#### BAINS AYCOCK v. W. & W. R. ROAD CO.

Where it appeared that the train of a Rail Road was running at a greater than usual speed, upon a straight part of the road, in the day time, and that one of several cattle, that were feeding near, and crossing the road, was killed by the locomotive, it was Held to be negligence, that the speed of the train was not lessened, nor the usual mode of driving off stock by the blowing of a steam whistle resorted to.

*232Where, under a proceeding by a warrant, given by the 17th ch., sec. 7th, of the Rev. Code, upon an appeal to the Superior Court, a verdict was taken for the value of an animal killed on a railroad, it was Held that it was too late to take the objection in this 'Court, that the judgment of the justice of the peace was rendered without a valuation of the animal by freeholders.

Where, under a proceeding, given by chap. 17, sec. 7, of the Rev. Code, the warrant recited an injury by a railroad company, and commands that the body of a director, named, should be taken; after judgment against the company, and an appeal taken by it, it was Held untenable to say, that the suit was against the director and not against the corporation.

Action for negligence, brought originally before a justice of the peace of Wayne county, and came up by successive appeals to the Superior Court, where it was tried before Heath, J,, at the last Eall Terra.

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.

Yerdict for the plaintiff. Judgment and appeal by the defendants. . . ...

*233 J. 11. Bryan and Dortch, for plaintiff.

W. A. Wright and B. F. Moore, for defendants.

PeARSON, C. J.

We concur with his Honor upon the'qnestion 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 faee of the proceeding, that the eow 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.

Pee CueiaM, Judgment affirmed.