The only question for our decision is, whether the defendants have any legal ground of exception to the instructions that were given to the jury. And we are of opinion that they have not.
The bill of exceptions shows that by the law of Connecticut, where the plaintiff’s injury was sustained, the defendants were bound to make all needful fences, culverts and cattle-guards, by the sides of their road, and that cattle were not allowed to go at large on the highway ; and that the plaintiff’s cattle, having strayed into the highway, without the knowledge or fault of any one, went therefrom, across an unenclosed door-yard owned by a third person, upon the defendants’ road, at a place where a fence or barrier was necessary to prevent their going upon it, but where there was no such fence or barrier, and were killed by the defendants’ engine.
The defendants place their defence on the ground that they were not bound to fence against cattle unlawfully on the highway, or unlawfully in the door-yard from which the plaintiff’s cattle went upon their railroad ; that the law on which the plaintiff relies imposes on them only the common law duty of the owners of adjoining lands, namely, to fence against cattle rightfully on such lands. The plaintiff denies that the common law is to be applied to this case, it being superseded by the state law in question, the purpose of which law is to protect all cattle, whether trespassers or not, and whether they belong to the owner of the adjoining land or to others. This case is to be decided by that law, of which we have no further judicial knowledge than is given by the terms in which the bill of exceptions states it.
Several of the state courts have decided that statutes, requiring railroad corporations to make fences on the sides of their roads, impose on them only the common law duty, and subject them only to the common law liability of adjoining landowners, *59according to the position taken in this case by the defendants. A contrary decision was made by the New York court of appeals, in Corwin v. New York Sf Erie Railroad, 3 Kernan, 42, which sustains the position taken by the plaintiff. So where an act of parliament required a railway company to keep gates across its road, and keep them constantly closed; and horses strayed from their owner’s field into the highway, and thence went upon the railway through an open gate which the com pony was required to keep shut, and were killed by a railway train; it was decided that the company was liable in damages to the owner. Patteson, J. said: “ The act directs that the gates shall be kept constantly closed ; and I think that imposes an obligation to keep them closed as against everything, whether straying or passing ; but at all events the horses were on the road lawfully as against the company.” Fawcett v. York North Midland Railway, 16 Ad. & El. N. R. 618. And in an earlier case, which was an action against a railway company for killing the plaintiff’s sheep, by driving an engine over them, Baron Parke said : “ If the cattle had escaped through defect of fences which the company should have kept up,- the cattle were not wrongdoers, though they had no right to be there ; and their damage is a consequent damage from the wrong of the defendants in letting their fences be incomplete or out of repair, and may be recovered in an action on the case.” Sharrod v. London & North Western Railway, 4 Exch. 587.
In view of the recent origin of railroads, and of the dangers that attend their operations^ by means of steam, which was never used on highways as a motive power, we cannot think that the law, by which these defendants were bound to make all needful fences and cattle-guards by the sides of their road, was intended to hold them only to the common law duty and liability of the owners of adjoining lands under the old order of things; but we are of opinion that it was intended to be applied to “ the new circumstances and condition of things arising out of the general introduction and use of railroads in the country; ” (3 Kernan, 47;) that it was designed for the safety of the public and for the protection of all domestic *60animals, whether rightfully or wrongfully out of their owner’s enclosure. We therefore adopt, and apply to this case, the doctrine of the cases above cited, and not of those on which the defendants rely. See a collection of the decisions on this subject in Redfield on Railways, c. 20, and Pierce on Railroads, c. 15.
What negligence of the plaintiff would have prevented his recovery of damages is not now a question. The jury have found that no negligence of his caused or contributed to cause his injury, but that it was caused solely by the neglect of the defendants to fence their road, and judgment is to be entered on their verdict.
Since ordering judgment, we have had the satisfaction of finding that a like determination had previously been made by the court of errors of the State of Connecticut. Isbell v. New York Sf New Haven Railroad, 27 Conn. 393.
Exceptions overruled.