crossing it is such negligence that he cannot recover for any injury 41 thereto. And if one allows his cattle so to run in the highway and thus come upon the track of the railway, and the company use all statutory and other reasonable precautions to avoid damage to them, the owner cannot recover for any such damage which is thus caused either wholly or in part by his own neglect, and he would also be liable for all injury to the company or to persons or property in their charge.41 And the omission of the company to sound the whistle or to ring the bell, in such cases, will not render them responsible for damage to cattle, unless it appear that such precautions would have prevented the injury.42

43

30. In actions for injury to cattle, if negligence is clearly proved on the part of the plaintiff, the company are not responsible unless guilty of gross negligence, which implies wilful injury.4 In such actions, founded upon the statute, the declaration should negative all the exceptions in the statute;44 but the plaintiff is not called upon to negative in proof the existence of any contract between himself and the company to maintain the fences along the line of the road against his land.44

31. As the statute does not require railway companies to fence their road within the limits of cities and villages, they are not responsible for damage to domestic animals caused by their trains within such corporate limits; and if the animal come upon their track within these limits, and is driven by the train beyond these limits and there killed, without any fault on the part of the company, it is immaterial whether the road was properly fenced at the point where the animal was killed, as it came upon the track at a point where the company where not obliged to fence.45 The mere killing of an animal by a railway company does not render them liable unless they have been guilty of negligence or the case comes within the statute.45

32. In cases where the company are required by statute to

41 Ch. Bur. & Quincy R. Co. v. Cauffman, 28 Ill. R. 513.

42 Illinois Central Railw. v. Phelps, 29 Ill. R. 447.

43 Illinois Central Railw. v. Goodwin, 30 Ill. R. 117.

44 Great Western Railw. v. Bacon, 30 Ill. R. 347.

45 Same v. Morthland, 30 Ill. R. 451; Galena & Chicago R. Co. v. Griffin, 31 Ill. R. 303. As to cases under positive statute, see Illinois Central Railw. Co. v. Swearingen, 33 Ill. R. 289.

ring the bell or sound the whistle, and that is omitted, if injury occur in consequence, they will be responsible, unless the party injured was himself guilty of negligence contributing to such result.46 It is here said that railway companies are responsible for injuries to persons or property, when wilfully done, or resulting from gross neglect of duty. The company to exonerate themselves must use all reasonable or statutory precautions to prevent the injury, and an omission to do so will render them responsible, if the omission produce or contribute to the injury, and the plaintiff was not himself in fault in any particular also contributing to the injury.46

46 Great Western R. Co. v. Geddis, 33 Ill. R. 304,

VOL. I.

31

* CHAPTER XIX.

SECTION I.

Upon whom rests the Obligation to maintain Fences.

1. By the English statute there is a separate | 16. Railway companies not responsible for in

8. Lessee of railway bound to keep up fences 25. Company not responsible for defect of and farm accommodations.

9. Company bound to fence land acquired 26. Railway not responsible in Indiana unby grant. less in fault. 10. Farm-crossings required wherever neces- 27. Company not liable where fence thrown down by others.

11. Where land-owner declines farm accom- 28. Where owner in fault he cannot recover

Rule of damages for not building fence, &c.

30. Land-owner must keep up bars.

13. Requisite proof where company liable for 31. Illustrations of the general rule.

§ 127. 1. By the Railway Clauses Consolidation Act1 it is made the duty of the railways in England, before they use land for any of their purposes, to fence it, and make convenient passes for the owner, which, if the parties do not agree, are to be determined by two magistrates. Under this statute it has been held, that the railway is not excused from making the necessary accommodations to keep up communication, to the owner, between different * parts of lands, intersected by the line of a railway, because these are not defined in the arbitrators' award of land damages. They are totally distinct things from the land damages. And where the jury, assessing land damages, also made a separate verdict for the expense of crossing the railway by a private way, it was considered that they exceeded their jurisdiction, and their proceedings were quashed.3

2

2. It is considered, in the English courts, that the expense of fences and crossings being imposed upon the railways by stattute, perpetually, and the mode of enforcing its performance pointed out in the statute, it has no connection with the land damages, but is to be enforced under the statute, and land damages are to be appraised, upon the basis of that duty resting upon the railway.

3. But where the statute makes no such provision, the expense of fencing and making crossings are important considerations

1 8 and 9 Vict. ch. 20, § 40. But in Kyle v. Auburn & Rochester Railw., 2 Barbour's Ch. 489, the court declined to interfere by injunction, to compel the building of a farm crossing, although the company assumed before the jury that such a crossing should be built by them, the plans showing no such crossing. It is said, under such circumstances, to be the duty of the land-owner to make necessary crossings, and that he is a trespasser for crossing the railway without them; and this should be so considered, in assessing damages for taking the land, and compensation made for such expense.

2 Skerratt v. The North Staffordshire Railw., 5 Railw. C. 166, per Lord Cottenham, Chancellor. See post, § 193, n. 3.

3 In re South Wales Railw. Co. v. Richards, 6 Railw. C. 197. So too where the land-owner stipulated with the promoters for certain watering-places and other conveniences, and to accept £ 5,000 for especial damage, and to withdraw thereupon opposition to the bill, it was held the duty to make suitable wateringplaces might be enforced by mandamus. Reg. v. York & N. Midland Railw., 3 Railw. C. 764; infra, § 128, 190, 191. The provision for fences, in the English statute, being a separate, independent, general provision, is enforced, altogether aside of the proceedings to assess land damages.

in estimating damages for the land taken, and this expense should undoubtedly be borne by the company, in addition to paying the value of the land, for otherwise the land is taken without an equivalent.

But the courts in most of the American States have resisted this view wherever it was practicable, more commonly upon some technical ground of presumption or inference, when, in fact, the omission of such an express provision in the charter or the general laws of the states was wholly the result of oversight in the legislatures. But it is refreshing to find some courts so far relieved from the trammels of mere technicality as not to feel compelled to sacrifice an obvious principle of justice to the shadow of a mere form. In a recent case in California we find an announcement upon this question which evidently comes from the right quarter, a sense of simple justice. It declares, if fences are rendered necessary for the protection of the crops of the land-owner by means of the construction of the railway through the land, the cost of such fences must be included in the compensation to be paid by the company, and this by necessary consequence must include a sum sufficient to indemnify the owner against the constantly accruing expenses of maintaining such fences. And the tendency of the more recent decisions is sensibly in this direction; and we might add, without offence, that in our judgment it is the only sensible direction the decisions could take, and we have always expected them to take such a direction in the end, however late it may come.5

4

4. And where in such circumstances the commissioners assessed the land damages, and a separate sum for building fences, and judgment was rendered in favor of the land-owner, for both sums, but the payment resisted by a proceeding in Chancery, on the part of the railway, and while this was still undecided, the company commenced running their engines, and the cattle of the occupier of the land strayed upon the track and were killed by the engines of the company, it was held, that the obligation

* Sacramento Valley Railw. v. Moffatt, 6 Cal. R. 74.

6

5 Evansville Railw. v. Fitzpatrick, 10 Ind. R. 120; Same v. Cochran, Id. 560; Same v. Stringer, 551.

6

Quimby v. Vermont Central Railw. Co., 23 Vt. R. 387; See also Vanderkar v. Rensselaer & Sara. Railw., 13 Barb. 390. But in the English Railway