682. LIABILITY UNDEK THE STATUTES. 



missioners had not excused it from fencing there.^^* But 

 where the duty to fence was imperative it was held to be no 

 defence that the stock strayed across the unfenced track of 

 another company and that a fence between the tracks would 

 be dangerous to human life.^'*^ 



The question of convenience is an important one to be 

 considered in deciding whether a company has been negli- 

 gent in failing to fence. Where there was a saw-mill fifty feet 

 from the track and the intervening ground was used by the 

 owners of the mill for piling lumber and loading it on cars 

 and by the public for passing to and from the mill with logs 

 and lumber and piling wood to be sold to the railroad com- 

 pany, it was held that no fence was necessary and the com- 

 pany was not liable for the death of an animal that got upon 

 the track. ^^^ So, where an action was brought to recover 

 for the loss of a horse and cart by falling into a river through 

 the negligence of the company in not providing cap-logs 

 for its pier, it was held that the company might show that 

 such logs would interfere with the loading of vessels in the 

 course of its business.^ ^'^ And, in general, a company is not 

 required to fence at places where a fence would interfere with 

 its own rights in operating its road or transacting its business, 

 nor where the rights of the public in travelling or doing busi- 

 ness with the company would be interfered with, nor where 

 a fence would imperil the lives of its employees.^^* And it 

 was held that it need not fence where the result of fencing 

 would be to cut itself off from the use of its own land or 

 leased property or buildings, although the buildings might 

 not be in proper use.^®^ The burden of proof is on the com- 



"* Gallagher v. N. Y. & N. E. R. Co., 57 Conn. 442. 

 "• Kelver v. N. Y., C. & St. L. R. Co., 126 N. Y. 365. 

 "" Pittsburg, C. & St. L. R. Co. v. Bowyer, 45 Ind. 496. 

 "" Philadelphia & R. R. Co. v. Ervin, 89 Pa. St. 71. 

 "* Evansville & T. H. R .Co. v. Willis, 93 Ind. 507; Donald v. Minne- 

 apolis, St. P. & S. S. M. R. Co., 113 Mich. 484. 

 '"^ Jeffersonville, M. & I. R. Co. v. Beatty, 36 Ind. 15. 



