21 Kan. 613 | Ark. | 1879
The opinion of the court was delivered by
The learned judge in the court below mistook the law in reference to this case, in rendering judgment on his findings of fact against, the railroad company. The stock law of 1874, exempting railroad companies from its conditions when their roads are inclosed with a good and lawful fence, is to be construed in connection with the fence law in force. In other words, railroad companies are not required to build different fences from other parties. The fence' spoken of 'in the stock law is no different or more expensive a structure than that mentioned in the general law defining a legal and sufficient fence. (Gen. Stat., ch.40, §2.) In townships where hogs are permitted to run at large, the bottom rail, board or plank of which the fence is composed shall not be more than six inches from the ground; in •other townships it shall not be more than two feet. In the law there is no prohibition against building fences of rails •or lumber, and when constructed of this material, as required by the law, they are lawful fences. There is no finding to show that in Wakarusa township swine were allowed to run at large. The general law of the state is, that they shall not run at large. Assuming the general law of the state was in force, then the railroad company, in any event, was only bound to build a fence through the inclosure of Yates, with the bottom rail, board or plank not more than two feet from the ground. (Laws 1873, ch. 88, §1.) Such a fence would not have prevented the hogs killed from being on the road; indeed, the fence thus constructed, and being within all the requirements of the law a good and lawful fence, would have in no respect been of any benefit to the proprietor of the land, so far as keeping his hogs from the track. Then, if such a fence was useless and unnecessary so far as this case is concerned, can it be logically said that the company ought to have built its fence? or that from its failure to construct a fence which would not keep the animals killed from going upon the road, it was liable under the law of 1874? We ■answer, no. The building of a dozen, or any other number of fences of the character required by law in Wakarusa township, would have afforded no protection to the defendant in •error, and he has no serious complaint of their absence. As a lawful fence could not have prevented the injury, and would not have protected the railroad track from the swine, so no obligation existed to erect it. The failure to erect the fence may be laid aside as having no bearing on the case.
We conclude that the company was rightfully in the field with its road and cars; that it was not bound to do a useless ■qr an unnecessary act; that therefore, as to hogs, it was not bound to maintain a fence. As the findings show they were not killed by any negligence, unless the failure to fence the track was negligence, the company was not liable.
The judgment will be reversed, and the case remanded with the direction that judgment be entered upon the findings of fact for the plaintiff in error.
