Chicago & Grand Trunk Railway Co. v. Campbell

Cooley, J. This action originated in justice’s court, where Mrs. Campbell recovered the value of a cow killed on the track of the railway company by one of its passing trains. The case was removed to the circuit court by certiorari and thence after affirmance to this court by writ of error. It is [266] objected that there is no assignment of errors in this court; but that is not essential in such a case. The assignment contained in the affidavit for cerbiora/ri accompanies the record to the final conclusion. On the merits the question is whether the evidence tended to establish a liability; and we are constrained to say it did not. No negligence is imputed to the company in the running of its trains; but it is agreed that it was negligent in not so guarding its track by fences that the cow could not have gone upon it. The statement of the evidence is not so full and specific as it ought to have been, but the facts seem to be the following: The plaintiff lived near Emmet station, and allowed her cow to run at large. The cow wandered upon the track of the railway some 160 or 200 yards east of the station-house, and was there run upon and killed. The statute requires the conrpany to fence its track and to put in cattle-guards at road crossings; but this requirement has no reference to station grounds. Flint etc. Railway Co. v. Lull 28 Mich. 515. Strictly speaking, perhaps, the place where this cow was killed was not within the station grounds, but it constituted the approach to it, and could not have been fenced without incommoding the company and the public in the transaction of the freight business of the road. The case is therefore within the reason of the case above cited. The regulation for the fencing of the track is established for the public protection and convenience, and a ease that incommodes the public is by implication excepted. It would be wholly unreasonable to obstruct with gates the passage of teams to and from the railroad warehouse in order that cattle might safely go at large. The policy of State legislation is against cattle roaming at large, and on a railroad track they are trespassers. The statute for reasons of general protection makes a railroad company liable for their destruction where the fencing is neglected and they wander upon the track in consequence; but there is no statutory neglect when the place is one which the common convenience of the public and the railway company requires should be open for the transaction of their [267] mutual business. This, on the evidence, appears to have been the case here. The judgment must be reversed, with costs of all the courts. The other Justices concurred.