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caped in the night-time from his pasture upon the railway track on account of the want of proper fence along the line of the road, and was found in the morning a mile from the plaintiff's land in a rocky pasture seriously injured in the leg; and there was some evidence tending to show that the injury was received in the pasture where he was found. The court charged the jury that if they were satisfied there was a clear connection between the escape of the horse and the injury received, the plaintiff was entitled to recover. This was held erroneous in not requiring the jury to discriminate between a direct and a remote connection between the neglect of the company and the damage to the plaintiff's horse, as he could only recover upon the former ground.

18. In this case 24 the plaintiff's cows were killed by escaping from the plaintiff's pasture, and going into a piece of land leased by the plaintiff to the defendants, to be used by them as a woodyard, and from that upon the defendants' track, for want of fence about the wood-yard. The evidence left it doubtful whether the defendants were to have the exclusive occupancy of the woodyard, or were to fence the same, as between them and the plaintiff: It was held that, in order to recover of the defendants for killing the cows, it should be found by the jury that it was the duty of the defendants to maintain the fence for defect of which they escaped upon the defendants' track.

19. The statute of New York, requiring railways to maintain cattle-guards at road-crossings, applies to streets in a village, but not so as to impede the passage along the streets, or render them unsafe for persons passing.25

*20. It has often been declared that railway companies, to relieve themselves from responsibility for damage caused by their trains to domestic animals, must not only build but maintain in good passing train, it was held the plaintiff could not recover. Michigan, &c., R. Co. v. Shannon, 13 Ind. 171. There are numerous cases in this state where matters of practice under the statute of that state are discussed. Wright v. Gossett, 15 Ind. 119; Ind., &c. Railw. v. Fisher, id. 203; Same v. Kercheval, 16 id. 84; Ohio & Miss. Railw. Co. v. Quier, id. 440. See also 19 id. 42; 20 id. 229; 23 id. 438; 24 id. 139. And it has been held that all animals killed at one time constitute a separate and indivisible cause of action, and two of these cannot be united to give jurisdiction to the Circuit Court. Kercheval, 24 Ind. 139.

25 Brace v. N. Y. Central Railw. Co., 27 N. Y. 269.

Ind. & Cin. R. Co. v.

repair all fences and cattle-guards required of them by law.26 If such structures are allowed to fall into decay, or are accidentally thrown open or thrown down, and not closed and restored within a reasonable time, the company are responsible to the owner of cattle injured by such neglect, provided he is not in fault himself.26 But even where such fences and cattle-guards are properly maintained, the railway companies will be held responsible for all damage to animals caused by the wilful or negligent conduct of their agents and employees.

21. In New Hampshire the common-law rule of responsibility for damage only as to cattle rightfully in the adjoining fields is maintained in regard to the duty of railway companies to fence their track, and an omission of this duty will not render them responsible for an injury happening to cattle trespassing upon the track or upon the lands adjoining.27 It is here held that railway companies are not responsible to the owner of lands adjoining their track for damage done upon such lands by cattle suffered by their owners to run at large in the highway, and thence escaping upon the railway track, and thus coming upon such adjoining lands, through defect of fences, which it is the duty of the company to maintain. But this seems questionable. We should have said, without much examination or reflection, that although the owners of the cattle are clearly responsible for all such damage, it is not quite certain the company may not also be held responsible for the same damage to the land-owner, inasmuch as the law casts upon them the duty of maintaining the fences against the land, and the damage occurred in consequence of the omission. But the court unquestionably took the surest course to visit the responsibility, in the first instance, where it ultimately belongs. It is here further said that railways are bound to maintain proper cattle-guards at farm-crossings, and are responsible for all damages to cattle rightfully there by such omission, but are not responsible for any injury to cattle suffered* to go at large in the highway, or wrongfully there for any cause, although such injury may occur by reason of the omission to build and maintain such cattle-guards.28

22. A railway company are responsible for all damage done to cattle rightfully in lands adjoining the railway track through de

26 McDowell v. N. Y. Central Railw., 37 Barb. 195.

27 Chapin v. Sullivan Railw. Co., 39 N. H. 53.

28 Post, § 128, pl. 7.

fect of fences which the company are bound to maintain; and they cannot excuse themselves from responsibility by showing that the road is operated for the benefit of other parties, and especially so long as it is done under the direction and control of the company.29

23. The building of fences along the line of a railway track is, no doubt, in regard to the security of travel thereon, to be regarded as a matter of police, and a duty which the companies cannot shift upon others by contracts to maintain such fences.30 And it makes no difference by whom such fences were built, -the company is bound to maintain them in good condition at all times.31

24. A land-owner, who by contract with the company is bound to maintain the fences through his land, cannot recover of the company for damage to cattle by reason of defect of fences, unless he show negligence on the part of the company. 32 But a railway company is responsible for cattle killed by their trains at a mere private road-crossing, which was not, but might have been, easily fenced by them.33 This case was controlled by the statute. A sufficient fence in Indiana is held to be such an one as good husbandmen usually keep. But in many of the states what shall constitute legal fences is defined by statute.

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25. Railway companies are not responsible for damage accruing to domestic animals from want of fences, at points which do not properly admit of being fenced, as in the immediate vicinity* of engine-houses, machine-shops, car-houses and wood-yards.35 And where the fence along a railway line is destroyed by unavoidable accident, as by fire, and is repaired in a reasonable time, but in the mean time cattle get at large by reason of the want of fence, and are injured, the company will not be held responsible.36 26. By statute in this state railway companies are made respon29 Wyman v. Pen. & Ken. R. Co., 46 Me. 162.

30 New Albany & Salem R. Co. v. Tilton, 12 Ind. 3; Same v. Maiden, id. 10. See also Illinois Central R. Co. v. Swearingen, 33 Ill. 389.

31 New Albany, &c. Railw. Co. v. Pace, 13 Ind. 411.

32 Terre Haute, &c. R. Co. v. Smith, 16 Ind. 102.

33 Ind. Central Railw. v. Leamon, 18 Ind. 173.

34 Toledo & Wabash Railw. Co. v. Thomas, 18 Ind. 215. If such a fence is maintained, the company is only liable as at common law for negligence.

35 Ind. & Cin. Railw. Co. v. Oestel, 20 Ind. 231; Galena & Chicago Union R. Co. v. Griffin, 31 Ill. 303.

36 Toledo & Wabash R. Co. v. Daniels, 21 Ind. 256; Ind., Pitts. & Clev. R. Co. v. Truitt, 24 id. 162.

sible for animals, but not for persons, injured upon their roads, when they might be, but are not fenced, irrespective of the question of negligence. But when a proper fence is maintained in all places where it is required to be, the company are not responsible for animals injured except, as at common law, where there is negligence on their part conducing to the result, and none on the part of the owner of that character.37

27. The requirements of railway companies as to fencing their road are not intended chiefly for the protection of domestic animals, but for the security of travel and transportation, and where the fence is thrown down by third persons without the knowledge of the company that it is down, and cattle stray upon the track and receive injury, the company is not responsible for the damage.38

28. Where the plaintiff is guilty of negligence which immediately and directly contributes to the injury of cattle, he cannot recover of a railway company unless by the exercise of ordinary care and prudence at the time the company might have avoided inflicting the injury.39

29. Where the railway company stipulated with an adjoining land-owner to construct five "cowpits" or cattle-guards upon his land, but did it in so imperfect a manner as to be of no value, and the land-owner brought suit for the breach of contract, it was held he could only recover such damage as he had sustained up to the time of bringing the action, unless where he had himself constructed the cattle-guards in a proper manner, when he might also recover the expense of such construction.40

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30. Where bars are erected at a farm-crossing at the request of the land-owner, it is his duty to keep them up; and if he fails to do so, whereby his own cattle or those of third persons straying into his field get upon the track and are injured, the owners of such cattle cannot recover of the company if guilty of no default at the time of the injury.41

37 Thayer v. St. Louis, Alton, &c. Railw. Co., 22 Ind. 26; McKinley v. Ohio, &c. Railw. Co., id. 99, where it is held it will make no difference as to the responsibility of the company that the road is operated by a receiver.

3 Toledo, &c. Railw. v. Fowler, 22 Ind. 316.

39 Ind. &c. Railw. v. Wright, 22 Ind. 376.

See also Eames v. Boston &

40 Indiana Central Railw. v. Moore, 23 Ind. 14. 41 Indianapolis R. Co. v. Adkins, 23 Ind. 340. Worcester Railw., 14 Allen. 151. In this case the company erected bars for the accommodation of the land-owner, and the animal killed escaped upon the track,

31. A railway running along the line of a highway is required to be fenced with especial care and watchfulness.42 But where an animal passes upon the track of a railway at the crossing of a highway, where it would not be proper nor practicable to make any effectual fence or cattle-guards, and is injured, the company is not responsible unless in fault in the management of the train at the time.43 And it was here considered that notwithstanding the facts that the plaintiff was guilty of negligence in permitting the animal to stray upon the track, and was not an adjoining proprietor, he might recover for an injury thereto by the cars of a railway company if their track was not fenced. But where the owner of a blind horse turned him out upon the common of a town, through which a railway ran, where he was killed by a passing train, and the track was not fenced, it was held he could not recover, on account of his own gross negligence.44

32. In actions against railway companies, under the statute, for injury to domestic animals, it should appear affirmatively that the case comes within the provisions of the statute. Thus where railways are required to fence their roads within six months after opening them for use, on penalty of being responsible for all cattle injured, it should appear, in an action for *injury by reason of such omission, that the six months had expired. So if it claimed that the injury occurred by reason of the omission to fence, it should appear that it occurred at a point in the road where the company were not excused from fencing.46 To constitute a town or village within the statute it is not requisite there should be any plot of the same dedicating streets, &c., in the manner provided by statute.46

by the bars being left down, and afterwards passed upon the adjoining lot, and then upon the railway again, it not appearing precisely how. The court held, the owner could not recover without showing the bars were down without his fault, or else that the animal, after leaving the track, came upon it again through the fault of the company.

42 Ind. & Cin. R. Co. v. Guard, 24 Ind. 222; Same v. McKinney, id. 283. 43 Ind. & Cin. R. Co. v. McKinney, 24 Ind. 283.

44 Knight v. Toledo & Wabash R. Co., 24 Ind. 402. A railway company is not bound to resort to any extraordinary means to insure the fence being kept up along its line night and day; reasonable diligence is all that is required. Illinois Central Railw. v. Dickerson, 27 Ill. 55; Same v. Phelps, 29 id. 447; Same v. Swearingen, 33 id. 289.

45 Ohio & Miss. R. Co. v. Meisenhiemer, 27 Ill. 30; Same v. Jones, id. 41. 46 Illinois Central Railw. Co. v. Williams, 27 Ill. 48.

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