Dissenting Opinion.
Gavin, J. —I am of opinion that since the act of 1885 directly and explicitly imposes upon the railroad company the duty of fencing its road at certain places, its failure to so do is negligence for which a common law right of action arises in favor of' one injured thereby who is himself without contributory fault.
The statutory liability for animals killed is indeed limited to cases where the animals are injured by the cars or locomotives. By the act of 1885 the then existing laws as to the liability of such companies for such killings are not affected.
Until this act there was no duty or obligation resting upon railroad companies to fence. There was only a liability for certain resultant injuries if they failed to fence. There was no question of negligence or contributory negligence. It may be conceded that by the later enactment no additional statutory liability is created, but the statute creates an imperative duty, and the application of common law principles adds the liability which, before did not exist, because there was no common law duty.
That there might be a common law liability where there was a violation of duty, is recognized in Ft. Wayne, etc., R. R. Co. v. O’Keefe, 4 Ind. App. 249.
The cases of Graham v. Delaware, etc., R. W. Co., 46 Hun, 386, and French v. Western, etc., R. W. Co., 72 Hun, 469, are, it seems to me, directly in point.
The subject under consideration in Jeffersonville, etc., R. R. Co. v. Dunlap, 112 Ind. 93, was the statutory *691liability, and, in my judgment, the statements of the learned judge should be limited to the matter in hand.
Lotz, J., concurs in this'opinion.
Piled June 11,1895.