By the Court,
Lewis, C. J.:
Tbe question as to tbe extent of tbe liability of railroad companies for injuries to domestic animals has frequently [114]*114been before tbe courts, and has been considered in nearly every conceivable phase, so that at tbe present time tbe law upon tbis particular bead is pretty thoroughly settled.
Tbe leading principle pervading all tbe cases is that tbe liability of such companies is founded only upon negligence or omission of duty, and tbis principle' is fortified by tbe cases of analagous character from tbe earliest history of tbe law. Thus it bas always been held that if in tbe prosecution of a lawful act, an accident, which is purely so, arises, no action can be maintained for an injury resulting therefrom. Davis v. Saunders, 2 Chitty Rep. 639; Goodman v. Taylors, 5 Car. & P. 410. And in railroad cases, upon tbe same principle, it is always held necessary to show negligence to sustain an action for damages. Gerres v. Portsmouth and Roanoke R. R. Co., 2 Iredell 324; Lane v. Crombie, 12 Pick. 177; Harlow v. Humison, 6 Cow. 189; Vandegrift v. Redicker, 2 Zabriskie, 185; Louisville and Frankfort R. R. Company v. Ballard, 2 Met. (Ky.) 177; Chicago and Miss. R. R. v. Patchin, 16 Ill. 198; 18 Ill. 260; 22 Barb. 574. Upon what other principle of law can a person who occasions damage while in tbe pursuit of a lawful business upon bis own premises be held liable ? Surely an individual so situated, who exercises proper caution and is not chargeable with negligence, can not be held for an accidental injury and damage resulting therefrom. There being no negligence in any sense of tbe word on tbe part of tbe person causing tbe injury, it would be a case of damage without a wrong, and consequently affording no cause of action. In all such cases, therefore, tbe negligence or want of that due care and caution which tbe situation demands is tbe very gravamen of tbe action, without which none can be maintained.
In tbis case it does not appear to be questioned but tbe defendant’s business is entirely lawful, nor that it bas tbe right to tbe possession of tbe land taken for tbe purposes of its road; and that possession, by all tbe authorities, is tbe right to its exclusive enjoyment, and to exclude all persons and beasts therefrom at any and all times. Jackson v. The Rutland and Burlington R. R. 25 Ver. 150. It follows, then, [115]*115as tlie defendant was engaged in a lawful act upon premises to which it had the exclusive right to the possession, it was incumbent on the plaintiff to show some degree of negligence at least to entitle him to maintain an action against it. This he entirely failed to do. Indeed there appears to have been ho effort made in that direction, plaintiff relying entirely on these two propositions: 1st, that the mere killing of the animal by the locomotive engine of the defendant while in motion, was itself evidence of a want of due care; and 2d, that the defendant being required to fence its road at the point where the plaintiff’s cow got on the track but not having done so, is in that respect chargeable with negligence and liable.
But it is not the law that the mere killing of a domestic animal by a railroad train is evidence of negligence. This question has frequently been before the courts and invariably ruled against the plaintiff, except where the general rule of law is abrogated by positive statute. The fact of killing an animal of value by the company’s engines, says Redfield, is not prima facie evidence of negligence. 1 Redfield on Railways, 465. And it is so ruled in the following cases: Scott v. The Wilmington and Raleigh R. R. Co. 4 Jones, (Law) 432; Indianapolis and Cincin. R. R. v. Means, 14 Ind. 30; Ill. Cent. R. R. v. Reedy, 17 Ill. 580; Chicago and Miss. R. R. v. Patchin, 16 Ill. 198. See also Pierce’s American Railway Law, 357.
Was it incumbent ®n the defendant to fence its road? At common law the proprietor of land was not required to fence; but every man was bound to keep his cattle on his own premises, and he might do this in any manner he chose. And this rule applies equally to railroads as to individuals. Does the statute then impose this obligation ? It does not, as we understand it, require railroad companies to fence their road when it runs through public land. Its language is rather vague, but no sensible construction can be placed upon it except that it must fence its road where it runs through or alongside of land owned by individuals. That portion of the section bearing upon this question reads [116]*116thus: “It shall be the duty of the railroad company to make and maintain a good and sufficient fence on either or both sides of its property, and in case any company do not make and maintain such fence, if their engine or cars shall kill, maim, or destroy any cattle or other 'domestic animals when they stray upon their Une of road where it passes though or alongside of the property of the owners thereof, they shall pay to the owner or owners of such cattle or other domestic animals, a fair market-price for the same, unless the owner or owners of the animal or animals so killed, maimed, or destroyed shall be negligent or at fault.” Statutes of 1864-, 5, page 442. Now it will be seen, that, although railroad companies are in general terms required to fence their road, it does not appear to be made their duty absolutely to fence both sides, but “ either or both.” What is to be understood by this ? The requirement would be literally complied with if the company simply fenced one side of its road, for the requirement is in the disjunctive, to fence one side or both. It certainly could not have been the intention of the legislature to leave so important a matter optional with railroad companies, to fence; and yet it can not be denied that by the strict interpretation of the language they are only required absolutely to fence one side; so, if a fence were made and maintained along the entire length of one side of the road, nothing more could be required under this section.
It is quite evident that this was not what was intended to be required, for it would simply result in an absurdity. What then was the intention of the legislature ? Doubtless simply to require the companies to fence their road where it may run through or alongside of the land of private individuals; that is, on either or both sides as occasion may demand. This view is strengthened by the fact that the statute only makes the company liable for the injury to, or killing of stock ‘' when they stray upon their line of road, where it passes through or alongside of the property of the owners of such cattle. ” So, too, it had frequently been held that fencing, even when required by statute, is only for the protection of adjoining .owners, and that no other person [117]*117can complain of the want of it. Jackson v. Bur. and Rut. R. R., 25 Vt. 150. Now this statute may have been adopted in reference to those decisions, and hence perhaps the requirement of a fence on “either or both sides” where there were owners to be protected. At any rate this ease does not come within the statute, for it in terms only renders the company liable where the animals killed or injured stray upon the road directly from the land belonging to their owners.
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court,
Lewis, C. J.:
Tbe question as to tbe extent of tbe liability of railroad companies for injuries to domestic animals has frequently [114]*114been before tbe courts, and has been considered in nearly every conceivable phase, so that at tbe present time tbe law upon tbis particular bead is pretty thoroughly settled.
Tbe leading principle pervading all tbe cases is that tbe liability of such companies is founded only upon negligence or omission of duty, and tbis principle' is fortified by tbe cases of analagous character from tbe earliest history of tbe law. Thus it bas always been held that if in tbe prosecution of a lawful act, an accident, which is purely so, arises, no action can be maintained for an injury resulting therefrom. Davis v. Saunders, 2 Chitty Rep. 639; Goodman v. Taylors, 5 Car. & P. 410. And in railroad cases, upon tbe same principle, it is always held necessary to show negligence to sustain an action for damages. Gerres v. Portsmouth and Roanoke R. R. Co., 2 Iredell 324; Lane v. Crombie, 12 Pick. 177; Harlow v. Humison, 6 Cow. 189; Vandegrift v. Redicker, 2 Zabriskie, 185; Louisville and Frankfort R. R. Company v. Ballard, 2 Met. (Ky.) 177; Chicago and Miss. R. R. v. Patchin, 16 Ill. 198; 18 Ill. 260; 22 Barb. 574. Upon what other principle of law can a person who occasions damage while in tbe pursuit of a lawful business upon bis own premises be held liable ? Surely an individual so situated, who exercises proper caution and is not chargeable with negligence, can not be held for an accidental injury and damage resulting therefrom. There being no negligence in any sense of tbe word on tbe part of tbe person causing tbe injury, it would be a case of damage without a wrong, and consequently affording no cause of action. In all such cases, therefore, tbe negligence or want of that due care and caution which tbe situation demands is tbe very gravamen of tbe action, without which none can be maintained.
In tbis case it does not appear to be questioned but tbe defendant’s business is entirely lawful, nor that it bas tbe right to tbe possession of tbe land taken for tbe purposes of its road; and that possession, by all tbe authorities, is tbe right to its exclusive enjoyment, and to exclude all persons and beasts therefrom at any and all times. Jackson v. The Rutland and Burlington R. R. 25 Ver. 150. It follows, then, [115]*115as tlie defendant was engaged in a lawful act upon premises to which it had the exclusive right to the possession, it was incumbent on the plaintiff to show some degree of negligence at least to entitle him to maintain an action against it. This he entirely failed to do. Indeed there appears to have been ho effort made in that direction, plaintiff relying entirely on these two propositions: 1st, that the mere killing of the animal by the locomotive engine of the defendant while in motion, was itself evidence of a want of due care; and 2d, that the defendant being required to fence its road at the point where the plaintiff’s cow got on the track but not having done so, is in that respect chargeable with negligence and liable.
But it is not the law that the mere killing of a domestic animal by a railroad train is evidence of negligence. This question has frequently been before the courts and invariably ruled against the plaintiff, except where the general rule of law is abrogated by positive statute. The fact of killing an animal of value by the company’s engines, says Redfield, is not prima facie evidence of negligence. 1 Redfield on Railways, 465. And it is so ruled in the following cases: Scott v. The Wilmington and Raleigh R. R. Co. 4 Jones, (Law) 432; Indianapolis and Cincin. R. R. v. Means, 14 Ind. 30; Ill. Cent. R. R. v. Reedy, 17 Ill. 580; Chicago and Miss. R. R. v. Patchin, 16 Ill. 198. See also Pierce’s American Railway Law, 357.
Was it incumbent ®n the defendant to fence its road? At common law the proprietor of land was not required to fence; but every man was bound to keep his cattle on his own premises, and he might do this in any manner he chose. And this rule applies equally to railroads as to individuals. Does the statute then impose this obligation ? It does not, as we understand it, require railroad companies to fence their road when it runs through public land. Its language is rather vague, but no sensible construction can be placed upon it except that it must fence its road where it runs through or alongside of land owned by individuals. That portion of the section bearing upon this question reads [116]*116thus: “It shall be the duty of the railroad company to make and maintain a good and sufficient fence on either or both sides of its property, and in case any company do not make and maintain such fence, if their engine or cars shall kill, maim, or destroy any cattle or other 'domestic animals when they stray upon their Une of road where it passes though or alongside of the property of the owners thereof, they shall pay to the owner or owners of such cattle or other domestic animals, a fair market-price for the same, unless the owner or owners of the animal or animals so killed, maimed, or destroyed shall be negligent or at fault.” Statutes of 1864-, 5, page 442. Now it will be seen, that, although railroad companies are in general terms required to fence their road, it does not appear to be made their duty absolutely to fence both sides, but “ either or both.” What is to be understood by this ? The requirement would be literally complied with if the company simply fenced one side of its road, for the requirement is in the disjunctive, to fence one side or both. It certainly could not have been the intention of the legislature to leave so important a matter optional with railroad companies, to fence; and yet it can not be denied that by the strict interpretation of the language they are only required absolutely to fence one side; so, if a fence were made and maintained along the entire length of one side of the road, nothing more could be required under this section.
It is quite evident that this was not what was intended to be required, for it would simply result in an absurdity. What then was the intention of the legislature ? Doubtless simply to require the companies to fence their road where it may run through or alongside of the land of private individuals; that is, on either or both sides as occasion may demand. This view is strengthened by the fact that the statute only makes the company liable for the injury to, or killing of stock ‘' when they stray upon their line of road, where it passes through or alongside of the property of the owners of such cattle. ” So, too, it had frequently been held that fencing, even when required by statute, is only for the protection of adjoining .owners, and that no other person [117]*117can complain of the want of it. Jackson v. Bur. and Rut. R. R., 25 Vt. 150. Now this statute may have been adopted in reference to those decisions, and hence perhaps the requirement of a fence on “either or both sides” where there were owners to be protected. At any rate this ease does not come within the statute, for it in terms only renders the company liable where the animals killed or injured stray upon the road directly from the land belonging to their owners. It would appear from this language that if they stray upon the track, from public land, or from land not belonging to the owner of the animals, it was not intended by the statute to render the road liable. This construction also is in conformity with decisions rendered before the adoption of the statute. . Thus it is held in Jackson v. Burlington and Rutland R. R. supra, that a railroad company may be held liable for injury to cattle where they get upon the track directly from the land of the owner, but if they first stray upon the land of others and from there get on the track and are killed or injured, no liability is imposed on the company. And so it has frequently been held.
Under this statute, undoubtedly if cattle stray upon the railroad directly from the owner’s land, by reason of the failure on the part of the company to fence the road at that point, it would be held liable by the simple showing of the facts that the company had neglected to fence the road along the land of the person owning the animals, that they strayed directly from his land on the road and were there killed, without showing any further negligence; for the failure to build the fence where required together with the other facts above mentioned would bring the case directly within the statute and without further showing create a cause of action. But where the case is not brought within the statute,- negligence is the only ground of action, as we have already shown.
This case is not brought within the statute; for it is not shown that the company failed to fence at a point where it should have done so, nor that the animal killed strayed from land belonging to its owner on to the railroad, but that it came from public land unoccupied and unclaimed upon the [118]*118track; and as no negligence was shown, - no cause of action was established. Nor could it help the plaintiff in this case if it were admitted that, he had the right to allow his cattle to depasture on the public land, or even on the railroad track itself; for in that case both the company and the plaintiff’s cattle would be rightfully on the track, and even in such case negligence or a want of due care must be shown to authorize a recovery for injury such as that here claimed.
Therefore the non-suit was properly granted.
Judgment affirmed.
Garber, J., did not participate in the foregoing decision.