The appellant prosecutes this appeal from a judgment rendered against it for the value of two cows killed by one of its locomotives.
We are, therefore, to examine the evidence in this case, not with a view of ascertaining whether it was the duty of the appellant to fence at the place where the appellee’s cows were killed, but whether it was the company’s duty to fence at the place where the cattle entered upon the track.
The evidence shows that the animals were killed on the main track of the company, at a station called Talbot, and immediately opposite a large grain elevator. It also appears that at this point there was a spur, or side-track, used by the company for freight cars and for receiving and unloading grain, lumber, and other freight. The testimony does not directly show at what point the cows came upon the track, but it does clearly show that on the south side of the tracks there was a secure fence, and that on the north side there was a steep embankment down which cows would not go. The inference from the evidence is that appellee’s cows entered upon the track at a place where it would have interfered with the business of the company in handling cars or in receiving and discharging freight, or else at a place where it would have endangered the lives of persons in the employment of the company, to have placed cattle-guards.
The plaintiff in such an action as this has the burden of showing that the animals entered at a place where the railroad was not fenced, and it is doubtful whether it can be said
It is true that when the plaintiff proves that the place was not fenced, the burden is devolved upon the defendant of showing an excuse for not fencing. In this case we think the evidence does show that the side of the spur track could not have been fenced without injury to the business of the company, and it is established by many cases that railroad companies are not bound to fence at such places. The evidence brings the case fully within the decision in Cincinnati, etc., R. R. Co. v. Wood, 82 Ind. 593, and eases there cited.
A cattle-guard could not have been placed at the crossing of the street called West street without endangering the lives of persons engaged in managing the freight trains of the company. The adjudged cases declare that a railroad company is liable to its servants if it negligently or wrongfully makes unsafe and dangerous places in its tracks. Its duty with respect to its track is much the same as that to which it is held respecting its machinery. Allen v. Burlington, etc., R. R. Co., 5 Am. & Eng. R. R. Cas. 620; Snow v. Housatonic R. R. Co., 8 Allen, 441; Lewis v. St. Louis, etc., R. R. Co., 59 Mo. 495 (21 Am. R. 385); Plank v. N. Y, etc., R. R. Co., 60 N. Y. 607. In the recent case of Evansville, etc., R. R. Co. v. Willis, 93 Ind. 507, we held that a railroad company was not bound to place cattle-guards where they would endanger the lives of their servants. It seems to us that any other conclusion would be radically wrong, for it would place the company in the dilemma of becoming liable to its servants if it constructed cattle-pits at places where they would be dangerous, and liable to cattle-owners if it neglected to provide such guards.
The jury found, in the answers to interrogatories, against
Judgment reversed.
Hammond, J., did not take any part in the decision of this case.