Wood, J.
(after stating the facts). (1-2-3). The appellant was under no duty to construct and maintain a fence along its right-of-way to prevent cattle that were pastured1 upon the commons from guing upon such right-of-way. The appellee, in permitting his cow to run at large, assumed all the risks incident thereto. Railway Company v. Ferguson, 57 Ark. 16. But the appellant would have no right to allow feed stuff to be emptied or-to accumulate upon its right-of-way in such manner as would be attractive to cattle that might be browsing upon the commons. This would be luring such animals, by reason of their natural instincts, into places of danger; and if appellant did this, it would be negligent. If appellant permitted feed stuff to (be placed upon its right-of-way in such manner as was calculated to attract cattle thereto, it would be liable for damages to the owner of animals that were injured by reason of such negligence. If appellant negligently permitted the fence inclosing its right-of-way to become so out of repair that cattle were injured thereby in attempting to reach feed stuff placed upon its right-of-way in proximity to the defective fence, the appellant would be liable in damages to the owner for such injuries. See Jones v. Nichols, 46 Ark. 207.
(4) Applying the above principles to the facts of this record, appellee, having the burden of proof, has failed to sustain the allegations of his complaint. There is no proof as to how long the defective condition in the fence had existed. There is nothing to show that the defective condition had existed for so long a time as to warrant the inference that appellant had notice of such defective condition and that it was therefore negligent in not having the same repaired before the alleged injury.
It was shown on behalf of appellant that the section foreman and the yardman, whose duties were to keep the fence in repair, did not know that the fence was out of repair at that place until after the injury. They testified that people were continuously cutting the fence. For aught that appears to the contrary, the defective condition in the fence may have existed for so short a time that appellant, in the exercise of ordinary care, could not have repaired the same before the injury to the cow occurred. There is no proof on which to predicate a charge of negligence. Negligence under the circumstances would not be presumed but would have to be affirmatively shown.
For the error in not granting appellant’s motion for a new trial, the judgment is reversed and the cause is dismissed.
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