Warren v. K. & D. M. R.

Day, J. — On the trial evidence was introduced to the effect that, at the time of the injury to plaintiff’s mares, they were being pastured for him in one Nathaniel Bell’s pasture, then in the possession of one Salee, as tenant of Bell, and bordering on defendant’s road, and from which they escaped and came upon defendant’s track through the defective fence or gates bounding the same on defendant’s road. [486] • The defendant offered in evidence an instrument of writing, for the purpose of proving that Nathaniel Bell the owner of the pasture, had agreed with the company, for a valuable consideration, to erect said fence and its gates -and keep them in repair. The court rejected this testimony. In this ruling consists the only alleged error assigned. i ownerooníenel: Injury to stock. It cannot be doubted that Nathaniel Bell, having agreed to erect and keep in repair the fence between his pasture and the railroad, could not recover of defendant damages resulting to his stock on account of the want a fence or its lack of repair. And it may be that his tenant, Salee, because, of the privity of estate, would be in the same position as to injuries sustained by his stock. But it is very evident that the relation existing between the plaintiff and Salee is altogether different from that existing between.Salee and Bell. The tenant, if he exacted no covenant from his landlord to repair, would be bound to make reasonable repairs himself. And for that purpose he would be entitled to make reasonable use of timber upon the premises. But plaintiff, by simply acquiring the right to depasture his animals upon the premises, entered into no privity of estate with the tenant. He assumed no obligation to repair, nor did he acquire any right to enter upon the land, or make use of timber for that purpose. Section 1289, of the Code of 1873, provides that any corporation operating a railway, that fails to fence the same against live stock running at large, at all points where such right to fence exists, shall be liable to the owner of any such stock injured or killed by reason of the want of such fence, for the value of the property ov damage caused, and that if such corporation neglects to pay the value of, or damage done to, such stock within thirty days after due notice in writing accompanied by an affidavit of the loss, it shall be liable for double the value of the stock killed or the damages caused thereto. Any owner of stock killed is entitled to the provisions of this act, who does not cause the injury by his willful act or the act of his agent. It is true, as we have before intimated, [487] a party may by his contract estop himself from insisting upon the provisions of this section. But this estoppel can operate only upon himself and his privies. 2.-: —. The primary obligation to fence rests upon the railroad company, and it cannot escape general responsibility by securing the obligation of another to erect and maintain the fence. If stock is injured by the want of a fence, the owner is entitled to the remedy provided by statute, which allows him to recover double damages, if payment is not made within thirty days from due service of notice of loss. If the railroad company has the obligation of another to fence, it must look to him for indemnity. If the plaintiff in this case had been a traveler who stopped for the night, and turned his horse into Salee’s pasture, would it be claimed that there was such privity between plaintiff and Salee and Bell that plaintiff could not recover from the railroad company the value of his horse, killed on defendant’s track because of a defective fence? It seems to us such a position would not be maintained. Yet the facts of this case are not distinguishable in principle from the one supposed. It can make no difference whether the plaintiff hire the right to pasture for one night, or for a week, or a month, or a longer period. In either case he has a right to expect that a railroad company will maintain proper fences along its track, and, in the event of its failure, to demand the compensation which the law provides. The evidence offered was properly rejected. Affirmed.