35 S.E. 621 | N.C. | 1900
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,
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,
Here the negligent method of keeping up the fence is alleged as (374) the direct cause.
This case differs from Morrison v. Cornelius,
Reversed.