Clarke courier. [volume] (Berryville, Va.) 1869-1997, 1907-07-10


plainant to show that the injury
was caused by the negligence of
the Company, its employees, agents
or servants"
The first thing in this statute 10
attract attention is that the point
of injury is the test of liability, and
not the point upon which the cattle
came upon the track.
The second thing tO attract at
tention is that this point must be
enclosed not simply fenced.
l294d Q2) details the require
ments as to what must be done to
enclose the track.
First - there must be lawful
fences along the track.
Second - there must be cattle
guards
(a) at the ternini of those por-
tions of the road bed which it i
required To fence
(b) at all public and private
crossings.
No question can be raised rs to
this plaintiff tha; the Company
was required to fence the Thomp-
son laul at the point at which the
INJURY was sustained. II IL be
contended that it was not Obliged
to fence the Kerfoot land then il
seems Ia me ll;at the statute re-
quiresa cattle guard al the tcrniini
of the Thompson land. that being
the termini of that portion of the
track which it was required "a
fence. - If on the other hand il WAS
required to fence .he Kerfoot land
then without doubt it should have
placed cattle guard at the private
crossing.
The policy that i evident
throughoutthe various provisions of
this statute is that the tre X shall be
enclosed. Carrying out this policy
it is provided, that where the obi
CATION to fence ceases. that portion
required 20 be fenced shall be en-
closed by Il cattle guard. This
enclosure by cattle guard is rs
peremptory a the requirement 10
fence. The Legislature evidently
thought that fence would not be n
sufficient protection if cattle might
be allowed To stray upon the track
through unprotected avenues of
ingresS. The object of the law is
To require railroads TO keep cattle
off their road he'd. This can only
be done by enclosing the road bed
of which the cattle guard is an eS-
sential feature. The track through
the Thompson land was not enclos-
eel becaused at the terminal catt lie
guard did not prevent ingress, if
at the terminal the obligation to
further fence ceased.
Q3) referring TO U2) says "thc
preceding section So far as it re-
lateS to fencing &c" shall not apply.
where accompany has compensated
for fencing. The preceding sec
tion referred to cattld guards at
terminals. Q3) does not say that
U2) shall not apply. but only
so far it relates to fencing. "
Those limiting and qualifying
words must be given Significance
and the only significance they
admit of is that 12) does apply
except so far as the limiting words
qualify its application. The rail
road having paid the land owner to
build the fence quoad him should
not be held responsible by him for
failure to fence, but there is no
exemption as to 4 cattle guard, ms
there was no compensation for one,
which would protect the road bed,
which it was required to fence for
his protection.
This reasoning brings motto this
conclusion, that the road bed
through the Thompson land should
have been enclosed under the per
emptory provisions of the statute.
and that Kerfoot was>as much en-
titled to the benefit of this re
quirement as any body else. The
fact that the railroad Company was
not obliged to enclose the Kerfoot
land did not exempt from the re-
quirement To enclose theThompson
land, and if the claim of the railroad
is well taken that quoad Kerfoot
its obligation To fence ended with
the Thompson land then under the
other provision of the statute il
should at that point have erected a
cattle guard.