Concurring Opinion.
Davis, J. —The owner is not necessarily a wrongdoer when, without fault on his part, stock escapes from his premises. Louisville, etc., R. W. Co. v. Ousler, 36 N. E. Rep. 290; Ohio, etc., R. W. Co. v. Craycraft, 5 Ind. App. 335.
Ordinarily, my opinion would be that if the duty to fence, as required by statute, is negligently violated and the violation of the duty is the proximate cause of the *689injury, tlie right of action of the owner of the stock is clear and complete. Section 5323, R. S. 1894; Louisville, etc., R. W. Co. v. Hendricks, 128 Ind. 462.
The courts, however, have held that under the act of 1885 there could be no liability for the death or injury of an animal unless the same was killed or injured by an actual touching by the engine or cars or other carriages. Fort Wayne, etc., R. R. Co. v. O’Keefe, 4 Ind. App. 249; Jeffersonville, etc., R. R. Co. v. Dunlap, 112 Ind. 93.
If an animal, by reason of the failure to fence, strays upon the track and is not struck by the locomotive or cars, there can be no recovery unless the killing or injuring was wilful. Fort Wayne, etc., R. R. Co. v. O’Keefe, supra.
The only negligence charged in the complaint is the failure to maintain the fence. It is not alleged that the killing was wilful. Prior to 1885 the statute did not positively enjoin upon railway companies the duty of fencing their tracks. Jeffersonville, etc., R. R. Co. v. Dunlap, supra.
The act of 1885 enjoined this duty. Section 5323, R. S. 1894, supra.
It was, however, expressly provided in this act that it should not in any manner affect the liability of railroad corporations for stock killed or injured, but such liability should exist and be governed by the laws then in force the same as if said act had never been passed. Section 5326, R. S. 1894.
The leading purpose of the act of 1885 was to give the owner of adjoining enclosed and improved lands the right and the power to have fences built and maintained either by or at the expense of the railway company between his enclosed and improved lands and railways. •Sections 5324 and 5325, R. S. 1894.
*690With some hesitation, therefore, I concur in affirming the judgment of the trial court.
Piled June 11, 1895.