27 S.W. 969 | Tex. App. | 1894
Action for damages for value of plaintiff's (appellee's) mule killed by a train of defendant (appellant). The railroad ran through plaintiff's farm or pasture; the pasture was fenced. Plaintiff turned the mule into the farm or pasture and it was killed as stated. The court below gave judgment for plaintiff for the value of the mule; and defendant has appealed.
Opinion. — The contention of appellant is, that the railroad right of way is fenced within the terms of the law, and therefore it would not be liable for the value of the mule in the absence of negligence.
We can not agree to the proposition. The fact that the farm is fenced does not excuse the company from fencing its right of way through the farm. Plaintiff had the right to pasture his mule on his farm, and to allow him to run unconfined therein as upon the common. The principle contended for by appellant is not sound. It would permit a railway company to operate its road and run its trains through all fenced pastures and inclosures, and exempt it from liability for killing stock therein, and the owner would be held to run the risk of having his stock killed by the legitimate use of his own pasture, except when he could prove that the killing was the result of defendant's negligence. It would deprive the owner of the benefits of the statute. Rev. Stats., art. 4245; Railway v. Childress,
The judgment of the lower court is affirmed.
Affirmed.
