The question made'by this record is, whether a railroad company is bound, under the law, to fence in or place guards around and along a cut or excavation through which its track runs, when there is a street or road running par • allel with the railroad.
It is insisted by-the eminent counsel who argued this case for plaintiff in error, that a railroad company owes this duty to the public, and they cite as authority to sustain this position, sections 706 and 707 of the Code. These sections are taken from the acJ‘ of 1838, and when viewed, it will be seen that they refer alone to crossings, where the railroad crosses public or private ways, est ablished pursuant to law. There they are required to build suitable bridges and make proper excavation^ or embankments according to the spirit of the road lawvti: 'The crossing includes the width of the land on both sides of the road allowed by *613charter or appropriated by the company therefor, and for-as many feet beyond each way as is necessary for a trav-' eler to get on and off the crossings safely or conveniently.
. We are quite clear that these sections do not apply to a case like the present, nor do we know of any law which imposes a duty or obligation on railroad companies of this state to fence in or place guards along their roads where there may be cuts or embankments, notwithstanding a public road may run parallel with such railroads.
So we think that the declaration of the plaintiff failed to make a case against the defendant, and the judgment of the court below sustaining a demurrer thereto must be affirmed.