Suit by Thomas against the railroad company to recover for stock killed on the track of their road. Judgment for the plaintiff.
The evidence is in the record. Rut three witnesses were examined, and, according to the record, all on. the part of the plaintiff
The following facts are proved, and they are all that are material: Six head of cattle, worth 20 dollars a head, were found dead on the railroad track about daylight on the morning of the 17th of November, 1857, and were supposed to have been killed by the machinery of the railroad company. The cattle belonged to the plaintiff The road was fenced,at the point where the cattle were killed, by a sufficient fence. It was a post and board fence, five boards high, the boards being
It is not shown that there was any carelessness in running the train. Hence, the road is not liable on this ground.
If the company is liable at all, it is because of negligence in not stopping the hole under the fence. "Were they thus negligent?
This point does not appear to h-ave been placed before and considered by the jury, as it should have been, and we are not satisfied that justice has been done. Conceding for the purposes of this case that the company was bound to close the opening in question by plank rather than the occupier of the field, by restoring the removed earth, still the questions would arise, how long had the opening existed, how long had the company known of it, and did its existence ever, in fact, render the fence insufficient as against cattle ? The company was only bound to make and keep up a legal fence. "What is such a fence, the statute defines. 1 R. S., by Gr. & EL, p. 842. It is such an one as “good husbandmen generally keep.” And where such a fence exists, and cattle are killed, the railroad company is not liable, except as at common law, for negligence. And in such case, if the cattle are breachy, or the owner leaves them without food or water, and, under the pressure of want of these, the cattle become restless and desperate, and break out and are killed or injured by the railroad machinery, the owner can not recover for them, at least, without proving negligence on the part of the company; and perhaps not then, in all cases. If it could be shown, in a given ease, that such negligence of the owner contributed to the immediate injury causing loss, he could not recover for it. "We think there ought to be another trial in this case.
The judgment is reversed with costs. Cause remanded.