Great Western Railroad of 1859 v. Helm

Caton, C. J. The principal objection to this declaration is, that it does not negative the possibility that the stock may have been killed at a farm crossing. The statute does not exempt the company from fencing their roads at farm crossings, nor does it exempt it from liability for killing stock at such crossings if the road is not there fenced; but it expressly provides that it shall fence at farm crossings, specifying the kind of fence which shall be made at such places; that is to say, bars or gates for the accommodation of the farmers. This specification of the kind of fence does not alter the case from what it would be if the law had prescribed live hedges or stone walls in certain localities. If the stock was killed at a farm crossing, where the company had made such a fence as the law required, which some one had left down or open without the fault of the company, whereby the stock got in and was killed, that was a matter of defense for the company, and need not be negatived. It is hardly necessary to remark, that even if any objection could ever have been urged to the declaration because the wrong is laid with a eontvnuendo, that should have been done by demurrer, and it is too late now, after issue was joined upon it, trial had and judgment rendered, to assign it for error here. The declaration is good, in substance at least, and is undoubtedly sufficient to sustain the judgment. The judgment is affirmed. Judgment affirmed.