This action is prosecuted to recover double damages for killing and injuring a number of plaintiff’s hogs. Plaintiff had judgment and defendant appeals.
Holding plaintiff to the statement of his cause of action, his hogs escaped onto defendant’s right of way and track, from adjoining enclosed fields. Looking, then, to the evidence, we find that, although the railroad fence was insufficient, these adjoining fields were not plaintiff’s; the enclosures of others intervening between plaintiff’s fields and defendant’s track. Under this state of case, plaintiff cannot recover without showing that his hogs were running in the adjoining field to the track, by some agreement with the owner; or that the fence on the sides of the field, other than the railroad side, was not a lawful fence. Pences, in the respect we are here considering them, are required for the benefit of the adjoining proprietor, and if his field has, on its three sides, a lawful fence, it cannot avail a stranger, whosé stock is injured, that the railroad track is defectively fenced from the field, or that it is not fenced at all. Harrington v. Railroad, 71 Mo. 384. While there was evidence tending to prove that the railroad fence was defective, there is none, whatever, as to the character of the fence around the field which adjoined defendant’s track. Por aught that appears, this may have been a lawful fence. If it was, plaintiff cannot recover.
The judgment is reversed, and the cause is remanded.
All concur.