680 LIABILITY IRRESPECTIVE OF FENCING LAWS. 



not render the company liable for injuring such animals, — 

 its principal duty being to its passengers. ^^ 



In North Carolina it was held that a company must re- 

 move bushes or other growth, calculated to obstruct the view 

 of its engineers, to the outer bank of the side ditches, or 

 from all the ground of which it assumes actual dominion for 

 corporate purposes, and if it fails to do so and a horse is 

 killed because concealed in the bushes, it is liable.^* But in 

 a Texas case it was held that the company was not guilty of 

 negligence as a matter of law where it permitted weeds to 

 grow on the roadbed whereby a cow was struck and a passen- 

 ger injured — negligence being aquestion of fact for the jury.-^ 

 And in Arkansas it was held that the fact that a clump of 

 bushes was allowed to grow so that trainmen could not see, 

 was not neghgence. The court said : "This measure of 

 vigilance does not require a lookout over the entire breadth of 

 the right of way and an apprehension of danger whenever an 

 animal is discovered upon it. . . . How then can it be said 

 that the company owes him the duty of keeping the right of 

 way in such a condition as to afiford its employees a view 

 of it?"2« 



The company is not required to keep excavations along 

 the sides of the track free from water and ice, and is not 

 liable for animals killed in consequence of ice being therein, 

 so as to prevent escape from the track.^'' 



'■"Kirk V. Norfolk & W. R. Co., 41 W. Va. 722; Louisville, N. O. & 

 T. R. Co. V. Phillips (Miss.), 12 South. Rep. 825. 



''Ward V. Wilmington & W. R. Co., 113 N. C. 566. And see Same v. 

 Same, 109 id. 358. 



'^ San Antonio & A. P. R. Co. v. Long, 4 Tex. Civ. App. 497. And see 

 Eames v. Tex. & N. O. R. Co., 63 Tex. 660, where the company was held 

 hable, the facts being admitted by demurrer. The court said: "It is a 

 question of fact, in the given case, whether the omission or neglect, which 

 IS imputed as the cause of the accident, constituted neglect or not." 



'" Kansas City, S. & M. R. Co. v. Kirksey, 48 Ark. 366. 



For cases on the necessity of keeping a lookout, see § 132, infra. 



-' Peoria & R. I. R. Co. v. McClenahan, 74 111. 435. 



