ACTION ; PARTIES ; PLEADING. 687 



and causes the derailment of a train, an employee injured may 

 sue the company, — the statute being designed to protect per- 

 sons on trains as well as cattle owners.^^^ He cannot, how- 

 ever, in such a case recover from the owner of the animal. ^^^ 

 The question as to who are proper defendants to a common- 

 law action based on negligence has been already discussed,^^^ 

 and many of the decisions thereon are applicable to statutory 

 actions based on the failure to fence. In New York the com- 

 pany owning the road is liable for the omission to erect fences 

 and cattle-guards, and not the company having permission 

 to run trains over the road, by lease or otherwise ; ^^" though 

 this rule does not apply where the charter rights of the latter 

 company are practically equivalent to ownership.^^" In some 

 States both the company owning and the company operating 

 the road are liable.^^^ In others, the company owning the 

 road remains liable for the killing of animals by another com- 

 pany on unfenced portions of the road.'^^ In Iowa, the rule 

 was formerly similar to that in New York, but by later legis- 



="' Atchison, T. & S. F. R. Co. v. Reesman, 60 Fed. Rep. 370. The 

 defence that the injury was caused by the negligence of a fellow-servant 

 was held not applicable, as the duty cast by the statute on the company 

 cannot be delegated by it to its servants. 



^ Child V. Hearn, L. R. g Ex. 176. ="' See § 135, supra. 



"" Edwards v. Buffalo, R. & P. R. Co., 8 N. Y. App. Div. 390; Parker 

 V. Rensselaer & S. R. Co., 16 Barb. (N. Y.) 315. 



''"Tracy v. Troy & B. R. Co., 55 Barb. (N. Y.) 529, as distinguished in 

 Edwards v. Buffalo, R. & P. R. Co., supra. This case was affirmed in 

 38 N. Y. 433. 



'" East St. Louis & C. R. Co. v. Gerber, 82 111. 632; 111. Cent. R. Co. v. 

 Kanouse, 39 id. 272; Sinclair v. Mo., K. & T. R. Co., 70 Mo. App. 588; 

 Price V. Barnard, Ibid. 175; Eaton v. Oreg. R. & Nav. Co., 19 Oreg. 391; 

 Oreg. R. & Nav. Co. v. Dacres, i Wash. 195. See McCall v. Chamber- 

 lain, 13 Wis. 637; Vermont R. Co. v. Paquette, 2 Leg. News (Can.) 390. 

 See, also, 58 Amer. St. Rep. 152 n. 



'=« Fontaine v. South. Pac. R. Co., 54 Cal. 645; Kansas City, Ft. S. & 

 G. R. Co. V. Ewing, 23 Kan. 273. And see Wyman v. Penobscot & K. R. 

 Co., 46 Me. 162. 



A company that has leased its road is liable to the owner of a field for 

 damages to crops caused by its failure to construct proper cattle-guards: 

 St. Louis, W. & W. R. Co. V. Curl, 28 Kan. 622. 



