32 Minn. 88 | Minn. | 1884
We are of opinion that a wire fence constructed in accordance with the provisions of Gen. St. 1838, c. 18, § 2, would be a compliance with Gen. St. 1878, c. 34, § 54, requiring railroad companies to fence their roads. This was held arguendo in Fitzgerald v.
In the case of certain animals, such as horses, it would be clear, as & matter of law, that a fence would “turn” them; in the case of others, like sheep or swine, this would be a question of fact depending on the size of the animals. In this case, the animal killed (a hog) was of a species that might be turned by a lawful fence, and the evidence as to the size of the animal does not so clearly or conclusively show that it would not that we can say that the trial justice erred in finding that the negligence of the company in failing to fence was the cause of the injury.
Judgment affirmed.
Note. Joseph Wessbecher v. Minneapolis & St. Louis Railway Company.
Appeal by defendant from an order of tlie district court for Carver county, Macdonald, J., presiding, refusing a new trial.
II. J. Peek, for appellant.
E. Southworth, for respondent.
Mitchell, J. Tlie case follows Halverson v. Minn. & St. Louis Ry. Co., supra.
Order affirmed.
Dickinson, J., because of illness, took no part in this decision.
