Barrows, J.
The plaintiff’s land is bounded easterly by the Penobscot river, northerly by land of James Page, and southerly by land of Samuel Page. The defendants’ railroad intersects all three lots, where the land is improved. There was a line fence between the plaintiff’s land and James Page’s, and a defective one [241]*241between plaintiff’s and Samuel Page’s on the easterly or river side of the railroad. Defendants had built their fence across the plaintiff’s land on both sides — across James Page’s on the river or easterly side, and across Samuel Page’s on the westerly side of their railroad; and in settling land damages with Samuel Page they had obtained a stipulation from him that they should not be required to fence the easterly or river side of their road across his land until notified by him, and at the time the plaintiff’s ox was killed they had not been notified. But there was a defect in defendants’ fence on the plaintiff’s land at the point where their fence across James Page’s land on the river side of the railroad commenced, and through that defect the plaintiff’s ox passed from his pasture on to the railroad some five or six hours before he was killed. Several weeks before this time, the plaintiff’s steers had been injured on the railroad, and thereupon he built a fence across his own land from James Page’s line, around and near the bank of the river above high-water mark, continuing it on the boundary between his own land and land of Samuel Page to the railroad, and thus effectually inclosing his pasture except for the defect in the defendants’ fence above mentioned. The morning of the day the ox was killed, an employee of the defendants found the ox on the railroad track* drove him from it into James Page’s pasture (erroneously supposing it to be the plaintiff’s), and thence it appeared that the ox had traveled around on the river bank across his owner’s land, but outside of his pasture fence, about seventy rods, to Samuel Page’s, land, which was unfenced along the line of the railroad on that side, in accordance with the stipulation above referred to, and so-the ox went directly from Samuel Page’s land upon the track, and. was killed.
The defendants’ claim to be relieved from paying for him by virtue of their agreement with Samuel Page, inasmuch as he at last came on to the track from Samuel Page’s land.
But the presiding judge instructed the jury that if the ox escaped through the defendants’ fence on his owner’s land, and by reason' of a defect therein, the defendants would be liable, notwithstanding [242]*242the agreement between Samuel Page and the defendants, and notwithstanding the facts above stated as to the whereabouts and wanderings of the ox after his escape from the owner’s pasture as aforesaid.
The defendants insist now that the ruling was erroneous, because they say that the ox at last came upon their track from S. Page’s land, and whether he was there by consent of Page or as a trespasser, the owner cannot recover, and they cite cases in which it is held with more or less distinctness that at common law every man must, at his own proper peril, keep his cattle on his own land; that except by virtue of some agreement, prescription, or statute assignment or requirement, no one is bound to fence against an adjoining close; and that, when one is thus bound, it is only against the cattle lawfully upon such close; that these principles have been and should.be applied to the construction of statutes requiring railroad companies to fence their roads where they pass through inclosed or improved land; that those statutes do not affect or add to the rights of those who have no interest in the adjoining land, nor the obligations of the railroad company to them, but those rights and obligations still remain as at common law; and that any contract which the company may make with the adjoining proprietor as to the building or omitting to build the statute fence through his land is valid and binding upon such proprietor, and relieves the company from any liability for injury to his cattle or any cattle coming upon the track from his land, to the extent of its provisions, unless such injury is inflicted by the wanton or careless mismanagement of their engines and trains.
Hereupon they argue that if the ox was on S. Page’s land with Page’s consent, his owner can have no greater rights against the company than Page himself would have had; that Page could not recover in such a suit because of their agreement; that they are not liable on account of the original escape, because the ox after-wards went across his owner’s land; and that the negligence of plaintiff in not fencing between his land and that of Samuel Page, on the river bank, — not the defect in the defendant’s fence by [243]*243which the animal first escaped, — was the proximate cause of the injury, or- at least contributed to produce it.
But we think the'defendants fail to bring their case within the principles decided in the cases they cite, and behind which they seek to intrench themselves, in more than one important particular.
1. If they would have us decide that the rulings of which they complain militate against the cases which hold, as we have done in Perkins v. Eastern R. R. Co., 29 Maine, 310, that the railroad company is not bound to fence against cattle wrongfully upon the adjoining close, they should, at the very least, have made it appear in their exceptions that there was testimony tending to show that the plaintiff’s ox had no right to pasture upon Samuel Page’s land .there between the railroad and the river. In the absence of any such statement we infer that those decisions were inapplicable to the facts in the present case. Were thei’e nothing else to found it on, the form of the defendants’ argument would fairly justify the inference. Their position is that if the ox was on Page’s land with his consent, the plaintiff is barred from recovering by reason of the agreement with Page that they need not build the fence until notified by him, thus assuming the fact with regard to Page’s consent to be as the plaintiff claims it was. But it was incumbent upon the excepting party to state how the fact was, if it were otherwise. We cannot presume a fact which the case does not show, in order to base upon it an argument that there was error in the instructions.
2. The defendants also cite cases in which it has been held that where there is a contract with the adjoining proprietor that the company shall not be required to build the fence across his land, he cannot recover for injuries accruing from the want of such fence. But the defendants had no such contract with the plaintiff. They claim that the same result follows as to all cattle lawfully running upon .Page’s land. But we do not think that an agreement like this for the nullification of a statute of this State can be regarded as having any effect upon the rights of any one who is not a party to it, nor shown to be cognizant of or assenting to it. The statute requirement is explicit. ‘Legal and sufficient fences are to be [244]*244made on each side of land taken for a railroad where it passes through inclosed or improved land, or woodlots belonging to a farm, before a construction of the road is commenced, and they are to be maintained and kept in good repair by the corporation.’ A penalty is imposed for the breach of this law. R. S., 1857, c. 51, § 23 et seq.; R. S., 1871, c. 51, § 20 et seq.
An action lies in favor of one who, without fault on his own part, has suffered damage by reason of the defendants’ disregard of the law.
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Barrows, J.
The plaintiff’s land is bounded easterly by the Penobscot river, northerly by land of James Page, and southerly by land of Samuel Page. The defendants’ railroad intersects all three lots, where the land is improved. There was a line fence between the plaintiff’s land and James Page’s, and a defective one [241]*241between plaintiff’s and Samuel Page’s on the easterly or river side of the railroad. Defendants had built their fence across the plaintiff’s land on both sides — across James Page’s on the river or easterly side, and across Samuel Page’s on the westerly side of their railroad; and in settling land damages with Samuel Page they had obtained a stipulation from him that they should not be required to fence the easterly or river side of their road across his land until notified by him, and at the time the plaintiff’s ox was killed they had not been notified. But there was a defect in defendants’ fence on the plaintiff’s land at the point where their fence across James Page’s land on the river side of the railroad commenced, and through that defect the plaintiff’s ox passed from his pasture on to the railroad some five or six hours before he was killed. Several weeks before this time, the plaintiff’s steers had been injured on the railroad, and thereupon he built a fence across his own land from James Page’s line, around and near the bank of the river above high-water mark, continuing it on the boundary between his own land and land of Samuel Page to the railroad, and thus effectually inclosing his pasture except for the defect in the defendants’ fence above mentioned. The morning of the day the ox was killed, an employee of the defendants found the ox on the railroad track* drove him from it into James Page’s pasture (erroneously supposing it to be the plaintiff’s), and thence it appeared that the ox had traveled around on the river bank across his owner’s land, but outside of his pasture fence, about seventy rods, to Samuel Page’s, land, which was unfenced along the line of the railroad on that side, in accordance with the stipulation above referred to, and so-the ox went directly from Samuel Page’s land upon the track, and. was killed.
The defendants’ claim to be relieved from paying for him by virtue of their agreement with Samuel Page, inasmuch as he at last came on to the track from Samuel Page’s land.
But the presiding judge instructed the jury that if the ox escaped through the defendants’ fence on his owner’s land, and by reason' of a defect therein, the defendants would be liable, notwithstanding [242]*242the agreement between Samuel Page and the defendants, and notwithstanding the facts above stated as to the whereabouts and wanderings of the ox after his escape from the owner’s pasture as aforesaid.
The defendants insist now that the ruling was erroneous, because they say that the ox at last came upon their track from S. Page’s land, and whether he was there by consent of Page or as a trespasser, the owner cannot recover, and they cite cases in which it is held with more or less distinctness that at common law every man must, at his own proper peril, keep his cattle on his own land; that except by virtue of some agreement, prescription, or statute assignment or requirement, no one is bound to fence against an adjoining close; and that, when one is thus bound, it is only against the cattle lawfully upon such close; that these principles have been and should.be applied to the construction of statutes requiring railroad companies to fence their roads where they pass through inclosed or improved land; that those statutes do not affect or add to the rights of those who have no interest in the adjoining land, nor the obligations of the railroad company to them, but those rights and obligations still remain as at common law; and that any contract which the company may make with the adjoining proprietor as to the building or omitting to build the statute fence through his land is valid and binding upon such proprietor, and relieves the company from any liability for injury to his cattle or any cattle coming upon the track from his land, to the extent of its provisions, unless such injury is inflicted by the wanton or careless mismanagement of their engines and trains.
Hereupon they argue that if the ox was on S. Page’s land with Page’s consent, his owner can have no greater rights against the company than Page himself would have had; that Page could not recover in such a suit because of their agreement; that they are not liable on account of the original escape, because the ox after-wards went across his owner’s land; and that the negligence of plaintiff in not fencing between his land and that of Samuel Page, on the river bank, — not the defect in the defendant’s fence by [243]*243which the animal first escaped, — was the proximate cause of the injury, or- at least contributed to produce it.
But we think the'defendants fail to bring their case within the principles decided in the cases they cite, and behind which they seek to intrench themselves, in more than one important particular.
1. If they would have us decide that the rulings of which they complain militate against the cases which hold, as we have done in Perkins v. Eastern R. R. Co., 29 Maine, 310, that the railroad company is not bound to fence against cattle wrongfully upon the adjoining close, they should, at the very least, have made it appear in their exceptions that there was testimony tending to show that the plaintiff’s ox had no right to pasture upon Samuel Page’s land .there between the railroad and the river. In the absence of any such statement we infer that those decisions were inapplicable to the facts in the present case. Were thei’e nothing else to found it on, the form of the defendants’ argument would fairly justify the inference. Their position is that if the ox was on Page’s land with his consent, the plaintiff is barred from recovering by reason of the agreement with Page that they need not build the fence until notified by him, thus assuming the fact with regard to Page’s consent to be as the plaintiff claims it was. But it was incumbent upon the excepting party to state how the fact was, if it were otherwise. We cannot presume a fact which the case does not show, in order to base upon it an argument that there was error in the instructions.
2. The defendants also cite cases in which it has been held that where there is a contract with the adjoining proprietor that the company shall not be required to build the fence across his land, he cannot recover for injuries accruing from the want of such fence. But the defendants had no such contract with the plaintiff. They claim that the same result follows as to all cattle lawfully running upon .Page’s land. But we do not think that an agreement like this for the nullification of a statute of this State can be regarded as having any effect upon the rights of any one who is not a party to it, nor shown to be cognizant of or assenting to it. The statute requirement is explicit. ‘Legal and sufficient fences are to be [244]*244made on each side of land taken for a railroad where it passes through inclosed or improved land, or woodlots belonging to a farm, before a construction of the road is commenced, and they are to be maintained and kept in good repair by the corporation.’ A penalty is imposed for the breach of this law. R. S., 1857, c. 51, § 23 et seq.; R. S., 1871, c. 51, § 20 et seq.
An action lies in favor of one who, without fault on his own part, has suffered damage by reason of the defendants’ disregard of the law. If they will stipulate with adjoining proprietors to suffer them to break it, such an agreement will not relieve them from any liability they may thereby incur to any innocent third party. A covenant of that description does not ‘run with the land.’
The statute provision is an important one for the safety of the traveling public, the railroad company itself, and the whole community. An agreement to disregard it will bar the rights of no one who is not culpably consenting to it. It follows that the ruling was right, even if the want of the fence on S..Page’s land is to be regarded as the proximate cause of the injury.
3. But we think it is a refinement quite too subtle to relieve the defendants from liability, when the ox escaped from the owner’s inclosure on to the track by reason of the defect in the defendants’ fence, to claim that this was not the proximate cause of the accident because he was driven thence by a railroad employee into another man’s pasture, and strayed thence across his owner’s land outside of his inclosure on to the track again at the place where he was killed. He escaped from the inclosure in which his owner had placed him for safe keeping through the fault of the defendants. He was not restored by them to the custody of the owner-That he was driven on to Page’s land and returned again upon the track, after crossing unenclosed land belonging to his owner, can make no difference as to the liability of the defendants.
If, after thus escaping upon the track, lie had strayed through other defects in the defendants’ fences upon the lands of other adjoining proprietors before he met his death upon the track, there would be no propriety in permitting the defendants to set up the [245]*245fact that lie was unlawfully upon such neighbors’ lands, because it was through their fault and not the fault of the plaintiff that he was there at all. They could not be thus permitted out of two wrongs to make a right. ‘ Nemo ex suo delicto meliorem sitam conditionem facere potest?
The case bears no resemblance in its facts to that of Eames v. S. & L. R. R. Co., 98 Mass. 561. Neither is it one to which the maxim, causa proxima, non remota, spectatur can be usefully or properly applied. There would be just as much propriety in attributing the loss to the perversity of the animal in remaining upon the track instead of moving aside at the approach of the engine, as there would be in reckoning as a proximate cause its wanderings after it had escaped from the owner’s inclosure through the fault of the defendants. Their neglect was the true efficient procuring cause, without which the accident could not have happened.
4. The plaintiff does not appear to have been negligent in any respect. It would seem that he had taken special care after the accident to his steers, and fenced his pasture against the river as well as on the line between the pasture and S. Page’s land, so that his cattle would have been secure but for the defect in the defendants’ fence. It cannot be imputed to the plaintiff as negligence, that he did not fence between his land and the land of S. Page on the river bank, where his cattle were not allowed to run, and where the ox could not have gone if the defendants had done their duty. None of the cases which have turned upon the question of contributory negligence on the part of plaintiffs, present similar features or anything analogous.
We are satisfied that the instruction given by the presiding judge, directed the attention of the jury to the only question they had to consider, and that the matters relied on by the defendants,afford them no legal defense to the plaintiff s claim.
Nxceptions overruled.
Appleton, C. J.; Cutting, Kent, and Walton, JJ., concurred.