33. An owner of mules killed upon the track of a railway by an engine and cars, cannot recover therefor, even where they escaped from a properly fenced enclosure without his knowledge, and were on the highway at its intersection with the railway.47 SECTION II. Against what Cattle the Company is bound to fence. 1. At common law every owner bound to restrain his own cattle, 2. And if bound to fence against others' land, it extends only to those cattle rightfully upon such land. 3. Company may agree with land-owner to n. 5. Review of cases upon this subject. neglect. 5. Comment upon the last case. 6. Statement of case in Massachusetts. 7. Further comment on the last case. Rule of responsibility as held in Kentucky. 8. 9. Rule laid down in Ohio. 10. Rule in Indiana. 11. Distinction between suffering cattle to go at large and accidental escape. § 128. 1. At common law the proprietor of land was not obliged to fence it. Every man was bound to keep his cattle upon his own premises, and he might do this in any manner he chose.1 2. And where, by prescription or contract, or by statute, a * land proprietor is bound to fence his land from that of the adjoining proprietor, it is only as to cattle rightfully in such adjoining land.2 The same rule has been extended to railways.3 And it has been considered in some cases that where no statute, in terms, imposes upon railways the duty of fencing their roads, that they are not bound to fence, and that the owner of cattle is 47 North Penn. Railw. Co. v. Rehmon, 49 Penn. St. 101. 1 Dovaston v. Payne, 2 H. Bl. 527; Rust v. Low, 6 Mass. 90, 99; Jackson v. Rut. & Bur. Railw., 25 Vt. 157, 158; Wells v. Howell, 19 Johns. 385; Manchester, Sh. & Lincolnsh. Railw. v. Wallis, 14 C. B. 243; s. c. 25 Eng. L. & Eq. 373; Morse v. Rut. & Bur. Railw., 27 Vt. 49; Lafayette & Ind. Railw. v. Shriner, 6 Porter (Ind.), 141; Woolson v. Northern Railw., 19 N. H. 267; Indianapolis & Cin. Railw. v. Kinney, 8 Ind. 402. But in Pennsylvania the common-law rule in regard to keeping one's cattle at home is reversed by statute, and improved lands must be fenced in order that the owner may recover for damages done by stray cattle. Gregg v. Gregg, 25 Legal Intel. 372, Nov. '68. Same cases above; Lord v. Wormwood, 29 Maine, 282. 3 Ricketts v. East & West India Docks & Birmingham J. Railw., 12 C. B. 161; s. c. 12 Eng. L. & Eq. 520 ; Perkins v. Eastern Railw. Co., 29 Maine, 307; Towns v. Cheshire Railw., 1 Foster, 363; Cornwall v. Sullivan Railw. 8 Foster, 161. bound to keep them off the road, or liable to respond in damages for any injury which may be caused by their straying upon the railway,1 and as a necessary consequence cannot recover for any damage which may befall them.5 *3. But where a railway is not obliged to fence unless requested Vandegrift v. Rediker, 2 Zab. 185; Tonawanda Railw. v. Munger, 5 Denio, 255; s. c. affirmed in error, 4 Comst. 349; Clark v. Syracuse & Utica Railw., 11 Barb. 112; Williams v. Mich. Central Railw., 2 Mich. 259; New York & Erie Railw. v. Skinner, 19 Penn. St. 298. Brooks v. New York & Erie Railw., 13 Barb. 594. In this case it was held that the statute requiring railways to maintain cattle-guards at road-crossings did not extend to farm-crossings. So too it has been held that the statute requiring gates or cattle-guards at road-crossings does not extend to street-crossings. Vanderkar v. Rensselaer & Sara. Railw., 13 Barb. 390. In Central Military Track Railw. v. Rockafellow, 17 Illinois, 541, the rule is laid down in regard to cattle straying upon a railway, that they are to be regarded as wrongfully upon the road, and the owner cannot recover for an injury, unless caused by wilful misconduct or gross negligence. The court say, "A railroad company has a right to run its cars upon its track without obstruction, and an animal has no right upon the track without consent of the company, and if suffered to stray there, it is at the risk of the owner of the animal." And in Illinois Central Railw. v. Reedy, 17 Illinois, 580, the same court say, "Animals wandering upon the track of an unenclosed railroad, are strictly trespassers, and the company is not liable for their destruction, unless its servants are guilty of wilful negligence, evincing reckless misconduct."—"The burden of proof is on the plaintiff to show negligence; the mere fact that the animal was killed" is not enough. In Munger v. Tonawanda Railw., 4 Comst. 349, it is held, that cattle escaping from the enclosure of the owner and straying upon the track of a railway, are to be regarded as trespassers, and no action can be maintained against the company if the negligence of the plaintiff concurred with that of the company in producing an injury to the cattle while in that situation; and that the law charges the owner of cattle, in such case, with negligence, although his enclosures are kept well fenced, and he is guilty of no actual negligence, in suffering the cattle to escape. And it was accordingly held, that the company was not liable, under such circumstances, for negligently running an engine upon and killing the plaintiff's cattle. The same principles substantially are maintained in the same case, 5 Denio, 255. And it is further held here, that where the general statutes of the state allow towns to prescribe what shall be a legal fence, and when cattle may run at large in the highway, and which forbid a recovery for a trespass by cattle lawfully in the highway, by one whose fences do not conform to the town ordinance upon the subject, this will have no application to railways, and that cattle allowed to run in the highway by such ordinance, and which, while so running in the highway, enter upon the lands of a railway at a road-crossing, where there is no obstruction against the intrusion of cattle, are to be regarded as trespassers. by the land-owner, and had agreed with such owner that they should not fence against his land, and a cow placed in such lands strayed upon the track of the road, and was killed by a train, it was held the owner of the cow, having by his own fault contributed to the loss, could not recover of the company. 6 4. In a late case in Connecticut, it was decided that where cattle are at large without the fault of the owner, and go upon the track of a railway, and are injured through the negligence of the company in the management of their train, the owner is not precluded from recovering damages, because the cattle were trespassers upon the railway. In order to preclude the plaintiff from recovery in such case, he must have been guilty of express, and not merely of constructive, wrong in suffering the cattle to go at large. * 5. We could not dissent from the propositions maintained in the preceding case, notwithstanding some hesitation in regard to the proper construction placed by the court upon the facts found in the case. The law of every case must be judged of by the facts which the court assume to be established in deciding it. It would be as unfair to criticise the decision of a court, upon a new construction of the facts, as it would upon a different state of the testimony at a different trial. The decision of a court is good or bad upon the facts assumed by the judge, and no fair-minded man will attempt to escape from the weight of an authority by assuming or 6 Tower v. Providence and Worcester Railw., 2 Rhode Island, 404. 7 Isbell v. New York & New H. Railw. Co., 27 Conn. 393. The courts in Indiana, in hearing cases in error, feel bound to presume that the court below applied the testimony correctly in determining localities and geographical boundaries, and especially in matters affecting jurisdiction, as the local courts would more naturally understand these questions than another less familiar with the facts. Ind., &c. Railw. Co. v. Moore, 16 Ind. 43; Same v. Snelling, id. 435. By the law of Indiana, before the statute of 1859, it must appear, in order to recover damages for animals killed or injured by a railway company, that it occurred through the negligence of the company, and without the immediate fault of the owner. Wright v. Ind., &c. Railw. Co., 18 Ind. 168; Toledo & Wabash Railw. Co. v. Thomas, id. 215. The act of 1859 is prospective only. Ind., &c. Railw. Co. v. Elliott, 20 id. 430. It was here made a question whether a statute awarding damages to the owners of animals killed or injured by the rolling stock of any railway, applied equally to freight as to passenger trains, and it was held that it did. The wonder is that any such question should ever be made. We never before supposed there could be any doubt in regard to it. even proving, that the judge took a mistaken view of the facts. It is merely an attempt to balance one assumed blunder of the court, by showing that they fell into another in an opposite direction. A decision is good upon the ground upon which it is placed, or it is wrong upon every ground. 6. We have said thus much in order to state that the case of Browne v. Providence, Hartford, and Fishkill Railway Company, which decides that a railway corporation, which is obliged by law to make all needful fences and cattle-guards upon the sides of its track, is liable for injuries by its engines to cattle straying at large through the land of a stranger upon its road, by reason of its negligence in not erecting fences and cattle-guards as required by statute, seems clearly to have assumed a different rule of responsibility, as against railway companies, from that which has ordinarily been before applied to all lawful business, as between adjoining proprietors. Indeed, the court distinctly assume the position, that the common-law responsibility imposed upon adjoining land-owners is not sufficient, and that railway companies must be held to a higher degree of responsibility, "on account of the new circumstances and condition of things arising out of the general introduction and use of railways in the country," and that the requirements of the railway companies in regard to fencing and cattle-guards were designed for the safety of the *public, and for the protection of all domestic animals, whether rightfully or wrongfully out of their owners' enclosure." 66 7. This decision certainly has the credit of meeting the question involved fairly, and of wrestling manfully with its difficulties, and of placing it upon the only plausible ground, that the business was so dangerous to the public that it merited a more extended. construction, where railways are required to fence their roads, than where other land-owners were required to do the same thing. We had always supposed that railways were required to fence their roads for the protection of their passengers, and of persons and animals rightfully in the highway or the adjoining lands. And we have yet to learn any sound principle upon which they can fairly be required to guard against injuries to persons or animals wrongfully upon their track, by making permanent erections to preclude such persons or animals from coming there. It is true, unquestionably, that railway companies, in common with all others, are 8 12 Gray, 55. Ante, § 127, pl. 21, and notes. bound to avoid doing an injury to any one, if it can be avoided at the time, whether such person or his property be rightfully or wrongfully in their way; but that this duty extends to previous precautions against doing injuries to persons wrongfully upon their track, either personally or by their property, is more than can fairly be maintained, as it seems to us, unless railways are to be outlawed in this respect. Every one in the exercise of a lawful business has the right to expect, and to conduct his business upon the expectation that others will also perform their duty, and if they do not, that they will be required by the administrators of the law to take the natural consequences of such neglect, provided that even when in fault, in exposing themselves or their property to damage and loss, from the lawful pursuit of lawful business by others, they be not wantonly damaged by such others, but only from necessity. And this is all which we understand to have been decided by the case of Isbell v. New York and New Haven Railway Company. And in the later case in Massachusetts, Chapman, J., seems to assume the same ground, and it is the only one in our judgment fairly maintainable. 8. A railway company which is not bound to fence its track is not liable for injuries inflicted by its engines and trains upon cattle straying upon the track of the road, unless such injury was caused by the wanton and reckless negligence of the company through its agents and servants.10 9. It was held in Ohio,11 that where a land-owner granted to the company the right of way of a given width, and covenanted to maintain the fences on both sides, and subsequently conveyed the land, it was held that the grantee of the land was so far affected by his grantor's covenant to maintain the fences on the line of the railway that he could not visit any consequences upon the company resulting from its not being performed, but must bear them himself. 10. Where the owner of cattle was not in the habit of suffering his cattle to go at large on the railway track, and was not in a position to take any steps to avert the danger they might be in from the passing trains of the company, the presence of the cat 9 Rogers v. Newburyport Railw. Company, 1 Allen, 16. 10 Lou. & Frankfort R. Co. v. Ballard, 2 Met. (Ky.) 177. 11 Easter v. Little Miami R. Co., 14 Ohio N. S. 48. See also McCool v. Galena & Chicago Union R. Co., 17 Iowa, 461. |