The opinion of the court was delivered by
Bennett, J.There are several grounds upon which the plaintiff seeks to recover beyond what was allowed him in the county court, and we will first consider that class of claims for damages, resting in the neglect or omission of the defendants, in not fencing their road.
• The case finds that the defendants located their road through the plaintiff’s farm, and commenced working in October, 1849, and that it was so far completed that they commenced running it in September, 1850; and that the defendants caused no fence to he built on their road until the 28th of April, 1851; and that the fence was not finished through the plaintiff’s farm until the forepart of June, 1851. The charter of the railroad company requires them “ to build and maintain a sufficient fence on each side of their railroad through its whole route, where a fence may be requisite for the owners or occupants of the adjoining land.” Though the *106charter prescribes in terms, no limitation as to the time in which the fences should be built, yet one must be fixed as near as may be, by construction.
The railroad act of 1850, made it the duty of all railroad companies, thereafter chartered, to fence their roads by the time they should be completed and in running order; and we think that, under the defendants’ charter, it is no more than reasonable to require the defendants to hatfe the fences built, at least, as soon as they shall commence running their road. This, both the policy of the laW and the reason of the thing requires; and this is but a reasonable construction of the defendant’s charter. If, then, this duty is not performed by the company within the time, they are chargeable with legal negligence.
Though we cannot say, as matter of law¡ that the defendants were bound to erect fences before or while they were constructing their road through any particular land holder’s premises, yet we can say, they must exercise their rights with a prudent regard to the rights of others; and if lacking in this duty, they are chargeable with negligence, and must answer for its consequences. What would constitute a prudent regard to the rights of others in one case, might not in another ; and each case must rest upon its own peculiar circumstances. No damages were claimed on trial for any injury done by cattle, or for want of fences subsequent to the fall of i860, but the road was run in September of that year, and not fenced till the last of April, 18ol. Damages in this case may have accrued to the plaintiff from a want of a prudent regard to his rights by the defendants ; and consequently they may be chargeable with negligence in not fencing their road, even before it was in a running condition. We cannot presume, as matter of law, that'damages resulting from such negligence, were included in the land damages assessed by the commissioners, although the final assessment of damages was not till the summer of 1851. Such damages, however, as should result to the land-holder from a proper construction of the road in a prudent manner, and with a due regard to the plaintiff’s rights, must be deemed to have been taken into account in the assessment of his land damages, and cannot be made the ground of recovery in this action. The commissioners are to assess such damages “ as are likely to arise,” that is, from a *107proper construction of the road, with a due regard to the rights of others. If, however, it can be shown in this case that damages which had arisen from the negligence of the defendants, in not building the fences in a proper time, were, in fact, included in the final assessment of the land damages, and such damages paid to the plaintiff, it would be a satisfaction of them. If then it is not shown that the damages claimed were in fact included in the land damages, the question of damages should go to the jury under proper instructions, and the right to recover must depend upon the question of negligence in failing to fence the road in a seasonable time, and this must be an open question for the jury, up to the time when, as matter of law, they were bound absolutely to have the road fenced, and an omission to do it after that time, is, in law, negligence.
We think the county court were right in holding that, the defendants were not entitled to recover for the damages occasioned by the workmen on the road, by reason of their leaving the bars down, or from other wrongful acts of the workmen. They were in the employ of men who had taken a job of the railroad company, and were their servants, and not the servants of the company ; and we think, at the present day, the law is well settled that, in such a case, you cannot go against the railroad company for the negligence of the servants of the contractors under the company.
There is no ground upon which the plaintiff can claim to recover damages for the injury done his meadow: The case finds, that the plaintiff gave to the workmen who had taken a job on the defendants’ railroad leave to take stone from a ledge upon his land; and by implication, a license was also given to the workmen to draw the stone across the plaintiff’s land to the railroad, if necessary. The case finds this was necessary, and that no unnecessary damage was done.
As it respects the small piece of land to dress the stone upon, it must be taken that such damages were included in the assessment of damages by the commissioners, provided there was a prudent and proper use of the land for that purpose, and the contrary is not pretended.
The judgment of the county court is reversed, and the cause remanded.