| Pa. | Jan 15, 1866
The opinion of the court was delivered, by
The plaintiff’s action is in tort against the company for neglecting to fence their road through his farm, which in his narr. he charges they were bound to do “ by the laws of the state, or by their agreement, or by both,” by reason whereof, it is further charged, “ the cattle and horses of the plaintiff on his farm” were killed ■; to wit, two head of cow cattle and a mare. The principal question discussed on the argument was, whether an action on the case in tort would lie to redress the wrong complained of, there being a contract to fence. ■ The court below held that the plaintiff could not recover as in tort, and was of opinion that he must sue on his contract.
It is undoubtedly true, that many cases.occur in the reports in other states, in which the action in tort has been maintained against railroad companies for neglecting to fence, and the value of cattle killed has been recovered ; but in almost all such cases, the duty to fence arose by law and not merely by contract. The duty in such a case is to the public in consideration of the privilege granted.
Since Skinner’s Case, 7 Harris 298, it is settled that a railroad company, unless required by their charter, are not bound to fence ; and yet whether the road pass through a man’s fields or woodland, they are entitled to a free and clear track against the owner’s or any other person’s cattle. For the reasons for this ruling;! refer
The reason is that they are unlawfully there — are trespassers ; and if injury befall them while so trespassing, it is the fault of their owner in not restraining them. If he permit them to roam, he must take the risk of all loss by accident: Knight v. Abert, 6 Barr 472. It is true, in this state, cattle are not treated as trespassers on unenclosed fields or woodlands ; rather because of the inappreciable damage that would be sustained, than from any change in the common law. “ But if such an intrusion,” says the learned judge in Skinner’s Case, “ would occasion substantial damage, the English rule would be applicable to it, on the principle that the owner of a bull which has gored another’s ox must pay for ithence, the learned judge holds that cattle on a railroad are trespassers, and for any substantial injui-y they might do the owner is liable, although there be no fences ; and as a result of his negligence, he cannot recover if they be injured by accident, being where they ought not to be: Knight v. Abert, supra, fully supports this view.
The loss of the cattle in this case is charged, not to wilfulness or negligent conduct in running trains, but to the neglect of the company in not fencing according to their contract. This is laid as the causa causans, the remote cause ; the proximate cause was undoubtedly the running of the trains. But could not the company run their trains'without having fenced, in accordance with their contract ? They purchased the right to pass through the plaintiff’s lands for a fixed sum of money and an agreement to fence: after the plaintiff thus sold his right of way, he had no right to obstruct it by allowing his cattle to roam and browse upon it. This would be entirely incompatible with the right the law gives to the company to a clear track, as held in Skinner’s Case, and would subject the public to the dangers and risks arising out of a relation between the company and an individual which might be disastrous to life and property. To avoid such results is the merit of Skinner’s Case. It was the duty of the plaintiff, therefore, to keep his cattle off the plaintiff’s road at the risk of losing them; but the opposite of this is what he contends for, by claiming as the gravamen of his action, that the cattle were killed on the road by reason of the neglect of the defendant to fence. This necessarily assumes the ground that having a contract to fence, care on his part to prevent his cattle trespassing on the road no longer existed. This the learned judge below properly denied, and in substance told the jury that the wrong of dhe defendant in not fencing would neither authorize nor justify a
The doctrines of this case would go for nothing, if courts were to hold that a contract to fence, in payment of a right of way or otherwise, was a contract that relieved the owner of cattle from keeping them off the road, and permitted him to impede trains in their rate of speed. Indeed, if this might be done, I see not why such an owner might not enjoin the company from running altogether, to prevent injury to his cattle. Assuming that there was a contract to fence in this case, the plaintiff should have moved the company, in anticipation of damages, to build it, and not relied upon making them answerable for remote consequences. And he may sue on it yet, if it be in force, and will be entitled to such damages as the law declares to be incident to the breach of such a contract.
We think the learned judge was right in holding that the action of tort, which assumed that the plaintiff was not bound to keep his cattle off the defendants’ road, and that the latter was answerable for accidental injury to them while roaming there because they neglected to fence, was not maintainable.
This action was predicated of the duty to fence. Now, supposing this to be á case in which the action might lie upon the duty, a thing I by no means admit, to render the defendants answerable, it must appear that the result or disaster was exclusively owing to their neglect. But if the law be as the case cited, and several others since show, the plaintiff was in default in permitting his cattle to be where they had no right to be, and could not recover for them if killed or injured : North Pennsylvania Railroad Co. v. Rehman, 13 Wright 103. If an injury is the result of contributory negligence by both parties, neither can recover.
Whether the plaintiff has a remedy on his contract for the damage done to his cattle, we cannot say, for the contract is not before us. We cannot therefore determine that the learned judge erred when he said his remedy was on the contract. It is possible. it is expressly so agreed. To say that there was error would, therefore, be conjecture. But it is questionable whether the learned judge meant more than to say, that under the circumstances, the only suit the plaintiff could maintain against the defendants for failing to fence was on the contract, without reference to whether
The instruction to find for the defendants we think was entirely justified on the first ground herein noticed; and if there was any contract to change the law of the case it should have been shown.
Judgment affirmed.