that point between 12 and 1 o'clock that night, testified that that was the only train which passed there that night; that said train consisted of 19 freight cars and a caboose, going east; that between 12 and 1 o'clock, about a mile and half west of Syracuse, the train being running at about the rate of 15 miles per hour, the witness (one of them) standing looking out of the south door of the caboose, with his conductor's lantern in his hand, the train passed two animals, one dark and one gray; the gray one ran a hundred yards by the side of the freight cars, and as the way car passed her she jumped right in the centre of the track; that that was the last that witness saw of her; that the train passed the bridge very shortly after passing the animals, and where the gray mare jumped onto the track; that neither the engine nor any part of the train struck either of the animals, or any animal on that night; that the animals seemed greatly frightened, and ran for a considerable distance along and near the track before the train passed them. There was thus not only no evidence of the train having struck the animal, but the evidence of two witnesses that the train passed her without striking her.

OF

STATUTE RELA

Our statute (Comp. St. §§ 1, 2, c. 72), after providing that railroads shall be fenced, etc., provides as follows: "And so long as such fences and cattle-guards shall not be made after the time hereinbefore prescribed for making the same shall have PROVISIONS elapsed, and when such fences and guards, or any part TING TO FENCING. thereof, are not in sufficiently good repair to accomplish the objects for which the same, as herein prescribed, are intended, such railroad corporation and its agents shall be liable for any and all damages which shall be done by the agents, engineers, or trains of any such corporation, or by the locomotives, engines, or trains of any other corporation permitted and running over or upon their said railroad, to any cattle, horses, sheep, or hogs thereon." Again: "Any railroad company hereafter running or operating its road in this State, and failing to fence on both sides thereof against all livestock running at large at all points, shall be absolutely liable to the owner of live-stock injured, killed, or destroyed by their agents, employees, or engines, or by the agents, employees, or engines belonging to any other railroad company running over and upon such road, or there being."

The statutes of Illinois, Indiana, and Missouri, on the subject of the liability of railroad companies whose tracks are suffered to remain unfenced, for live-stock killed by their trains, are substantially the same as those of our own statute, above quoted; and the supreme court of each of those States, in the cases cited in the brief of counsel, has, upon facts quite similar to those of the case at bar, held that an actual ONLY WHEN ANI and direct collision by the engine or train, or some por- RUN OVER. tion of it, with the animal killed or injured is indispensable to a

OMISSION

FENCE.

PANY

ΤΟ

COM

LIABLE

MAL STRUCK OR

holding of liability on the part of the company. The reasoning of these cases rests chiefly upon the meaning of the words of the statute; that the language of the statute, making the company "liable for all damage which may be done by the agents, engines, or cars of such corporations to cattle, horses, or other stock," could not be extended to embrace damages done to themselves by such stock in consequence of fright, although such fright might be caused by the sight or sound of passing trains on such unfenced railroad. The opinion in the Missouri case is predicated in part also upon the object of the act declaring the liability in cases of damage to stock by the "agents, engines, or cars" of railroad companies whose tracks remain unfenced; such object being declared to have been "not exclusively for the benefit and protection of the owners of stock who were liable to suffer loss and damage, but also as a public regulation for the safety of passengers and the travelling public, who are exposed to danger and peril in case of colli

sion."

To these considerations the following may be added: One object which the legislature had in view in the passing of these provisions was to induce the railroad companies to fence their tracks and keep them fenced. It therefore sought to hold the owners of unfenced railroads absolutely liable for such damages to live-stock as only might proximately result from the unfenced condition of the railroad, and not for such as might be common to all railroads, fenced as well as unfenced. The statute of no State, to my knowledge, has prescribed the distance which the fence shall be from the track over which the trains pass. And, in point of fact, in the case of some of the best-fenced railroads, they are at some points very near; and any person of experience knows that it often occurs that horses and teams driven on the highway near a railroad track, but outside of the fence, become frightened at the sight and sound of passing trains, and by reason of such fright damage themselves, their drivers, and the vehicles to which they are attached. The liability of such animals to become thus damaged depends in no degree upon the fenced or unfenced condition of the railroad. Hence it is obvious that in declaring an absolute liability for damage to live-stock by trains in cases where the railroad should be suffered to remain unfenced as an inducement and incentive to railroad companies to fence their tracks, and thus protect the lives of the travelling public, as well as the property of the citizens of the country through which the railroad passes, from loss by collisions, the legislature only had in view such damage to live-stock as was practically confined to unfenced railroads, and not such as was common to all railroads, fenced as well as unfenced. Therefore, upon reason as well as upon authority, the case made by the plaintiff in the court below failed to establish a liability upon the rail

road company for the damage to the gray mare, and the district court should have told the jury so.

The judgment of the district court is reversed, and the cause remanded for further proceedings in accordance with law.

Failure to Fence-Under most Statutes Company not Liable unless the Animal was killed or injured by Contact with Moving Cars or Engine.See notes to Holder v. Chicago, etc., R. R. Co., 13 Am. & Eng. R. R. Cas. 570, and Croy v. Louisville, etc., R. R. Co., 19 Am. & Eng. R. R. Cas. 610.

EVANSVILLE AND TERRE HAUTE R. R. Co.

v.

MOSIER.

(101 Indiana, 597.)

It is not necessary for the plaintiff, in an action against a railroad company for killing cattle, to prove by positive evidence the place where the cattle entered, but it is sufficient if facts are proved from which the place of entry can be inferred.

The burden of proof, in an action against a railroad company for killing cattle, is on the plaintiff to show that the place where the cattle entered was not securely fenced; but where the railroad company asserts that the place was one which it was not bound to fence, then the burden is on it to establish that fact.

The general rule is that a railroad company is bound to fence private crossings, but this duty is not owing to the person for whose benefit the crossing is maintained.

FROM the Knox Circuit Court.

A. Iglehart, J. E. Iglehart, and E. Taylor for appellant.

ELLIOTT, J.-This case is here on the evidence. The appellee was the owner of two colts which were kept in a pasture adjoining the appellant's railroad-track. They escaped from the pasture, went upon the track, and were killed by one of the appellant's locomotives. The pasture was owned and used by the appellee in common with four other persons. There were two private crossings opening from it upon the track, and these were fastened by gates. The gates were about one-half of a mile apart; the south gate was used by the appellee, but the north gate was not. The colts entered the track from the north gate and were killed not far from the crossing. The gates were good ones and were usually kept shut, and when shut the track was securely fenced.

The contention that the plaintiff in such an action as this must prove by direct evidence the place where the animals entered upon

EVIDENCE AS TO

WHERE
ENTERED
RIGHT OF WAY.

the track cannot be maintained. It is true that the place of entry is the important question, but it is not true that it must STOCK be shown by positive evidence; it is sufficient if circumstances are proved from which the fact can be legitimately inferred. Indianapolis, etc., R. R. Co. v. Collingwood, 71 Ind. 476; Indianapolis, etc., R. R. Co. v. Thomas, 84 Ind. 194; 8. c., 11 Am. & Eng. R. R. Cas. 491; Louisville, etc., R. R. Co. v. Kious, 82 Ind. 357; Whitewater R. R. Co. v. Bridgett, 94 Ind. 216; s. c., 20 Am. & Eng. R. R. Cas. 443.

FENCES INSE-
CURE.

The plaintiff in such an action as this has the burden of showing that the place where his animals entered was not securely fenced; but, where the railroad company asserts that the place BURDEN was one which it was not bound to fence, it must affirmOF PROOF. atively establish that fact. Ft. Wayne, etc., R. R. Co. v. Herbold, 99 Ind. 91, and authorities cited; Baltimore, etc., R. R. Co. v. Kreiger, 90 Ind. 380; s.c., 13 Am. & Eng. R. R. Cas. 602. It was for the appellant, therefore, to show that the place where the animals of the appellee entered was one which it was not bound to fence.

The general rule is that railroad companies are bound to maintain fences at private crossings. Indiana Central R. R. Co. v. Leamon, 18 Ind. 173; Indianapolis, etc., R. R. Co. v. Lowe, 29 Ind. 545; Cincinnati, etc., R. R. Co. v. Ridge, 54 Ind. 39; Indianapolis, etc., R. R. Co. v. Thomas, supra, Baltimore, etc., R.R. Co. v. Kreiger, supra; Railroad Co. v. Cunnington, 39 Ohio St. 327; s.c., 13 Am. & Eng. R. R. Cas. 529.

ING. DUTY ΤΟ

FENCE.

To this general rule there are exceptions. The duty to fence is not owing to one who has undertaken to maintain the fence, nor to PRIVATE CROSS- one for whose benefit the private crossing is maintained. Terre Haute, etc., R. R. Co. v. Smith, 16 Ind. 102; Indianapolis, etc., R. R. Co. v. Shimer, 17 Ind. 295; Bond v. Evansville, etc., R. R. Co., 100 Ind. 301. The decision in the case last cited controls here, for, although the appellant used the south crossing, still the north one was maintained for the benefit of those with whom he was united in interest, and it is impossible to sever their interests. All were interested in the crossing, and no one of them can maintain an action for a loss resulting from the failure to keep the gate constantly closed. The duty of the railroad company to those for whose benefit it permits the crossing to be maintained is very different from that which it owes to other persons and the public. So far as concerns those for whose benefit the private way is maintained, its duty does not extend so far as to require it to exercise constant vigilance to keep the gate closed.

Judgment reversed, with instructions to sustain appellant's motion for a new trial.

Killing Stock-Private Crossing.—While a railroad company owes to third persons and to the public a duty to keep secure fences at private crossings,

it owes no such duty to one whom it permits to construct and maintain a private crossing for his own benefit, and is not liable to such person for injury to his stock caused by a gate being left open at such crossing by a third party. Louisville, N. & C. R. R. Co. v. Goodbar* (Advance Case, Indiana, September, 1885)."

Duty of a Railroad Company as to Fencing at Private Crossings.-See note to Long v. Central Iowa R. R. Co., 19 Am. & Eng. R. R. Cas. 541.

MINNEAPOLIS AND ST. LOUIS R. R. Co.

v.

BLAIS.

(Advance Case, Minnesota. July 23, 1885.)

Reasonable care and diligence do not require a railway company, unless under exceptional and extraordinary circumstances, to remove the natural accumulations of snow and ice from cattle-guards.

APPEAL from an order of the district court, Rice county.
Geo. Batchelder for respondent, Francis Blais.

J. D. Springer and Geo. N. Baxter for appellant.

BUTORY NEGLI

MITCHELL, J.-The plaintiff and his son were hauling timber to a place about half a mile distant from defendant's road. After dark, and about 6 o'clock in the evening of January 29, 1883, plaintiff having discharged his load, left his team unhitched FACTS. CONTRIand unguarded at the side of the highway, and went to GENCE help his son unload at a point some rods distant, and out of sight of his own team. While he was absent his team started and ran down the highway, and on coming to the railway crossing turned off the highway, crossed over the cattle-guard, and, following down defendant's railway-track, came in collision with a passing train and sustained the injuries complained of. What enabled the team to cross over the cattle-guard was the fact that it was filled with snow and ice up to the level of the track. To leave a team of horses untied in such a place at so late an hour, and in winter, when they are especially liable to become restive, would seem to us exceedingly careless conduct. But we shall assume that this was a question for the jury.

The remaining question is whether it was negligence on part of the railroad company to allow the cattle-guard to become and remain filled with ice and snow. So far as appears, this was an ordinary highway crossing, and the highway was used the same as, and not differently from, any ordinary country road in the winter season. It also appears that this was an unusually severe winter, the railroads having been much obstructed by frequent and severe