The plaintiff in error brought this action in a justice of the peace court of Crook county against the defendant in error to recover damages for the killing of a bull upon its tracks. Judgment was recovered in justice court, whereupon an appeal was taken by the defendant to the district court. The plaintiff filed an original petition in that court which was demurred to, and upon hearing, the demurrer was sustained. The plaintiff electing to stand upon his petition judgment was entered for the defendant. The plaintiff brings the case here on error.
1. The plaintiff in error assigns as error the denial of his motion to dismiss the appeal. The appearance was special *496for the purpose of making súch motion. We need not, however, discuss the question further than to say that if there was any merit in his motion the error in denying it becomes immaterial because the plaintiff thereafter filed a petition as upon the commencement of a new case, thereby invoking the original jurisdiction of the court. (Reedy v. Gift, 2 Kan., 392; 24 Cyc., tit. “As waiver of objections to proceedings for appeal,” 694, also p. 723, and cases cited; 12 Ency. P. & P., 816, and cases there cited.)
2. It is alleged in the petition that defendant is and has been a corporation and for many years' the owner of and engaged in operating- its line of road in and through Crook County, Wyoming-, and that plaintiff is and for many years has been the owner of a large tract of land on either side of said road in said county, and of a large number of cattle which ranged and pastured upon said land. That in the operation of said road the defendant caused to be propelled over its tracks both night and day a large number of trains, both passenger and freight, and often at the rate of 30 to 50 miles per hour. That in 1893 the defendant constructed a good and sufficient fence along its right of way over and through plaintiff’s land and that he relied upon defendant keeping said fence in repair. That for several weeks prior to the time the bull was killed defendant had negligently permitted the fence to get out of repair, so that it was not sufficient to prevent said bull or live stock from straying upon its right of way and being killed, all of which was known to defendant. That in consequence of such negligence plaintiff’s bull on or about August 18, 1905, strayed on to defendant’s track and was killed by being run against by defendant’s engine and was so killed by reason of defendant’s negligence in failing to keep its fence in sufficient repair to prevent stock from entering- the right of way. The foregoing sets out all of the allegations of negligence upon which plaintiff predicates his right to recover.
There was no law in this state at the time of the injury complained of requiring railroads to fence their right of *497way. Such a law has since been enacted. (Chap. 84, S. L. 1907.) Cattle and certain kinds of live stock have always been permitted to run at large. We have now and had then a statute which defines a lawful fence. (Sec. 1973, R. S. 1899.) This section has reference to what is termed a “lawful enclosure.” It is provided that unless the fence comes up to the requirements there prescribed it is not a lawful fence, and anyone may have a right of action for damages resulting from injury to his live stock from such illegal fence. The injury for which plaintiff sought damages was not the result of the animal coming in contact with, nor was the animal killed at, the fence. The statutory or common law right to recover damages for injuries to live stock coming in contact with improperly constructed or negligently maintained fences is not, therefore, involved in this case. Nor, in the absence of statute, was the defendant required to fence its right of way in order to avoid liability solely on the ground of the non-existence of such fence. Its liability must be determined upon the principles' of the common law. (16 A. & E. Ency. Law, 498, and cases there cited.) By those principles the right of action rested in the negligence of the defendant, and such negligence is never presumed; it must be alleged and proved. (17 Ency. P. & P., 565, and cases cited.) The fact that the animal was killed by the defendant’s engine is not sufficient unless coupled with allegations showing that it was the result of negligence in operating the engine or train on the part of the defendant and its employees. (Schenck v. U. P. Ry. Co., and Clark et al., Receivers, 5 Wyo., 430.) No allegations of that kind appear in the petition, nor does it appear that the rate of speed at which the train was running at the time the animal was killed was unusual, reckless or dangerous. The allegation is that the fence was in bad shape; that defendant, though Raving knowledge thereof, had failed to repair it, and that by reason thereof the animal strayed through the fence on the track and was killed. The pleader has designated as the proximate cause of the killing the *498failure to keep the fence in repair, but no contractual duty either to build or keep it in repair so as to obstruct ingress to its right of way is alleged nor was such duty imposed by statute — nor was the failure to keep the fence in repair in the absence of such a statute negligence per se. The rule is stated in C. C. & C. R. R. Co. v. Elliott, 4 O. St., 474, where it is said: “The bare fact that a railroad is unenclosed, there being no statute requiring it to be fenced, does not, in general, render the railroad company liable to pay for animals straying upon the track and killed by a train— such want of fencing being, in general, only a remote cause of the loss.”
In Crary v. C. M. & St. P. Ry. Co. (So. Dak.), 100 N. W. Rep., 18, it was held upon the facts that the defendant was under no obligation to construct a fence along its right of way at the place where the animal was killed. It is there said: “Whether, therefore, the fence was sufficient or insufficient to restrain the plaintiff’s stock is not material-in this case, for, if the railroad company was not required by law to fence its right of way, it was not bound to construct or maintain any such fence, and the fact that it did construct a fence does not estop it from showing that the law did not require the same, and that the plaintiff as lessee had no right to assume that the company would maintain the fence in good repair.”
In Stevenson v. Railway Co., 35 La. Ann., 498, the plaintiff sued for the value of six mules alleged to have been killed by the defendant’s train through the carelessness and negligence of its employees. The court said: “Plaintiff contends that the proof of the destruction of his property by the trains of the company throws upon the defendant the burden of proving justification or want of negligence. But he has signally failed to refer us to any authority either of law or jurisprudence, in support of this proposition * * *. Plence we recognize the rule that in such suits for damages the plaintiff must make his case certain, and that the burden is upon him to prove that'the alleged injury to his property *499was the result of negligence or carelessness of the defendant or its employees.” In O. A. & M. R. R. Co. v. Miles, 76 Va., 773, the court said: “It is simply alleged that the animals were killed by being run over by the trains of the defendant. * * * In a case such as this the proper inquiry always is, whether the agents of the company exercised reasonable and proper care in running their trains to avoid injury to the property of the plaintiff. 'And unless the injury is alleged and proven to have been caused by their negligence or misconduct, the action cannot be sustained.” The Supreme Court of Florida said in S. F. & W. Ry. Co. v. Geiger, 21 Fla., 669 (58 Am. Rep., 697), after an exhaustive review of the question: “Independent of any legislation on the subject, we do not think that proof of the mere killing, independent of locality, or some other circumstance which shows that it would not have resulted if reasonable care had been taken, or some omission of duty, as a failure to blow the whistle for the purpose of scaring the cattle off, is prima facie evidence of negligence upon the part of the company.” The following cases are there cited in support of that statement, viz.: B. & M. R. R. v. Wendt, 12 Neb., 76; Schiner v. R. R. Co., 40 Ia., 337; Bethje v. R. R. Co., 26 Tex., 604; Walsh v. R. R. Co., 8 Nev., 110; R. R. Co. v. Means, 14 Ind., 30; McKissock v. R. R. Co., 73 Mo., 456; R. R. Co. v. McMillan (Ohio), 7 A. & E. R. Cases, 588.
It may be conceded, and this court has held, that cattle upon the open range which stray upon and depasture the unenclosed land of a person other than their owner are not trespassers to the extent that an action would lie in favor of the owner of the land. So it may be said that injury to the right of way of a railroad by cattle under like conditions would not be actionable trespass. It does not, however, follow that because no action is given under such circumstances that the cattle are so lawfully upon the right of way as to make the railroad company an insurer of their safety. The plaintiff is presumed to have known that in the ab*500sence of a fence the cattle would be-liable to stray upon-the right of way and be killed; he was equally chargeable with notice that there was no obligation, so far as the damage here complained of is concerned, to keep the fence in repair, and that it was liable to become defective and insufficient to turn his stock. Charged with such knowledge he took all' risk, in permitting his cattle to run at large, of injury to or destruction of them by mere accident, but no risk of such injury or destruction by defendant’s' negligence. (Kerwhacker v. C. C. & C. R. R. Co., 3 O. St., 172.) It should be borne in mind that the rules governing liability for injuries at railroad crossings are predicated on different premises. By the establishment of such crossings an invitation is extended to the public to use them, and it becomes the duty of the railroad company and its agents and employees to look out for and avoid injuring- those who are using the crossing. In such cases, however, the overwhelming weight of authority is that mere allegations of time, place and injury are not sufficient, but in addition thereto allegations of negligence constituting the proximate cause of the injury are necessary. (5 Ency. P. & P., 690, 691.) In the case before us the failure to keep the fence in repair was not negligence, there being no statute making it the duty of the defndant to do so, and the petition fails to allege negligence in operating and handling the train or engine by which the animal was killed. The petition is fatally defective and the demurrer was properly sustained.
The judgment is affirmed. Affirmed.
Potter, C. J., and Beard, J., concur.