It appears by the evidence stated in the exceptions, that the defendants had the entire and exclusive use and management of the Portland, Saco and Portsmouth railroad, with all its structures, cars and engines, by their servants and agents, when the alleged injury occurred. They were liable therefore, in this form of action, for all damages sustained by any person, in consequence of the neglect of their agents or the mismanagement of their engines. R. S. c. 81, § 21; Yarborough & al. v. The Bank of England, *30916 East, 6; Mathews v. West Land. W. W. Co., 3 Camp. 403; Gibson v. Inglis, 4 Camp. 72; Smith v. B. & S. Gas Light Co., 1 Adolph. & Ellis, 526; Riddle v. The Prop. of Locks, &c., on Merrimack River, 7 Mass. 186; Foster & al. v. The Essex Bank, 17 Mass. 502, 503; Lowell v. Boston & Lowell Railroad, 23 Pick. 24; Harlow v. Humiston, 6 Cowen, 189; Beach v. Fulton Bank, 7 Cowen, 485; Hawkins v. The Dutchess & Orange Steamboat Co., 2 Wend. 452; Dater v. Troy Turnpike & Railroad Co., 2 Hill, 629; The Rector of the Church of Ascension v. Buckhart, 3 Hill, 193; Bailey & als. v. The Mayor of New York, 3 Hill, 351; 2 Kent’s Comm. 284.
It was proved that the plaintiff’s cow was killed upon this railroad, by the engine of the defendants, about one hundred rods westerly of the depot in Biddeford; that there was not any fence on the southern side of said railroad, for about ten rods easterly and three rods westerly of the depot; that Chestnut street, leading from the depot, southerly to Maine street, was the only road leading from the depot to Maine street; that there was not any fence across, or on either side of Chestnut street; and that the lands on either side of this street, were “ common and uninclosed, or vacant,” to the extent at least, of the deficiency of the fence upon the railroad.
To sustain his action, the plaintiff must prove negligence, wilful or otherwise, on the part of the defendants, and ordinary care on his own part; or if he did not exercise ordinary care, that this did not contribute to the alleged injury.
The only evidence of negligence or misconduct by the defendants, was the deficiency of the fence, before mentioned. Every railroad corporation is required by law to erect and maintain sufficient fences, on each side of the land taken by them for a railroad, where the same passes through enclosed or improved lands. Stat. 1842, c. 9, § 6. In this case the lands adjoining the railroad, where there was no fence, being common or vacant and uninclosed, and there being no evidence that they were improved, under existing laws, the defendants were not bound to fence against them ; and omitting to erect and main*310tain a fence on that portion of their road, cannot be imputed as negligence.
Note. — Wells, J. being a proprietor in the railroad took no part in this decision.But if required to fence the entire track, the defendants would not be responsible for killing the plaintiff’s cow, if she were wrongfully upon the adjoining close. The animal was not lawfully at large unless under permission from the town. R. S. c. 30, <§> 3, 5, 6. There was no evidence that the town gave any such permission, and none could be inferred, as an exemption from the operation of the genera] law. The burden was on the plaintiff to prove the permit, or establish the exemption ; and, as he failed to do either, he cannot recover for the loss which his own want of ordinary care and prudence has contributed to produce. Little v. Lothrop, 5 Greenl. 359; Kennard v. Burton, 25 Maine, 49; Rust v. Low, 6 Mass. 90; Lane v. Crombie & al. 12 Pick. 177; Howland v. Vincent, 10 Metc. 371; Hartfield v. Roper & al., 21 Wend. 615; Bush v. Brainard, 1 Cowen, 78; Brownell v. Flaglee, 5 Hill, 282; Rathburn & al. v. Payne & als. 19 Wend. 399; Chaplin v. Hawes, 3 C. & P. 554; Pluckwell v. Wilson, 5 ib. 375; Williams v. Holland, 6 ib. 23.
Admitting all the testimony offered by the plaintiff to be true, with all admissible inferences, he failed to make out his case in law and fact; and there being no other testimony offered at the trial, a nonsuit was properly ordered by the District Judge. Exceptions overruled.