Halverson v. Minneapolis & St. Louis Railway Co.

Mitchell, J.1 We are of opinion that a wire fence constructed in accordance with the provisions of Gen. St. 1838, c. 18, § 2, would be a compliance with Gen. St. 1878, c. 34, § 54, requiring railroad companies to fence their roads. This was held arguendo in Fitzgerald v. [89] St. P., M. & M. Ry. Co., 29 Minn. 336. .The statute expressly provides that such a fence shall be sufficient and a compliance with the law, “in all cases where any law of this state requires to be erected or maintained any fence or fences for any purpose whatever.” Gen. St. 1878, c. 3i, § 55, provides that railroad companies “shall be liable for domestic animals killed or injured by the negligence of such companies ; and a failure to build fences * * shall be deemed an act of negligence.” No distinction is here made between different kinds of domestic animals. Whenever the building and maintaining of a fence would have prevented the accident, then the negligence of the company in not fencing its road is the cause of the injury, and it is liable, under the statute, regardless of the species of the domestic animal killed or injured. In the case of certain animals, such as horses, it would be clear, as & matter of law, that a fence would “turn” them; in the case of others, like sheep or swine, this would be a question of fact depending on the size of the animals. In this case, the animal killed (a hog) was of a species that might be turned by a lawful fence, and the evidence as to the size of the animal does not so clearly or conclusively show that it would not that we can say that the trial justice erred in finding that the negligence of the company in failing to fence was the cause of the injury. Judgment affirmed. Note. Joseph Wessbecher v. Minneapolis & St. Louis Railway Company. Appeal by defendant from an order of tlie district court for Carver county, Macdonald, J., presiding, refusing a new trial. II. J. Peek, for appellant. E. Southworth, for respondent. Mitchell, J. Tlie case follows Halverson v. Minn. & St. Louis Ry. Co., supra. Order affirmed. Footnotes [1] Dickinson, J., because of illness, took no part in this decision.