This action was brought to recover damages done by one of appellant's trains to appellee's mules.
The railway track extended through appellee's pasture and that of one Helm, between which pastures there was a partition fence. The evidence tended to show, that the appellant company had at some time previous to the accident fenced in its track through these pastures, and that this fence, when built, was sufficient. As to whether it was sufficient at the time of the accident, the evidence was conflicting; that of appellee tending to show, that in one place there was a gap, caused by the plank coming loose and the top wire dropping down, so as to permit the passage of his mules from the pasture to the right of way, and that it had been in this condition for two or three weeks prior thereto; that of appellant tending to the opposite conclusion.
Error is assigned to the charge which instructed the jury that a railway company must maintain a fence sufficient to turn ordinary stock, and that its failure to do so is such negligence as will render it liable; which charge, in applying this principle to the facts, reads: "In this case, if it appears from a preponderance of the evidence that the stock in question were injured by the cars of the defendant, and that at the time and near the place where the said injuries occurred the company's fence contained an opening or breach, or was in some way impaired, so that the said stock could effect an entrance to the said track, and should it further appear from a preponderance of the evidence that the said stock did effect an entrance through said breach or impaired place in defendant's fence, then, in this event, it is not necessary, in order that plaintiff recover, that he show any other negligence on the part of defendant."
This presents the question, not heretofore decided in this State, so far as we have been able to find, whether the liability of a railway company for injuries arising from defects in the fence inclosing its track, occurring after its construction, is the same as if no fence had been constructed, or whether such liability depends on the question whether *Page 571 it has used ordinary care or been negligent in performing the duty to repair and maintain it.
The weight of authority outside of this State seems to be decidedly in favor of the latter proposition, even under statutes in terms requiring the railway company both to construct and maintain a sufficient fence. Pierce on Rys., 418, and cases cited; Rorer on Rys., 641, and cases cited; 7 Am. and Eng. Encyc. of Law, 918, and cases cited; 2 Shearm. Redf. on Neg., 4 ed., sec. 425.
Our statute, article 4245, provides: "If a railroad company fence in their road, they shall only then be liable in cases of injury resulting from the want of ordinary care."
Following the strong current of authority construing similar statutes in other States, we conclude, that after fences have once been erected as required by law, the company is only liable, under this statute, for a negligent failure to maintain such fences, and that the charge quoted above was erroneous.
The following charge is also objected to, as submitting a state of case neither alleged nor proven, to wit: "Should you believe from the evidence that the stock in question made an entrance through a gate in defendant's fence, by reason of such gate being dilapidated or broken, or in a condition not to turn ordinary stock when closed, you should find for the plaintiff." This gate was in that part of appellant's fence next to the Helm pasture.
We think this objection is well taken, so far as the evidence found in this record is concerned; and we doubt whether, under the pleadings, even had the evidence made such an issue, it could properly be submitted as a ground of recovery.
The further contention of appellant, that the issue of contributory negligence arising from appellee's turning his mules into his own pasture with a knowledge of the defect in the fence should have been submitted to the jury, we do not sustain. While the authorities seem to be somewhat conflicting upon this question, we believe the better reason is with those cases which hold that the owner of land adjacent to a railroad can not thus be deprived of the ordinary use of his property; but rather, that the railway company in such cases assumes the risk of the accident as a consequence of its neglect to properly discharge a statutory duty, that it undertakes at its peril, to see that no harm comes to stock from running its trains under such conditions. Beach on Con. Neg., p. 242, last of sec. 74; Congdon v. Railway, 48 Am. Rep., 793; Cressy v. Railway, 47 Am. Rep., 227.
This view seems to accord with the trend of our own decisions.
For the errors indicated, the judgment will be reversed, and the cause remanded for a new trial.
Reversed and remanded. *Page 572