That such care may be taken, the engine-driver must keep strict and constant watch, and that he may do so, all objects which, not being directly upon the track, yet obstruct his vision, must be removed.1

§ 88. Laws are for the public benefit.-Statutes imposing responsibility upon railway companies for injury to livestock, are for the benefit of all persons, and not alone for the protection of him through whose land the road runs.

The common law and provisions of the statutes providing for the building of fences by the railroad companies in England appear only to be intended for the protection of those owners of live-stock whose lands lie immediately contiguous to the roadway; and the obligation on the part of the company to make and maintain fences, applies only as against the owners or occupiers of the adjoining close.2

But the benefit of the American statutes is, as a general rule, not confined to owners or occupants of land immediately adjoining a railroad, but extends to all owners of animals, although

safety of the passengers and property in transportation; his next, to secure the property of the company from danger. Subordinate to these duties, he is bound to use ordinary means, such as sounding the bell or whistle, or other measures appropriate to the case, to avoid doing needless injury; and if he does this, the company are not liable." (Bemis v. R. R. Co. 42 Vt. 375; Jeffersonville R. R. Co. v. Chenoweth, 30 Ind. 366.)

1 Ruiford v. R. R. Co. 43 Miss. 233; Cecil v. R. R. Co. 47 Mo. 246; Watson v. R. R. Co. 7 Phil. (Pa.) 249; Nashville R. R. Co. v. Comans, 45 Ala. 437; New Orleans R. R. Co. v. Field, 46 Miss. 573. "In an action to recover the value of cattle alleged to have been killed on defendants' road by their locomotive and train, it appeared that the cattle could have been seen on the track by the engineer, if he had been on the look-out, for a distance of more than half a mile; yet he made no effort to slacken the speed of the train. Held, it was gross negligence, for which the company should be held responsible, even though the cattle were upon the track without the fault of the company." (Chicago R. R. Co. v. Barrie, 55 Ill. 226.)

21 Redfield on Railways, 465; Towns v. Cheshire R. R. Co. 1 Foster, 363; Sharrod v. London Etc. R. R. 4 Exch. 580; 8 and 9 Vict. Chap. 20, Sec. 68; Ricketts v. E. & W. I. D. Co. 12 C. B. 160; Jackson v. R. R. 25 Vt. 150; M. S. & L. R. R. Co. 14 C. B. 243. Held, "that a railway was not bound to fence against cattle straying upon a highway running along the railway, and that they are not liable for any injury sustained by cattle in getting from such highway upon the railway through a defect of the fences maintained by the company; although the cattle strayed upon the highway without any fault of the owner." (Brooks v. N. Y. & E. R. R. Co. 13 Barb. 594; 2 Roll. 289; Toledo R. R. Co. v. Weaver, 34 Ind. 298.) 3 Corwin v. N. Y. & E. R. R. Co. 13 N. Y. 42. "The duty imposed by the statute upon railroad corporations is not limited to the maintenance of fences and

in some of the older States the common-law rule obtains, that a man must fence his cattle in, or abide the consequences of their straying abroad.1

On the other hand, the common-law rule that the owner of domestic animals must fence them in, is not of universal application in the United States. It is generally admitted to be inconsistent with the customs and necessities of the people there, and the common law was adopted so far as it was adapted to the wants of the people when the State constitutions were formed; hence this rule has come to be rather an exception,2 and result

cattle-guards, as against the animals of adjoining occupants, or those lawfully in the highway." (New A. R. R. Co. v. Ashton, 13 Ind. 545; New A. Etc. R. R. v. Bishop, 13 Ind. 566; Brown e. Providence Etc. R. R. 12 Gray, 55.)

1 Corwin v. N. Y. & Erie R. R. Co. 13 N. Y. 47. At common law, the owner of cattle must keep them upon his own premises; and if he did not, they were trespassers when they strayed upon the land of others, and the owner was guilty of negligence, when, by failing to keep them on his premises, he suffered them so to stray. When his negligence contributed to the occurrence by which the cattle were injured, the owner could not recover on the ground of negligence of others. (Eames v. Salem R. R. Co. 98 Mass. 560.) But one whose animals are in a field adjoining the railroad, by license of the occupier, is himself an occupier. (Dawson v. Midland R. Co. Law Rep. 8 Exch. 8; Midland R. Co. v. Daykin, 17 C. B. 126; Rust v. Low, 6 Mass. 94; Thayer v. Arnold, 4 Met. 589; Little v. Lathrop, 5 Green. R. 356; Bush v. Brainard, 1 Cow. 78; Holladay v. Marsh, 3 Wend. 142.)

2 "The owner of cattle is under no obligation to keep them on his premises. If, however, he should permit them to run at large, and they should go upon the track of a railroad and be injured unavoidably, through no want of diligence or care on the part of the agents or servants of the railroad company, he would be without redress." (German v. P. R. R. Co. 26 Mo. 441.)

"It is the law in England, and in some of the densely populated States in this Union, that the owners of cattle shall keep them inclosed, and if they stray therefrom they are trespassers, and the owners are guilty of negligence. But such is not and never was the common law in Missouri. It is opposed to the policy of the State in its present condition, and whenever it has been attempted to be enforced, it has met with resistance and condemnation." (McPheeters v. H. & St. J. R. R. Co. 45 Mo. 26.)

"No conviction has more thoroughly occupied the public mind than this, and nothing would sooner arouse the attention of the community than the apprehension that the old rule of the common law was to any extent to be revived. As early as 1808, the act for regulating inclosures became a law, and from that time the people have rested in the belief that they incurred no responsibility and were guilty of no fault or negligence toward others in turning loose their cattle, unless when their cattle trespassed upon fields inclosed in the manner prescribed by law. An injury to cattle, unless trespassing upon fields legally inclosed, was redressed without any inquiry whether the cattle, when they received the injury, were on the land of the owner or that of the individual committing the wrong." "The range, as it is called, is a source of wealth to many of our citizens, and nothing would induce them more resolutely to oppose the location of a railroad in their vicinity than the knowledge that it would impose on

ing therefrom, there being primarily no obligation on the part of the owner of live-stock to inclose them, persons on whose premises they might stray are obliged to protect themselves from their incursions. From this reasoning, it would appear that where the common-law rule does not control, the company, apart from statutory provision, is compelled to fence or pay for the loss of cattle which, by reason of its not fencing, get upon its roadway and are run into, unless it appears that the accident could not have been avoided by the exercise of ordinary care, reference being had to the circumstances,1 and the burden of proof gencrally is upon the plaintiff to establish negligence, where the statute does not, in terms, make the fact of the collision prima facie evidence thereof.2

them the obligation of keeping their cattle and stock in inclosures. That obligation would not be confined to those in the immediate neighborhood of the road, for cattle, when not confined, frequently stray much further than would be supposed by those not acquainted with their habits. Many farmers have a sufficiency of uninclosed land for the pasturage of their cattle. Shall they be bound to inclose it at a peril of a suit for an injury caused by their cattle which may cost them their estates? The other interests of the State are not all to be made subservient to the railroad interest. That interest enters into competition with other pursuits, with the advantages and privileges the law confers upon it, but there is nothing in it of so over-shadowing a character that all other pursuits must yield to it. There are none who are not impressed with the importance of railroads, and their great utility as the medium of intercourse and commerce. No State that will keep pace with the age but must build and encourage them. But we should be cautious how we clothe them with privileges and immunities, at the cost of the rest of the community, which may enkindle a spirit hostile to their existence and seeking its gratification in their destruction." Gorman v. P. R. R. 26 Mo. 446-7. But under the law of Missouri, as it now stands, a railroad company is not responsible for stock injured by trains when such killing takes place at a part on their road where it is not fenced, and where it does not pass through or along inclosed or cultivated fields or inclosed prairie lands, unless actual negligence be proven. (Musick v. A. & P. R. R. Co. 57 Mo. 134.) “A railroad company is liable for injuries to stock caused by its negligence where the plaintiff has contributed to the injury no further than merely permitting his stock to run at large." (Searles v. R. R. Co. 35 Iowa, 499.) 1 Ill. C. R. R. Co. v. Baker, 47 Ill. 295. "The mere fact that an animal is at large by the" permission of the owner, and is run over and killed by the locomotive, does not justify the conclusion that the injury was occasioned by the willful act of the owner, and in an action against the railroad company to recover for the loss of the animal, the burden of proof to show a willful act on the part of the plaintiff rests on the railroad company. (Stewart v. R. R. Co. 32 Iowa, 561; Memphis R. R. Co. v. Orr, 43 Miss. 288; New Orleans R. R. Co. v. Field, 46 Miss. 573; Id. 578.)

2 Georgia R. R. Co. v. Anderson, 33 Ga. 110; Georgia R. R. & B. Co. v. Munroe, 49 Ga. 373; Cleveland . Q. R. R. Co. 35 Iowa, 220. "In an action against a railroad company to recover for stock killed by a passing train, the burden is

§ 89. As to gates and other openings in fences along railways, the duty of the company is to keep them closed.

The duty by statute imposed upon railroad companies to build fences along the sides of their roadway, so as to prevent animals from straying upon the track and being injured, in conjunction with the further obligation, which, in certain cases, is imposed upon them, of making such crossings as will permit farmers to get, with their wagons or live-stock, across the track, makes a necessity for gates or bars in the fences, and the question of how far the company can be held liable for injury to domestic animals which get upon the track by reason of these gates being left open, or bars down, may become matter of interest.

The general rule deducible from the authorities is, that if such an opening in the fence is left as that cattle may stray upon the track, whether it be by gate or bars, with the consent of the company or without it, and the same is left open an unreasonable length of time, the company is liable for injuries to livestock which may enter through the breach upon the roadway and track, after the agents and employees of the company have had reasonable time to shut the gate, put up the bars, or otherwise close the opening. Nor does it make any difference that none of the employees of the company became aware of the fact that the fence was broken, bars down, or gate left open; it is the duty of the company to not only build, but maintain, the fences prescribed by the statutes, and for dereliction in the performance of that duty the company is liable.2 While the

upon the plaintiff to show either that the killing or injury was done at a point where the company had the right to fence and had not fenced, or that the company were guilty of negligence in causing the injury." (Comstock v. R. R. Co. 32 Iowa, 376.)

1 McDowell . R. R. Co. 37 Barb. 195; Munch v. R. R. Co. 29 Barb. 647; Brown v. R. R. Co. 21 Wis. 39; Chicago Etc. R. R. Co. v. Reid, 24 Ill. 144; Bartlett v. R. R. Co. 20 Iowa, 188; Ind. Etc. R. R. Co. v. Snelling, 16 Ind. 435.

"But a railroad company is not liable for stock killed on their track, unless they have actual or implied notice that the fence was down, or the gate open, and a reasonable time thereafter to put the same in proper condition." (Aylesworth v. R. R. Co. 30 Iowa, 459; Dewey v. R. R. Co. 31 Iowa, 373.)

2 Ill. C. R. R. Co. v. Arnold, 47 Ill. 173. "Where a cow entered the close of another through an insufficient fence upon the highway, and passed from thence through a space made for bars, and used as a farm-crossing, upon the railroad track, and was killed, and it was proved that the bars had been left down for a period

companies are not required to keep such guard over their roads as would immediately make them aware of a breach as soon as it occurs, and immediately to close it, still the law is such as to impose upon the corporation the obligation of keeping employed such a number of men, to be over the roadway daily in such manner as to discover breaches and openings in their fences, and close them before danger results from the breach or opening, allowing animals to get in the way of trains.1 Where the defect or opening in the fence results from the negligence of the owner of the stock injured, the company cannot justly be held responsible.2

§ 90. Reasonable diligence only is imposed on railroad companies in keeping gates shut at farm-crossings. While the law does impose upon railway companies all reasonable diligence in maintaining their fences, it requires of them no more. than reasonable and ordinary care in the matter of so keeping up their fences, the gates closed and bars up, as that cattle will not be likely to get in upon the roadway. They are allowed sufficient time to repair damages to their fences, occurring by storms or other causes, and are not called upon to exercise extraordinary care or diligence in the premises, such as the

of three months: held, that the statute required the railroad company to 'erect and maintain' a sufficient fence, of which the bars were a part, and that the company were guilty of negligence for allowing them to remain down for so long a time." (Great W. R. R. Co. v. Helm, 27 Ill. 199.)

Chicago R. R. Co. v. Harris, 54 Ill. 528. "In an action against a railroad company to recover for injuries to horses inflicted by a train on defendant's road, where it appeared that the horses passed upon the track through an open gate at a farm-crossing, the company, having permitted the gate to remain open for a week previous to the accident, were regarded as guilty of such negligence as rendered them liable."

"A gate in a fence, which the defendant is bound to keep in repair, is to be regarded as a part of the same.' (Eates v. R. R. Co. 63 Me. 308.)

2 Shearman & Redfield on Negligence, 459; Poler v. R. R. Co. 16 N. Y. 476; Perry v. R. R. Co. 36 Iowa, 102. "A railroad company is required to use reasonable care and diligence in keeping up bars leading through the fence inclosing its right of way, and if, by reason of its failing to use such care, stock passes on to its road and are injured, it is liable in an action therefor. But it would not be liable for such injuries if the bars through which the cattle passed on to the track had been left down by the plaintiff or a third person, unless they had continued for such a length of time or under such circumstances in this condition as to justify the inference of negligence on the part of the company in not seeing and putting them up." (Ill. C. R. R. Co. v. Arnold, 47 Ill. 173.)