Concurring Opinions.
Roby, J.I think that when it is shown by the complaint in a case of this character that the defendant owns and operates a railroad, and has disregarded its statutory duty to fence the same, and that stock, entering upon its track because of such neglect, was struck by one of its trains and killed, liability is complete. This is the plain provision of the statute. §5447 Burns 1908, Acts 1885, p. 224, §1.
I also think that when it is averred that locomotives and trains running over such railroad were operated by the agents, servants and employes of the company owning and operating the railroad, it is sufficiently shown that such agents, servants and employes were acting in the line of their duty, and the eases which deny to the courts sufficient intelligence to grasp the fact should be overruled.
I concur in the main opinion, and regard it as in conflict with and corrective of the reasoning which forms the basis *612of what is said as to this point in Cleveland, etc., R. Co. v. Wasson (1904), 33 Ind. App 316, Wabash R. Co. v. Linton (1901), 26 Ind. App. 596, and Pittsburgh, etc., R. Co. v. Adams (1900), 25 Ind. App. 164.
Rabb, J. — I concur in the views expressed in the concurring opinion of Roby, J.