dissenting.
I cannot agree to the holding in this case. It is provided in section 1, art. I, ch. 72, Comp. St. 1907, that railroad corporations shall erect and maintain fences on the sides of their railroads, “suitable and amply sufficient to prevent cattle, horses, sheep, and hogs from getting on the said railroad, except at the crossings of public roads and highways, and within the limits of towns, cities, and villages, * * * and when such fences, * * * or any part thereof, are not in sufficiently good repair to *191accomplish the object for which the same is’herein prescribed, is intended, such railroad corporation and its agents shall be liable for any and all damages which shall be done by the agents, engines, or trains of any such corporation.” It is provided by section 2 of the same act, that, in case of failure to fence as required in the first section, the company “shall be absolutely liable to the owner of any live stock injured, killed, or destroyed.” The language of these sections could not well be made any stronger or more definite. There are two exceptions, and only two, in the act. The railroad company is exempted from liability only at the crossings of public roads and highways, and within the limits of towns, cities, and villages. In all other cases the companies are liable for the value of live stock killed upon their tracks. It is conceded that the place where plaintiff’s horse was killed does not come within either one of the exceptions. Then what legal right or authority have the courts to read into the act any other exception? I known of none. Courts are not established for the purpose of amending or explaining away any part of a valid law enacted by the law making power, which is the supreme power of the state. The case of Chicago, B. & Q. R. Co. v. Hogan, 27 Neb. 801, on rehearing, 30 Neb. 686, is not in point, for the court held that the place where the animal was killed was within one of the exceptions prescribed by the statute. Chicago, B. & Q. R. Co. v. Seveek, 72 Neb. 793, on rehearing, 72 Neb. 799, goes to the limit, the opinion being based largely upon the question of the convenience of the public in having access to the station. In this case the public has no possible interest in the existence or nonexistence of the fence, so far as the public convenience is concerned, and the fence could not interfere with the operation of defendant’s trains, nor the safety of human life. I very much doubt if the 'safety of defendant’s employees could be taken into consideration in any event, as the act referred to makes no such exception. Then, again, to say that the companies may create a “danger point” at any *192place on the line of their railroad and thns set aside the statute at their own pleasure was never intended by the legislature.
There is another reason why I think this decision is wrong. The record shows beyond all question that defendant had its road fenced at the point where the horse was killed but had not kept its fence “in sufficiently good repair” to prevent live stock from going upon its tracks. The fence, standing, as it was, on the line of the right of way, was equivalent to a representation that it would be maintained, and to an invitation to plaintiff to join his fence to it, and that it would be adequate to turn stock. Plaintiff joined his fence to that of defendant, and placed his horses within the inclosure. There is no evidence in the record tending to show that any objection to this was ever made by defendant, or any suggestion that it was its purpose to allow the fence to become insecure.
While no error is shown by the record to the prejudice or disadvantage of defendant, yet I think the court erred in submitting the whole question to the jury. To my mind the only question was: “Did the evidence show that the place where plaintiff’s horse was killed came within any of the exceptions contained in the statute?” If not, plaintiff was entitled to recover the value of the horse killed. The proofs all showed that it did not. No one claimed otherwise. This being true, by the plain and unequivocal language of the statute, plaintiff was entitled to a judgment for the value of the horse. There is no question here as to what the statute ought to be. Courts should only inquire as to what it is. The fact that a statute, if otherwise valid, is more strict in its provisions than the court may think it should have been, furnishes no authority for the avoidance of its terms, or otherwise changing it, but all courts should be governed by it. The changes, limitations, and exceptions are for the legislature. I am unable to see any reason why the judgment should not be affirmed.