five or ten minutes before it tumbled onto the line. The horse was grazing. Edward Smith, farmer, brother of the plaintiff, said the fencing was in a very rotten state, and had been put up about 28 years. By Mr.Young: Examined the place where the horse fell through. The posts appeared to be rotten. Frank Hill also spoke to the weak state of the fence. Henry Padget, farmer, was also of the opinion that the fence was in a rotten condition. In answer to Mr.Motteram, he said the "life" of a post was as long as it would stand. (Laughter.) James Millinchip also spoke to the bad condition of the fence. James Griffin deposed to having told the railway ganger to repair the fence about three weeks before the accident. Benjamin Wooldridge, land surveyor, Stourbridge, said he had examined the place for the first time the Saturday before the last court day. Some parts of the fence had been repaired. In his opinion the fence was not strong enough to resist a horse rubbing against it. The witness here described the manner in which the fence was constructed. In his opinion the fence was insufficient. By Mr.Young: The railway company where now putting up a good fence. The old fence was about twenty years old. This being the whole of the evidence for the plaintiff, Mr.Young said he would submit from the evidence that the plaintiff should be non-suited. His Honour said it was for the jury to consider whether the fence was sufficient according to Act of Parliament. He would direct the jury that the defendants were bound to keep up the fencing where horses were placed in a field. Mr.Young then addressed the jury at considerable length on the behalf of the defendants, and said it was for them to consider whether the plaintiff lost his horse through the neglect of the defendants. He contended that the horse had been killed through it being "hobbled". He then called John Chapman, a nailer. He said he was in the neighbourhood on the day in which the horse was killed. He saw the horse galloping about the field, and on coming to the bottom it dashed against the fence, broke it, and fell into the ditch. He struggled out of the ditch and fell over onto the railway. When the witness went down to where the horse was lying young Mr.Smith was taking the "hobble" off. Joseph Chapman, brother to the previous witness, was called, and corroborated the evidence given by his brother. (Both the witnesses were of the opinion that the accident occurred between three and four o'clock as near as they could tell, while the complainant and his son said it took place at eight o'clock at night). Sarah Ann Watkins was next called. Was walking in the neighbourhood of the place when the accident happened. It was about seven o'clock at night. The grey horse galloped down the field, sprang over the rails, and fell into the cutting. It was blindfold. By Mr.Motteram: Saw the two Chapmans (the previous witnesses) near the stile at the time the horse fell into the cutting. Wm Henry Dancer, roll-turner, said he was in the company with the last witness on the evening in question, and saw the horse fall into the cutting. He admitted that Watkins, the father of the previous witness, had seen him, and said he must say the same as his daughter (Miss Watkins). Edward Pardoe and James Chance were also examined. The latter said he was a ganger on the Great Western. On the evening of the 7th. July about eight o'clock, he heard that the horse had been killed. The rails and posts where the accident occurred were sound and good. John Curley was also examined. Several of the plaintiffs witnesses were recalled by Mr.Motteram and examined as to what the Chapmans had told them with respect to the accident. Mr.Wooldridge was also recalled and said the Chapmans could not see the place where the accident occurred from the stile. This being the whole evidence, Mr.Motteram addressed the jury on the behalf of the plaintiff. He said the question for the jury was this- whether they considered the fence sufficient. After the termination of the learned gentleman's address, the Judge carefully summed up, and the jury, after a brief consultation, returned a verdict for the sum claimed, £40.