GENKRA], LIABILITY FOK FAILURE TO EENCE. (]r)3 



erected is reg-arded as negligence.* But in a Wasliington case 

 it was held that where a statute made the company liable ex- 

 cept where there was a fence and there was no statute making 

 it the company's duty to have a fence, the statute was uncon- 

 stitutional as exacting a penalty from one guilty of no fault.* 



Where railroad companies are required by statute to fence 

 their tracks, one of the principal objects in view appears to 

 have been the protection of passengers and employees travel- 

 ling on the trains.^ 



The statute applies, however, to freight trains as well as to 

 passenger trains." So far as intruders on the track are con- 

 cerned, fences are required for the protection of animals, not 

 of reasonable beings.'' And the failure to fence does not 

 make the company liable for injuries caused by animals pass- 

 ing from the track to adjacent fields;^ nor for the death of 

 stock caused by falling down an unfenced embankment on to 



' See Edwards v. Hannibal & St. J. R. Co., 66 Mo. 567; Hindman v. 

 Oreg. R. & N. Co.. 17 Oreg. 614; New York, C. & St. L. R. Co. v. 

 Zumbaugh, n Ind. App. 107; Welsh v. Chic, B. & Q. R. Co., 53 la. 632. 



In Missouri the failure to fence in unenclosed land will not make the 

 company amenable unless the land is shown to be prairie land: Cary v. 

 St. Louis, K. C. & N. R. Co., 60 Mo. 209. 



And in Oregon it has been held that a statute prescribing a fence which 

 shall be deemed sufficient makes fencing a duty and may make the lia- 

 bility absolute: Sullivan v. Oreg. R. & N. Co., 19 Oreg. 319. 



In an Ohio case it was held that where the company fails to fence, it 

 takes the risk of animals running on the track and must use ordinary 

 care in such a case: Kerwhacker v. Cleveland, C. & C. R. Co., 3 O. St. 172. 



* Oreg. R. & N. Co. v. Smalley, i Wash. 206. 



' See Toledo & W. R. Co. v. Fowler, 22 Ind. 316; New Albany & S, R. 

 Co. V. Maiden, 12 id. 10; JefJersonville, M. & I. R. Co. v. Nichols, 30 id. 

 321; Mo. Pac. R. Co. V. Harrelson, 44 Kan. 253; Neversorry v. Duluth, 

 S. S. & A. R. Co. (Mich.), 73 N. W. Rep. 125; Dickson v. Omaha & St. 

 L. R. Co., 124 Mo. 140; Atchison, T. & S. F. R. Co. v. Recsman, 60 Fed. 

 Rep. 370. 



Otherwise in England: Buxton v. North Eastern R. Co., L. R. 3 Q B. 

 549- 



" Indianapolis & C. R. Co. v. Snelling, 16 Ind. 43S. 



' Nolan V. N. Y., N. H. & H. R. Co., 53 Conn. 461. 



' Clark V: Hannibal & St. J. R. Co., 36 Mo. 202; Cannon v. Louisville, 

 E. & St. L. C. R. Co., 34 111- App. 640. 



