32 Mich. 322 | Mich. | 1875
This was a suit brought by the plaintiff in error and tried by the court, and on special findings determined in favor of defendant.
The only question made by the case and insisted on in the plaintiff’s brief is, whether, when a railroad company has once constructed proper side fences through a farm and proceeded to keep them up, and a short piece is suddenly blown down by a heavy wind during the night, and the company is not found to have been guilty of any fault in regard to the strength of the fence, or in regard to the length of time taken to restore it, the owner of the farm, whose horses escape through the breach and get upon the railroad track and are there killed by a passing train without neglect or willfulness by the agents or servants of the company, is entitled to recover of the company his damages caused by the destruction of the horses.
The plaintiff claims that the statute (Laws of 1878, p. 538, § 15) imposes on the company an imperative obligation to keep up every foot of the fence at all times, and that if any portion of it is thrown down or carried away by sudden tempests, and any injury happens, like that in question, the company, though innocent of all actual fault, is yet liable.
The judgment should be affirmed, with costs.