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The Louisville, New Albany and Chicago Railway Company v. Phillips.

R. Co., 9 Western Rep. 438; Chicago, etc., R. R. Co. v. Hedges, 105 Ind. 398; Bellefontaine, etc., R. R. Co. v. Snyder, 18 Ohio St. 399; Graves v. Thomas, 95 Ind. 361 (48 Am. Rep. 727). The doctrine of these cases is in harmony with the rule that has long prevailed and has been again and again enforced, and that is, that where the railroad company licenses the public to make a general use of its track it can not treat a citizen who walks upon it as a trespasser. Of the great number of cases asserting this principle we cite only a few: Davis v. Chicago, etc., R. W. Co., 58 Wis. 646; Murphy v. Chicago, etc., R. R. Co., 38 Iowa, 539; Bennett v. Railroad Co., 102 U. S. 577; Kay v. Pennsylvania R. R. Co., 65 Pa. St. 269; Campbell v. Boyd, 88 N. C. 129 (43 Am. Rep. 740).

We conclude our discussion of this branch of the case by a quotation from the opinion of the court in Kansas Pacific R. W. Co. v. Pointer, 9 Kan. 620: "If," said the court, referring to the plaintiff, "he should show that the place where the injury occurred was on a public street, either in law or fact, he would not be such a trespasser as would relieve the railway company from exercising reasonable and ordinary care and diligence towards him. In fact, he would not be a trespasser at all. The railway company in such a case would be bound to run its trains with reference to him, and to every other person who might be rightfully occupying the street. Such persons would have the same right to be on the street as the railway company. In fact, in this case the legal right. of the railway company, and that of the public, to use this ground as a street, seem to be about equal. ** The public used this ground for a street, however, long before the railroad was built. If the plaintiff and the railway company each had a right to use said ground, then it was incumbent on each alike to use ordinary care and diligence to prevent and avoid injuries."

The appellee, although not a trespasser in walking along the track laid in the highway, was, nevertheless, bound to ex

The Louisville, New Albany and Chicago Railway Company v. Phillips.

ercise care to protect himself from injury. He had a right to walk on the track as part of the highway, but it was his duty to use a degree of care proportioned to the situation and circumstances, and this care extends to the condition of the track and to the running of the trains. We are not inclined to adopt the view that the rights of travellers and the railroad company are equal, although they are mutual; for we think that as to the right of way for the running of trains the rights of the company are paramount. It is, therefore, the duty of one who walks upon a track to use reasonable care to discover and avoid danger. He has no right to go upon the track, even though it is in a public highway, expecting that the company will check its trains to make way for him; on the contrary, he must exercise vigilance, and that vigilance must be correspondent to what he is bound to know is the paramount right of the railroad company. In this case we think the evidence sustains the finding of the jury that the company was negligent and the appellee was not. It must not be forgotten that the appellee was fastened to the track and could not leave it to avoid the coming train; he was powerless to avert the danger even had he seen it in time to have left the track. Nor must it be forgotten that it was through the negligence of the company that the track which traversed the street was made unsafe. It may be, even where the company changes the face of a highway for its own convenience, that it is not bound to make it safer for travellers upon it than its use for a railroad will permit. It may be, too, that one who walks upon it is bound to know that it is a railroad track, and is not safer for use for passage than the object to which it is devoted will allow. But, granting all this, there may still be a recovery, for the evidence satisfactorily shows that the appellee was using such care as even a prudent and careful person of adult age would have used in making his way along the track, that the unsafe condition of the track was due to the negligence of the company, and that it was also negli

Hunt v. The Lake Shore and Michigan Southern Railway Company.

gent in managing its train. The case is an unusually strong one, for there was double negligence on the part of the company.

There is, perhaps, a variance between the allegations of the complaint, as to the precise character of the defect in the track, and the evidence, but the variance is not a material

one.

Under our statute a verdict can not be set aside for such a variance. R. S. 1881, sections 391, 392, 393.

This is not a case where the plaintiff declares on one theory and gives evidence upon another, so that the cases of Chicago, etc., R. R. Co. v. Bills, 104 Ind. 13, Mescall v. Tully, 91 Ind. 96, and cases of like character, do not apply.

We have not stopped to inquire as to the effect of the appellee's tender age, for we think he is entitled to a recovery if bound by the same rules as an adult person.

We have disposed of all the questions that the record properly presents, and do not deem it necessary to notice in detail the phases in which they are presented. Judgment affirmed.

Filed Oct. 12, 1887.

No. 13,604.

HUNT v. THE LAKE SHORE AND MICHIGAN SOUTHERN

RAILWAY COMPANY.

RAILROAD. Private Farm Crossings. Railroad Company not Liable for Injuries to Animals Going Upon Track at Such Points.-Statute.-Under the acts of April 8th and 13th, 1885, a railroad company is not liable, in the absence of negligence, for the injury or killing of animals going upon its track through gates at private farm crossings, whether such crossings were constructed prior to those acts, or under the power given

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Hunt v. The Lake Shore and Michigan Southern Railway Company.

by the first section of the act of April 8th, or since the passage of those acts. STATUTE.-Constitutional Law.-Fifth Section of Act of April 13th, 1885, Constitutional.-The 5th section of the act of April 13th, 1885, which provides for the fencing of rights of way by railroad companies, the construction of cattle-guards, etc., is valid and constitutional, being sufficiently connected with the subject as expressed in the title. SAME.-Construction of.-In the construction of statutes the intention of the Legislature must govern, and, in ascertaining that, the courts will look to the letter of the statute, to the statute as a whole, to the circumstances under which it was enacted, to the old law, if any, to the mischief intended to be remedied, and all like matters, and will, as far as practicable, make such application of the provisions of the statute as will best promote the object of its enactment.

From the La Porte Circuit Court.
J. H. Bradley, for appellant.
J. H. Baker, for appellee.

ZOLLARS, C. J.-The material facts in the case, as stated in the pleadings, and found specially by the court below, are these: More than twenty years before the cause of action, as relied upon by appellant, accrued, the appellee railway company, by appropriate condemnation and appropriation proceedings, under the statute then in force, acquired a right of way through the lands then and now owned by B. C. Bowell, and constructed its railway thereon. On the lands of Bowell there is a farm crossing and two gates, which were constructed by the railway company about twenty years ago for his use and convenience, and which have been kept in repair by the railway company since their construction, without any contract or agreement on its part so to do.

Appellant is, and for some years has been, the owner of land adjoining that owned by Bowell. These tracts of land were separated by a partition fence sufficient to turn live stock. On the night of the 23d of March, 1886, appellant's horses were upon his pasture land. On that night a portion of the partition fence was thrown down by a storm, and three of the horses went through one of the openings on to the land

Hunt v. The Lake Shore and Michigan Southern Railway Company.

of Bowell, and from there through one of the farm gates, which had been left open by some unknown person, on to the railway, and were there killed by a train of appellee's cars. The railway through the land of Bowell was securely fenced at the place where, and at the time, the horses entered upon it, except in so far as the leaving of the gates open at the time and in the manner above stated rendered it insecurely fenced.

Upon the foregoing facts the court below concluded as a matter of law that appellee is not liable, and rendered judgment accordingly. From that judgment appellant prosecutes this appeal, and claims that the court below erred in its conclusions of law, and in its rulings upon the pleadings, which presented the same question.

The liability of the railway company, under the facts pleaded and found by the court, is dependent upon the construction, scope and effect to be given to the acts of April 8th and 13th, 1885. Acts 1885, pp. 148, 224.

Acts were passed by the Legislature in 1852, 1853 and 1863, making railway companies liable for animals killed upon their tracks. 1 R. S. 1852, p. 426; 1 G. & H., p. 522; 1 R. S. 1876, p. 751.

The first section of the act of 1863 was amended in 1877, but in no regard material here. Acts 1877, Special Session, p. 61.

The act as so amended was carried forward into the revision of 1881. R. S. 1881, section 4025, et seq. In each of the acts there was a section providing that the act should not apply to any railway "securely fenced in" and the fences properly maintained by the company. Such was the statute prior to the acts of 1885.

The necessity resting upon railway companies to construct and maintain fences in order to escape the liability imposed by the statutes prior to those of 1885, the sort of fences required in order to escape such liability, the localities where fences might be dispensed with without incurring such liability, and the liability of such companies where animals

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