#### McCall vs. Chamberlain.

Section 15, chap. 122, General Laws of 1856, required the LaCrosse & Milwaukee Railroad Company to fence its road in parcels, each to be fenced within one year after it was put in operation. *Held,*that the object of this statute was not merely to regulate the division fences, as between the company and the adjoining landholders, but was to protect the public generally.

*Held*further, that if the company neglected to make such fence, beyond the year limited, it would be liable for all damages to animals straying on the track through the want of such fence, without reference to the question whether there'was negligence or want of skill in managing the cars at the time of the injury, or to the question whether such animals were rightfully or wrongfully on the adjoining land from which they escaped on to the track.

The lessee of the road, operating it for his own benefit, takes it subject to all duties imposed upon the company for the benefit of the public, and incurs the same liability for damages occasioned _by the want of fences, that the company would.

ERBOR to tbe Circuit Court for *Milwaukee*County.

*Alva*Stewart, for plaintiff in error:

1. Tbe defendant, as lessee of tbe road, acquired no greater rights or immunities than the company possessed. 10 Cush. (Mass.), 562. 2. Tbe company was required by tbe statute to fence for tbe protection, of tbe public, and it makes no difference in its liability for ¡the damages resulting from a willful violation of tbe statute,; whether horses killed were rightfully or wrongfully on the adjoining land. 3 Kern., 42; 71 E. C. L., 609; 8 Barb. ,(S. C.), 358 ; id., 390 ; 25 Yt. (2 Dean), 116; 25 Ala., 229 ; 5 lad., Ill; 39 Me. (4 Heath), 273 ; 10 Rich. Law, 227 ; 6 Ind., 441.

fflmmons, *Van Dyke*& Hamilton, for defendants

in error, contended that tbe statute relied upon by tbe plaintiff did not render tbe defendant liable for injuries happening to animals on tbe track, whose owner was ¡ not proprietor of adjacent lands, in tbe absence of proof of negligence on tbe part of tbe defendant, and regardless of whether tbe plaintiff’s negligence contributed to tbe occurrence *(Stuclce vs. Mil & Miss. B. B. Co.,*9 Wis., 202) ; that tbe cases in England, New York, Indiana, Maine, Yermont and South Carolina are inapplicable here; that in New York tbe statute expressly provided that tbe railroads should be liable in such cases; that in Indiana tbe statute, in terms, withdrew from *638cons^ei’a^ori justice the negligence of the plaintiff a defense; that in South Carolina land holders are not required to *fence in*(as by the common law), but to *fence out*that the English statute required the company to keep the gates across the railway closed, so as *“*to prevent cattle or horses passing along the road from entering upon the railway,” which was construed to apply to strays as well as to animals driven; and that the case in 25 Vt. was an action by the owner of the land adjoining the track. Counsel cited as applicable to this case, 24 Vt, 487; 20 III, 221; id., 478; 21 id., 186.

May 15.

*By the Court,*

PAINE, J.

This action was brought to recover of the defendant, as lessee of the La Crosse and Milwaukee Railroad, damages for the alleged killing, by the cars, of three mares and a colt belonging to the plaintiff After the plaintiff’s evidence was closed, the defendant moved for a nonsuit, which was granted.

The evidence upon the fact of the horses having been killed by the cars was circumstantial, but it was clearly sufficient to have been submitted to the jury. Still if the plaintiff’s right of action depended upon showing negligence or unskillfulness in the management of the train at the time of the killing, perhaps there was not sufficient evidence upon that point to warrant the court in submitting the question to the jury. But even assuming that there was no negligence or want of skill in managing the cars at that time, we are still of the opinion that the nonsuit was improperly granted. The law made it the duty of the company to fence every part of the road within one year after it should commence operating such part. It was admitted that the part where the horses were killed, if killed at all, had been in operation more than a year, and was not fenced. That being so, we think the company would have been liable for any animals killed on that part of the track, without reference to the question whether there was negligence in managing the cars at the time of the killing, or to the question whether such animals were rightfully-or wrongfully on the adjoining land from which they had passed .upon the track. That they *639would be liable to tbe owner of tbe adjoining land for injuries to bis animals escaping on tbe track from a defect fences wbicb tbe company was bound to make, there can be no question. *Hurd vs. R. R. Co.,*25 Vt., 116; *Norris vs. R. R. Co.,*39 Me., 273. And tbe case of *Corwin vs. R. R. Co.,*3 Kern., 42, goes to tbe full extent of holding tbe company liable, not only to tbe owner of tbe adjoining lands, but to tbe owner of cattle which were trespassers on such adjoining lands. Tbe counsel for tbe defendant contended that this decision was based upon tbe positive provision of tbe statute in New York, wbicb, after requiring tbe companies to fence their roads, enacted that until such fences were erected, they should be liable for all damages done to animals on tbe track. Our statute does not contain this provision, and hence it is said that decision was inapplicable. But we do not think tbe decision in New York was placed upon tbe provision as to tbe liability of tbe companies. It is true tbe court mentions tbe positive provisions of tbe statute, as was very natural where tbe statute contained those provisions. But we think the result would have been tbe same, if it bad simply imposed tbe duty to fence, and said nothing about its liability for not doing it. For we understand it to be a general principle that where tbe law imposes upon any person a specific duty for tbe protection or benefit of others, if be neglects to perform that duty be is liable to those for whose benefit it was imposed, for any damages sustained by reason of such neglect. It is upon this principle that those cases proceed, which have held tbe company liable to the owner of adjoining lands whose animals escaped therefrom on to tbe track, for want of fences wbicb tbe company was bound to make. In most of that class of cases there was no positive provision that tbe company should be liable, but tbe liability was left to result from an application of tbe general principle before stated. And there being no room for doubt that tbe company was bound to fence for tbe protection of adjoining land owners, whenever their cattle bad been injured for want of such fence, tbe companies have been held liable, whether tbe stat*640utes contained an express provision that they should be so not.

The only question upon which it would seem there could be any room for doubt, is whether the statute requiring the company to fence, was intended merely to regulate the division fences between the company and the adjoining land owners, for the convenience of the latter only, leaving the liability, of the company, with respect to all others, as it would have been at the common law, or whether it was designed for the protection of the public generally, whose animals were liable to get upon the track. This question is suggested in the case in 3 Kernan, and the court come to the conclusion that the latter was the object of the statute. That conclusion seems to us more especially true in this state, many parts of which are thinly settled, and where it is almost the invariable custom for the settlers to allow their animals to run at large, fencing only their plowed lands. The rule of the common law requiring every one to fence in his own animals, under pain of their being considered trespassers if they entered even on the unenclosed lands of another, if strictly enforced, is often productive of hardships in a new country like ours. Eor this reason it has never been adopted in some of the states. *Murray vs. R. R. Co.,*10 Rich. Law, 227; *R. R. Co. vs. Peacock,*25 Ala., 229. It has been held to be the law in this state, though it is- generally disregarded by common consent in the newly settled parts of the state. And this fact, which was undoubtedly well known to the legislature, as well as the frequent hardships resulting from the strict enforcement of the common law rule, leads our minds to the conclusion that it was the intention of the statute, in requiring the railroad company to fence its road, to repeal the common law rule, and to protect not only the adjoining land owners, but the public generally. This conclusion being arrived at, the liability of the company for damages to animals not belonging to the owner of adjoining lands, is as clear as its liability to the owner of such lands. The protection of both being equally within the scope and object of the statute, they are equally entitled to an action for damages occasioned by a neglect of the duty *641imposed. And it is as unnecessary in tbe one case as in tbe other, for tbe statute to say expressly that tbe liability exist. Having imposed tbe duty, tbe liability for damages occasioned by neglect of that duty, is implied though not expressed. Tbe case of *Fawcett vs. R. R. Co.,*71 E. C. L., 609, fully sustains our conclusion, and is a complete answer to tbe objection that tbe plaintiff’s horses were trespassers on tbe lands adjoining tbe railroad. We think tbe opinions in that case entirely applicable to tbe questions presented here.

And we have no doubt that a lessee in possession of tbe road incurs tbe same liability as tbe company. He takes tbe road, if at all, subject to tbe duty imposed on tbe company for tbe benefit and protection of tbe public. *Linfield vs. R. R. Co.,*10 Cush., 562. There would be no safety in any other rule.

Tbe judgment is reversed, with costs, and a new trial ordered.