Keliher v. Connecticut River Railroad

107 Mass. 411 | Mass. | 1871

Ames, J.

Under the provisions of Gen. Sts. e. 63, §§ 42, 43, it was the duty of the defendants to make and maintain fences suitable for the benefit and security of the landowner and of travellers upon the road, upon both sides of the railroad for its entire length, (with certain exceptions not necessary to be here considered,) and also to “ construct and maintain sufficient barriers at such places ,as may be necessary, and, where it is practicable to do so, to prevent the entrance of cattle upon the road.” The duty is imperative, and is expressed in very comprehensive terms. As soon as the mill pond was drawn down, there ceased to be any fence between the lands occupied by the parties respectively, capable of confining the plaintiff’s cow within the limits of his inclosure. It was no fault- of the plaintiff’s, therefore, that the cow escaped from the pasture and wandered upon the raiboad and was there killed. It is true that in order to get into a dangerous place the cow had to pass first under the road bed; and, after wandering over land belonging to another person, made her way to the railroad track by passing through an opening in another i mce, which the defendants were also bound to maintain.

In this state of facts, there seems to be no reason for excusing the defendants from liability. The statute is not intended to be confined to cases in which cattle pass dbectly from the pasture to the raiboad. It is enough if the escape of the cow was owing to the insufficiency of a fence which the raiboad company was bound to maintain, and it is no excuse to the defendants that after she had escaped from that cause she passed over land of another proprietor, and so found her way upon the track, by a similar deficiency at another place, where they were also under the same obligation. The case differs widely from Eames v. Salem & Lowell Railroad Co. 98 Mass. 560, in which the escape of the cattle was owing to the neglect of the plaintiff to maintain his own fence. The escape in that case happened without any fault on the part of the railroad company, and the cattle were unlawfully out of bounds before they reached the point of danger. As between the parties to the present case, however, the escape was owing to the defendants’ neglect of duty, and it is not for them to say that the cow was unlawfully allowed to go at large. It would he trifling with the statute to hold that, although the plaintiff has been guilty of no fault, he is to be left without remedy. The case comes within the rule laid down in Eames v. Boston & Worcester Railroad Co. 14 Allen, 151.

Judgment for the plaintiff.