98 Mass. 560 | Mass. | 1868
In'some of the reported cases respecting injuries done by passing trains to domestic animals that have strayed upon railroad tracks, the elementary principles of law have not been distinctly kept in view. It may be well, therefore, in this case, to recur to these principles.
By the common law, every man was bound to keep his cattle upon his own land; and, if he suffered them to escape and go upon the land of another, he was a trespasser. Rust v. Low, 6 Mass. 90. Therefore, by the common law, the plaintiff in this ease would be a trespasser, if his sheep escaped from his own
In this case, it appears that the plaintiff’s sheep strayed from his own land and went upon the defendants’ railroad track, and were there killed by a passing train ; but it does not appear that the train was carelessly managed. This being so, the company would not be liable by the common law, even if the sheep did not escape by reason of the plaintiff’s negligence; and if the plaintiff can maintain his action, it must be by force of some statute. He relies upon the statute requiring the company to make and maintain fences on each side of their road, and alleges that this provision has not been complied with.
The jury were instructed “ that the defendants were bound by the statutes to fence upon the whole line of their road, except at crossings or in places where the convenient use of the road would be obstructed ; that the fence which they must maintain is the fence prescribed by statute for adjoining owners of land; and that no negligence of the plaintiff in turning his sheep upon he land, as before stated, nor the fact, which was found by tne court, that the sheep were wrongfully upon the land adjoining the railroad would constitute a defence to this action.” The
The doctrine that one can recover for an injury to whicn his own negligence has contributed is novel. As a general rule, it is not just that such party shall recover; and we cannot perceive that it has any tendency to prevent the owners of cattle
Our earlier railroad acts did not require companies to make or maintain fences; but they paid damages to landowners which included the expense of fencing, as in the case of highways. See Rev. Sts. c. 39, § 56; Stearns v. Old Colony & Fall River Railroad Co. 1 Allen, 493. This system was modified by St. 1841, c. 125, and entirely changed by St. 1846, c. 271, which is still continued in force.
By Gen. Sts. c. 63, § 42, where the owner of the land has not received all the damages assessed to him, or has not agreed to maintain suitable fences upon the road, the county commissioners may require the corporation to make and maintain fences suitable for the benefit and security of the landowner, and of travellers upon the road. By § 43, each corporation shall make and maintain suitable fences, with convenient bars, gates or openings therein, at such places as may reasonably be required, upon both sides'of the entire length of any railroad which shall have been constructed subsequently to May 16, 1846, except at the crossings of a turnpike, highway or other way, or in places where a convenient use of the way would be thereby obstructed; and shall also construct and maintain sufficient barriers at such places as may be necessary, and, when it is practicable to do so, to prevent the entrance of cattle upon the road.
The kind of fences required to be made by adjoining owners of land is designated in Gen. Sts. c. 25, § 1. But, in the ailroad act above cited, “ suitable fences ” are required, with-v ut describing them or referring to any standard. Fences between adjoining proprietors are to be maintained only in case they improve their lands. If one allows his land to remain unimproved, or if it is a mere wood lot, he is not bound to main* tain any part of the fence. But the fences to be built along tha
Nor does our statute give any right of action to the owner of animals, who negligently suffers them to escape from his own land; or of animals that are wrongfully on the land adjoining the railroad. It speaks of the benefit and security of the landowner, clearly referring to the adjoining landowner; and of travellers on the road. We cannot properly extend its construction so as to include landowners whose land does not adjoin the road. They are left to their common law rights and liabilities. If their animals are wrongfully on the adjoining land, and go upon the company’s land where the fences are defective, they are trespassers. The adjoining landowner himself would not be a trespasser in case his animals escaped through a defective fence which the company is under obligation to maintain. But there are many cases in which he is bound to maintain the fence. This is the case whenever the railroad was made prior to 1846, and when he contracts to make the fence. In such case, if his animals escape, he is a trespasser.
As to other owners, therefore, the company are not guilty of negligence in suffering the fences to be defective; and the animals do not get upon the track by reason of the neglect of duty which the company owes to them. They are there by the fault of the owner.
Our legislation provides for the protection and indemnity of passengers who may be injured, and of adjoining proprietors who have a right to require the company to maintain fences , but it leaves other landowners to take all reasonable risks of their c.attle being injured if they wrongfully go upon the road, It does not indemnify carelessness. The instruction was erra neous on this point. Exceptions sustained.