Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-06-15
DIGESTED BY W. B. MARTIN.
EXCLUSIVELY FOR
NEUTRALITY-SUSPICIOUS..
Notes OF Cases Recently Decided,
Which are of Interest to
Our People.
WINKLER ". C. C N. w RY. co.
Supreme Court OF North Carolina.
April II, 1900.

A RAILROAD COMPANY IS LIABLE
FOR INJURIES CAUSED A HORSE
RUNNING AT LARGE In A PAS.
TURE, BY a BARRED WIRE
FENCE NEGLIGENTLY CON-
STRUGGLED AND MAINTAINED
BY 1T ALONG THE EDGE OF
THE PASTURE. AND WHICH
WAS LIKELY TO CAUSE IN
JURY TO STOCK RUNNING in
SAID PASTURE. SUCH a FENCE
CONSTITUTES A NUISANCE.
The court says:
The defendant erected 10 barb wirn
renee along its right of way There
was evidence that 1t was ncgligently
erected and maintained. lin some
ptaces lit was II inches high. 81 id from
thtpt TO 80 OF So inches from the ground
To the top wire. Three stands Of wire
were USED. and it, was put so far apnru
mat 'when people crossed II it swagged
INV u1wH ABOUT II inches in some places.
The posts were old rotten cross-ti ties, 40
or "o feet apart" The piaintff's
horse. running in his pasture, got en-
tangled in this wire fence and was in
1ured. and this action is brought for
damages sustained.
ut was error in the judge to noneIui:
the plaintiff. THE act of Il land ow4ler
In erecting upon his property along
u public highway a barb-wire fence
does not in itself render him liable to
one VINO sustainS an injury therefrom,
but. If he negligcntly constructs and
maintains 1t in such n manner as to
be dangerous, he is liable. for instance
Tor injury To al animal which is at
tracted by other animals, or by grass
growing inside the fence. and in en-
deavoring TO cross such defective fence
becomes etatanEled therein"
The liability of the defendant in this
case Is that which would attach to
any one else putting up n detective
fence. which is. from it's peculiar ma
.ture. thereby mads dangerous,
Chapter 65 of the laws of 1895 makes
IT unlawfu TO erect n barb wire fence
along any public road or highway. I'M
less a railing is placed on the top of
me fence; not less than three Inches
ltgl. II is perhaps to be regretted
that THIS act IL restricted to the counties
therein named. BUT, though Catawba
(whcnce this appeal comes) is one of
such counties. we think the act has no
application here for the railroad.
though public highway in some senses,
is not such within tlh, purview of this
act which was evidently intended for
the protection of live stock passing
along public road. Nor does it make
any difference that Catawba county IS
within the limits of the mo fence ter
ritory." In which stock are prob ebted
track OF the defendant passed through
the plaintiffs pasture. where his stock
mad right to run. unless the defend
ant fenced up its right of way, but.
even If 1t were othrwise. and the plain
tiff's horse was illegally running at
large. II was not con tributory neglf-
gence. Nor could contrlbutory negli-
Ecnce be considered on a motion to
nonsuit
The plaintiff was liable for the tres
passes If the animal was Illegally at
large. and the horse could be i'm
pounded; but the defendant had no
right to catch him in n barbed-wir
trap. and wind him us in its meshes.
ms m@rcilcss as the coils which crush
cd LAGOON and his sons. The de-
fendant was not compelled to nut uD n
fence at all. but, if 1t did so, it should
not he put UP in n negligent MANNER,
calculated 10 injure live stock. "Sic
utere tue mt allenum non laetlas." II
is not claimed that the defendant did so
Intentionally. The ground for dam
nses Is me Defendants negligence in
maintaining barbed- wire fence in
such negligent condition that the
morse. running In his owners pasture
was caught and cut by an impede
ment. which. In view OF the nature of
the animal, cnticed him to try to cross
It, instead OF being high enough and
tight enough to hold him hack
But here the wire fence Is dangerous
ny the manner in which it Is put up
it was likely to injure, for 1T was on
the edge Of a neighbor's pasture
where his live stock would be likely
to come. and If they came. would al
most certainly be ensnared. BY it's To-
cation, ana the probability Of It's caus-
ing injury at that place in it's defec-
tive state 1t was a nuisance. Affirmed
BERGMAN v. HENDRICKsoN.
Supreme Court Of Wisconsin