Hook v. Worcester & Nashua Railroad

Clark, J. A railroad corporation is not liable for damages happening to animals upon its track, unless such damages result from the fault or negligence of the corporation. The fact that the plaintiff’s colts, being upon the defendants’ railroad, were killed by the defendants’ engine, and the plaintiff has thereby suffered damage, is not evidence to be submitted to the jury to charge the defendants with negligence, when it is admitted that it is not in fault as to the sufficiency of the fences and bars, or in the management and running of its trains. The duty of railroad corporations to erect and maintain a sufficient fence on each side of their road, and to make gates, crossings, cattle- *252 passes, and other facilities for owners of land divided thereby, is a duty created and imposed by statute; and where sufficient fences, with suitable gates or bars for the convenience of the owner of the land, have been erected, nothing further is required but to keep such fences, gates, and bars in suitable repair. The language of the statute is, “ The proprietors of every railroad shall erect and maintain a sufficient fence,” &c. Gen. St., c. 148, s. 1. The word maintain, in the statute, clearly means “ keep in repair,” or “ keep in the same condition.” They are to erect a sufficient fence, and keep it sufficient. They are to make gates, crossings, and other facilities for the landowner, and keep them in proper condition for use. And when the proprietors of a railroad have done this, they have done all that the law requires them to do, and owe no further duty, in relation to fences, to the adjoining land-owner. Gates and bars are constructed for the accommodation of the landowner, to be opened and closed to suit his convenience. The proprietors of the railroad have no control over them. They have no right to keep them open continually, thereby leaving the land uninclosed, nor to keep them closed continually, thereby depriving the land-owner of their use; and to hold that they are guilty of negligence unless they close the gates or bars whenever the land-owner or his servants choose to leave them open, would be equivalent to holding that it is their duty to keep a servant at hand, ready to close the gates or replace the bars whenever the land-owner or his servants may choose to open them, which would be unreasonable. Shearman & Redfield on Negligence, s. 472; 1 Redf. on Railways, *495; ib. *467; 1 Addison on Torts 221; Waldron v. P. S. & P. Railroad, 35 Me. 422; Eames v. Railway, 14 Allen 151. The admission that the fence and bars were sufficient, and that there was no negligence in the management of the train at the time of the accident, was an admission that the defendants were not in fault for the accident. If the defendants were not in fault, it is immaterial .whether the plaintiff was in the exercise of ordinary care or not. The instructions asked for by the defendants should have been given. The court might properly have directed a verdict for the defendants. Verdict set aside. Stanley, J., did not sit.