41 Minn. 101 | Minn. | 1889
The plaintiff’s horse ran away and entered upon the unfeneed right of way and track of defendant in the suburbs of the city of Minneapolis, and was killed. This action is brought to recover its value, with harness alleged also to have been destroyed by the colliding engine. The argument of the defendant proceeds upon the assumption that the horse entered upon the track at a wagon-crossing, open and used for travel, distant 65 feet north from the “head-block” and last switch in that direction, connecting a side track leading to a round-house with the main track, which runs to
1. It was the duty of the defendant to protect its track by a fence or by cattle-guards at that point, unless the situation was such as to bring the case within the implied exception to the statutory provisions requiring such precautions. That is to say, if it was necessary that the grounds of the company there, including this crossing, should have been kept open in order to enable the company properly to discharge its duties to the public, and accommodate the public convenience or necessity, then, within the settled rule *of this court, the defendant would not be liable for a failure to fence. Greeley v. St. Paul, M. & M. Ry. Co., 33 Minn. 136, (22 N. W. Rep. 179;) Hooper v. Chicago, St. Paul, M. & O. Ry. Co., 37 Minn. 52, (33 N. W. Rep. 314,) and other cases. But the construction under which this exception is implied in the practical application of the statutory rule.is not to be extended to cases where the reason for it is wanting, or beyond the reasonable limits of the company’s depot or other public grounds which necessarily fall within the exemption.
2. In this case it appears that the defendant’s line of road, running north from the switch, traverses an open area, with no intersecting highway or travelled crossing for a long distance, except at' the place named, and is not fenced. The horse was overtaken upon a bridge a considerable distance above this crossing, so that, whether the jury found that it entered upon the track at that place or at any point between it and the bridge, the company would be presumptively subject to the statutory rule; and it is the condition of the road where the horse entered the right of way of the defendant, and not at' the place where he was killed, that is to govern, and that becomes material to consider upon the question of the company’s liability. From the switch north the road has but a single track, and the burden
3. The case does not disclose any negligence on the part of the plaintiff in suffering his horse to be at large.' It appears that he escaped from custody, and ran away, and w'as killed in harness, but it does not appear that it.was through plaintiff’s fault or carelessness. It was for the defendant to establish plaintiff’s contributory negligence, and it is not shown in this case.
Order affirmed.