24 Minn. 394 | Minn. | 1878
This action is brought to recover damages for running into the plaintiff’s cattle with a railway train, and killing them, upon the track of the Hastings & Dakota Railway, which was being operated by defendant.
The complaint is framed upon the idea that sections 1 and 2, e. 25, Laws 1872, entitled “An act to compel all railroad companies within this state to build proper cattle guards and fences, ” apply to the Hastings & Dakota Railway Company. Judicially speaking, this is to be presumed to be the fact, in the absence (as in the case at bar) of any charter provision, pleaded and proved, by virtue of which such company is taken cut of the operation of said sections.
Section 1 provides that “all railroad companies in this state shall, within six months from and after the passage of this act, build, or cause to be built, good and sufficient cattle guards at all wagon crossings, and good and substantial fences on each side of such road. ”
Section 2, that “all railroad companies shall be liable for domestic animals killed or injured by the negligence of such companies, and a failure to build and maintain cattle guards and fences, as above provided, shall be deemed an act of negligence on the part of such companies.”
The court charged, among other things, that the omission to build and maintain a fence was in itself negligence on the part of .the railroad company.
This is unquestionably a correct statement of the rule of law presented by section 2 above cited, but there was evidence in the case going to establish the following state of facts;
Now section 2, of the act of 1872, declares that “all railroad companies shall be liable for domestic animals killed or injured
With reference to the point that the charter of the Hastings & Dakota Bailway Company contains a special provision as to fencing which exempts the company from the operations of sections 1 and 2 of the act of 1872, we observe that if such
The order denying a new trial is reversed, and a new trial directed.