When the plaintiff rested, the defendant moved for judgment as in case of nonsuit.
The court allowed the motion, holding that the railroad was not liable because its fence was upon its right of way and not along a public highway.
Plaintiff excepted and appealed.
The defendant erected a barb-wire fence along its right of way. There was evidence that it was negligently erected and maintained. "In some places it was 12 inches high and from that to 30 or 35 inches from the ground to the top wire. Three strands of wire were used, and it was put so far apart that, when people crossed it, it sagged down about 12 inches in some places. The posts were old rotten cross-ties 40 or 50 feet apart." There was no top bar. The plaintiff's horse, running in his pasture, got entangled in this wire fence, and was injured, and this action is brought for damages (372) sustained. It was error in the judge to nonsuit the plaintiff.
In Sisk v. Crump, 112 Ind. 504 (2 Am. St., 213), it is said, "The act of a land-owner in erecting upon his property along a public highway a barb-wire fence does not in itself render him liable to one who sustains an injury therefrom, but if he negligently constructs and maintains it in such a manner as to be dangerous, he is liable, for instance, for injury to an animal which is attracted by other animals, or by grass growing inside the fence, and in endeavoring to cross such defective
fence becomes entangled therein." The Court says the statute of that State expressly authorizes the erection of barb-wire fences, and the liability comes only from their neglected condition. To exactly the same purport isLoveland v. Gardner, 79 Cal. 317, that while the owner of land is not liable from the mere act of constructing a wire fence thereon, for damages sustained by the animals of others, yet he is bound to see that the fence is not so negligently maintained as to become a trap for them from their natural propensities of which he must take notice. The liability of the defendant in this case is that which would attach to any one else putting up a defective fence which is from its peculiar nature thereby made dangerous.
Chapter 65, Laws 1895, makes it unlawful to erect a barb-wire fence along any public road or highway, unless a railing is placed on top of the fence not less than three inches high. It is perhaps to be regretted that this act is restricted to the counties there in named. But, though Catawba (whence this appeal comes) is one of such counties, we think the act has no application here, for the railroad, (373) though a public highway in some senses, is not such within the purview of this act, which was evidently intended for the protection of live stock passing along a public road.
Nor does it make any difference that Catawba County is within the limits of the "no-fence territory" in which stock are prohibited from running at large. Not only the track of the defendant passed through the plaintiff's pasture where his stock had a right to run unless the defendant fenced up its right of way R. R. v. Sturgeon, 120 N.C. 225), but even if it were otherwise, and the plaintiff's horse was illegally running at large, it was not contributory negligence. Horner v. Williams, 100 N.C. 230. Nor could contributory negligence be considered on a motion to nonsuit. Cogdell v. R.R., 124 N.C. 302. The plaintiff was liable for the trespasses if the animal was illegally at large, and the horse could be impounded, but the defendant had no right to catch him in a barb-wire trap, and wind him up in its meshes as merciless as the coils which crushed Laocoon and his sons. The defendant was not compelled to put up a fence at all (Jones v. R. R.,95 N.C. 328), but if it did so, it should not be put up in a negligent manner calculated to injure live stock. Sic utere tuo, ut alienum nonloedas. It is not claimed that the defendant did so intentionally. The ground for damages is the defendant's negligence in maintaining a barb-wire fence in such a negligent condition that the horse, running in his owner's pasture, was caught and cut by an impediment which, in view of the nature of the animal, enticed him to try to cross it, instead of being high enough, and tight enough to hold him back. In Jones v. R. R., supra, in which the defendant company was held not liable for the plaintiff's blind horse
falling into the cut, there was no allegation that the cut, which was necessary, was negligently excavated, and that thereby, the injury was caused
Here the negligent method of keeping up the fence is alleged as (374) the direct cause.
This case differs from Morrison v. Cornelius, 63 N.C. 346, where the owner of saltpetre vats covered them up, and enclosed them by a sufficient fence, but the plaintiff's cattle got into the enclosure in some unknown way, drank of the liquid and died. It was held there was no evidence of negligence. It was also held that if one digs a well or a trench on his own land, and a neighbor's cattle fall therein, the landowner is not liable. So situated, they are not nuisances per se, or likely to injure. But, here the wire fence is dangerous by the manner in which it is put up; it was likely to injure, for it was on the edge of a neighbor's pasture where his live stock would be likely to come and, if they came, would almost certainly be ensnared. By its location and the probability of its causing injury at that place in its defective state, it was a nuisance. S. R. Negligence, section 702 (5 Ed.), and cases cited; Rehler v. R. R., 28 N.Y. Supp., 286, and cases cited.
Reversed.