94 Tenn. 450 | Tenn. | 1895
This is an action on tho case commenced in the Circuit Court of Warren County by J. N. Hughes against the railroad company, to recover damages for the killing of plaintiff’s mare. There was a verdict and judgment in favor of the plaintiff for one hundred and lifty dollars. The company appealed and has assigned errors.
The third assignment of error is that the Circuit Judge charged the jury, inter alia, that “it is incumbent upon the defendant to show that its road is fenced with a good and lawful -fence and sufficient cattle guards.” Tt is insisted on behalf of plaintiff in error, that the Act of 1891, Ch. 101, fixing liability of railroads for stock' killed on unfenced tracks, has no application to the facts of this case, and that the charge was therefore erroneous. It appears from the record-that on January 5, 1893, the plaintiff, on reaching Tullahoma, about four or five o’clock in the evening, unhitched his two horses, and tied them by the bridle to his wagon, where he left them standing. After remaining there for some time, the horses became frightened and ran away, running side by side, and going towards the railroad depot, within the corporate limits. On reaching the depot, they turned down the railroad track, and ran south between the rails for a distance of
It is true, as' assumed by counsel, that statutes creating a liability against a railroad company for a failure to fence its track do not apply to highway crossings nor to depot and station grounds. Flint, etc., Railroad Co. v. Lull, 28 Mich., 510; Soward v. Chicago & N. W. Railroad Co., 30 Iowa, 551. Says Mr. Thornton in his work on Railroad Fences, Sec. 91, viz.: “It has always been regarded that the fencing of a station or depot, and the grounds immediately around it, would not only be such a
Wood on Railroads, Yol. III., Sec. 419, says: “Depot grounds, as a rule, cannot be fenced, at least without great inconvenience to the company as well as to the public, and, generally, are not required to be, and, where cattle, straying upon the highway, escape upon the track over such grounds, or at any point whore the company is not required to erect a fence, the company is not responsible.”
It is the condition of the road at the place where the animal entered upon the track, and not its condition at the Iocuk in quo of the • accident, that is material in determining rvhether the railroad has complied with its statutory duty to fence its track. 109 Ind., 295; I'd., 235; 38 Ill., 280; Shearman & Redfield on Negligence, Sec. 436.
So, then, in this case,- if nothing else appeared, the company would not be liable for the omission to fence at the place where the accident occurred,
It is insisted, however, that this accident is shown to have occurred within the limits of an incorporated town, and that the statute, therefore, has no application. This question arose in the case of Ells v. Pacific Railroad, 48 Mo., 232. The Court said: ‘ ‘ In regard to the first defense, it appeared that the portion of the town where the accident happened had not been laid out into lots, streets, and alleys, and that no road or street had been established to cross the railroad near that point. This action is prosecuted under the fifth section of the Act concerning damages, etc. • (Wagn. Stat., 520), and the question is raised for the first time in this Court whether a railroad company is excused from fencing the track of its road when it runs through a town or city, merely from that fact, and without reference to whether it thereby crosses the public highways of such city or town. The statute makes
Mr. Thornton, in his recent work on Railroad Fences and Private Crossings, after a thorough review of all the authorities, reaches substantially the same conclusion as that announced in the case just cited. The author quotes an Indiana case, in which the Court said, viz.: ‘ ‘ The statute makes no provisions as to the places which may be left unfenced; but the Courts, recognizing the necessity of’ excepting streets of towns and cities and places where the business of the railroad companies demand that no fences be made, have engrafted exceptions upon the statute. These exceptions have been made, not to advance the private interests of railroad corporations, but to promote the public good by enabling
Again, it was said in another case: £<But whenever a railroad company can build and maintain such a fence without interfering' with the rights of the public, or with the free use of . private property, then it is bound to maintain the fence, whether it be in a city, village, or in the country.” Thornton on Railroad Fences, etc., Sec. 86.
In another case it was said that there are places within an incorporated town where the railroad may fence, as where there are no streets or alleys, and the public travel' would not be interrupted by such fence. Young v. Hannibal Railroad, 79 Mo., 336. Such is particularly the case if the adjacent lands are used for farming purposes (66 Mo., 683), or where a block of land is not intended for streets and alleys (38 Ind., 447); but whenever the land is regularly laid out in lots, blocks, or streets, the streets crossing the railroad, which streets have been dedicated to. public use as public highways, it would be unlawful for the railroad to fence up the streets in such towns, and it would make no difference in such case whether the town so laid out into streets, etc., was incorporated or not. Gerren v. Hannibal Railroad Co.., 60 Mo., 405, cited in Thornton on Railroad Fences, Sec. 88.
Again, in the case of Lathrop v. Central Iowa Railway Co., 69 Iowa, 105, the Court said: “The acknowl
When we come to apply these principles to the facts of this particular case, we find nothing in the record to indicate that, from the point where the animal entered upon the track to the point where the accident happened, the railroad track was intersected by any street or crossing, either actually opened or dedicated to the public use. All that the record dis
Affirmed.