tion of the courts, that if the accident occur upon a portion of the line not enclosed by a lawful fence, and not at a road or street crossing, whereby domestic animals are killed or injured, the company are responsible, at all events, and without reference to any question of negligence, either on their part or that of the owner of the animals. But at highway or street crossings the company are not responsible for any damage to such animals, unless it occur through some neglect or fault on their part.

27. In California 36 it seems to be considered that the custom of the country to suffer domestic animals to go at large on the commons will override the rule of the common law, obliging the owner to restrain his cattle within his enclosures, and that consequently no negligence is imputable to the owner on account of so suffering his animals to go at large. But railway companies are not held responsible for damage inflicted upon such animals so running at large unless it might have been avoided by ordinary care and prudence on the part of the company at the time.37

38

28. There seems to have been some very nice questions raised. in the courts of Illinois, for if it were not so some of the decisions would seem to partake largely of the character of incomprehensibility. For we find it gravely declared, in one case, that the law does not require any different words to be used in proving a case against a railway from those used in other cases. It is only necessary the mind should be convinced of the existence of the neces

36 Waters v. Moss, 12 Cal. 535. And in Alger v. Miss. & Mo. Railw. Co., 10 Iowa, 268, it was held that permitting cattle to run at large does not impute negligence to the owner, nor is he liable as a trespasser if they are found upon an unfenced railway. A railway company is bound to exercise ordinary care not to injure animals coming upon their track through defect of fence. After the road is fenced the company is only liable in such cases for gross neglect. And in McCall v. Chamberlain, 13 Wisc. 637, it is held that the duty upon railway companies to fence their roads is intended for the protection of the public generally. And until such fences are built the company is liable for all injuries to animals upon their track, without reference to any question of being rightfully in the adjoining land from whence they escaped upon the track. And the lessee of the company assumes all their responsibility.

There is no statute But when that is re

37 Richmond v. Sacramento Valley R. Co., 18 Cal. 351. here requiring railways to be fenced by the companies. quired, and the plaintiff alleges the duty was not performed, he must prove it as part of his case. Indianapolis, &c., R. Co. v. Wharton, 13 Ind. 509.

38 Ohio & Miss. R. Co. v. Irvin, 27 Ill. 178.

sary facts. And in the same case: The presumption is that the houses compose a village, and if an animal is killed beyond the houses the presumption is that it is killed beyond the village, and if the town extends beyond the houses the defendant should know the fact; and also: Every one is supposed to have some idea of the value of such property as is in general use, and it is not necessary to have a drover or butcher to prove the value of a cow. And in another case in this state it seems to have been claimed that the declaration against a railway for injuries to domestic animals must negative the possibility of any excuse on the part of the company. But the court hold that matters of excuse on the part of the company, as that the animals were killed at a farm crossing and that the road was properly fenced by them, must be shown by way of defence.29 But it was held in another case in that state, that the plaintiff, in making out his own cause of action, must negative by proof the existence of a public crossing where the killing occurred, and should show that the defendants were bound to fence at that point.40 And it was held in a later case, that it was negligence in a railway company to allow vegetation to grow upon its right of way, so that cattle may be concealed from view.41

42

29. If one allows stock to run in the highway near a railway * crossing it is such negligence that he cannot recover for any injury 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:42 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.48

30. In actions for injury to cattle, if negligence is clearly proved on the part of the plaintiff, the company are not responsible unless

39 Great Western Railw. v. Helm, 27 Ill. 198.
40 Ohio & Miss. R. Co. v. Taylor, 27 Ill. 207.

41 Bass v. Chicago, B. & Quincy R., 28 Ill. 9.

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

43 Illinois Central Railw. v. Phelps, 29 Ill. 447.

guilty of gross negligence, which implies wilful injury.44 In such actions, founded upon the statute, the declaration should negative all the exceptions in the statute; 45 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.45

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 were not obliged to fence.46 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.46

It

32. In cases where the company are required by statute to * 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. 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 useall 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.47

33. But in actions of tort against railway companies to recover damages for killing cattle upon their track, it is not competent to prove the company guilty of negligence in running their other trains, beside the one by which the cattle were killed.48

44 Illinois Central Railw. v. Goodwin, 30 Ill. 117.

45 Great Western Railw. v. Bacon, 30 Ill. 347.

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

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

49 Mississippi Central Railw. v. Miller, 40 Miss. 45.

*CHAPTER XIX.

FENCES.

SECTION I.

Upon whom rests the obligation to maintain fences.

4. And where that is assessed, and payment 18. It must appear the injury occurred by

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. It is considered, in the English courts, that the expense of fences and crossings being imposed upon the railways by statute, 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 rail

way.

3. But where the statute makes no such provision, the expense of fencing and making crossings are important considerations * in estimating damages for the land taken, and this expense should

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 for assessing land damages, 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.