Appellant brought this suit to recover damages for personal injuries received by him while acting as an engineer in a wreck of a train on defendants' railroad.
The wreck occurred at night and was caused by the engine coming in contact with two cows lying upon the track at a place where the railway had been fenced by the defendants on both sides between two private crossings, without placing cattle guards at either entrance.
The negligence charged by plaintiff's petition was "in failing to provide proper and sufficient cattle guards, of which omission plaintiff had no knowledge or warning, and whereby the danger of running trains through the inclosure was increased, cattle being attracted into it," etc., and that "the decayed and rotten condition of the ties caused the engine to turn and to be thrown down the embankment, when if the ties had been reasonably sound they would have supported the engine, which could have been stopped on the ties."
The court charged the jury to find a verdict for the defendants.
We consider it unnecessary to refer to the evidence further than to say that it substantially corresponded with the case made by the plaintiff's petition. It is not claimed that the ties were not strong enough to support the engine and cars as long as they remained on the rails. The fact that they were not strong enough to support an engine running at the rate of twenty-five or thirty miles an hour when derailed was not evidence of negligence, as the court might very well inform the jury. The same thing may be said about the absence of cattle guards.
The provisions of the Revised Statutes upon that subject are copied into appellant's brief and read as follows:
"Art. 4240. Each and every railway company whose railway passes through a field or inclosure is hereby required to place a good and sufficient cattle guard or stop at the points of entering such field or inclosure, and keep them in good repair.
"Art. 4241. In case an inclosure or field through which a railway passes shall be enlarged or extended, or the owner of the land over *Page 171 which a railway runs shall clear and open a field so as to embrace the track of a railway, such railway company is hereby required to place good and sufficient, cattle guards or stops at the margins of such extended inclosures or fields, or such new fields, and keep the same in repair.
"Art. 4242. Such cattle guards or stops shall in all cases be so constructed and kept in repair as to protect such fields and inclosures from the depredations of stock of every description.
"Art. 4243. Gives the owner of any field or inclosure the right to construct or repair such cattle guards at the expense of the company, should it fail to do so.
"Art. 4244. Should any such company fail to construct the proper cattle guards and stops keep the same in repair as required by law, such company shall be liable to the party injured by such neglect for all damages that may result from such neglect, to be recovered by suit in any court having jurisdiction."
The only purpose had in view by the law in the construction of cattle guards is to protect inclosures. The law does not require railways to be fenced, nor does it require cattle guards to be put in merely because it has been fenced. If they are not put in the road would not be treated as fenced at all at that point, which is the only result that we can see should follow such all omission.
The liability to injury caused by coming in contact with animals trespassing on the road is one of the dangers incident to the operation of railways, and may be encountered inside of inclosures having cattle guards as well as outside.
The proposition that fencing on each side of the road without constructing cattle guards has a tendency to increase the danger seems to us to be entirely speculative.
The judgment is affirmed.
Affirmed.
Delivered March 6, 1891.
J.R. Burnet, for appellant, argued a motion for rehearing. The motion was refused. *Page 172