concurring.
The question presented in this case is an interesting one. The statute (Rev. St. 1913, sec. 6035) provides that the railroad company shall erect fences along the line of the track “suitable and amply sufficient to prevent cattle, horses, sheep and hogs from getting on such railroad.” The same section says that these fences are not to be erected at crossings of public roads and highways, *728and within the limits of towns, cities and villages. The statute, taken literally, does not make any exception where inclosing the right of way would endanger the lives of employees, and yet we have, and I think with great reason, considered that the legislature must have intended that.
The animals in this case were not injured at any place where it would endanger the lives of anybody to fence the track so as to keep them off. If we construe the statute so that the roads shall not be compelled to fence their track where by doing so they would endanger the lives of their employees, should we not also necessarily conclude that it was intended to require them to so fence their tracks as to prevent animals from going from these places where they are not required to fence onto the track, where they áre required to fence? Wherever a private way crosses the track suitable cattle-guards are required. The statute has been construed to intend that station grounds where private parties must pass from place to place in the transaction of the ordinary business of the road need not be fenced. These grounds are essentially a private way, and the statute clearly means that, cattle-guards must be so placed as to prevent animals from going upon the tracks from such private way. If we construe the statute so literally as not to require the defendant to prevent animals from going upon the right of way from these private grounds of the company, we must with greater reason overrule our former decisions and apply the letter of the statute so as to require the company to either fence their private grounds or assume liability for damages to animals trespassing thereon.
It is plain that the intention of the people who made this law through their legislature is that animals shall not be allowed by the railroad company to run upon their main lines, and I think that the statute should be so construed as to enforce that provision. This would require that the railroad company be held liable in this case under the facts as represented in this record.