
    JAMES WALSH, Appellant, v. THE VIRGINIA AND TRUCKEE RAILROAD COMPANY, Respondent.
    Liability of Railboads fob Injubies to Domestic Animals. The leading principle of the numerous cases in reference to the liability of railroad companies for injuries to domestic animals, is that such liability is founded only upon negligence or omission of duty on the part of the company.
    No Action fob Accident in Prosecution of Lawful Act. If, in the prosecution of a lawful act, an accident, which is purely an accident, arises, no action can be maintained for an injury resulting therefrom.
    Rights of Railboads to Exclusive Possession of Railboad Lands. A railroad company has the right to the possession of the land taken for the purpose of its road, and that possession is the right to its exclusive enjoyment; and to exclude all persons and beasts therefrom at any and all times.
    Action Against Railboad fob Negligence in Killing Cattle — Bubden of Proof. In an action against a railroad company for killing a domestic animal, which has strayed upon its track from land not belonging to its owner, it is incumbent on the plaintiff to show negligence on the part of the company.
    Mere Killing of Animal by Railboad not Evidence of Negligence. The mere killing of a domestic animal by a railroad train is not evidence of negligence on the part of the railroad company.
    Construction of Railboad Law as to Eences. The railroad law in reference to fences (Stats. 1864-5, 427, Sec. 40) providing that companies shall “ maintain a good and sufficient fence on either or both sides of their property,” taken in connection with the further provision that they shall be liable for the killing of domestic animals “ when they stray upon their line of road where it passes through or alongside of the property of the owners thereof,” simply requires companies to fence their road where it may run through or alongside of the land of private individuals; that is, on either or both sides, as occasion may demand; and even then the fencing is only for the protection of adjoining owners, and no other person can complain of the want of it.
    Railboads need not Hence on Public Land. Our railroad law (Stats. 1864-5, 427, Sec. 40) does not require railroad companies to' fence their road where it runs through public land.
    Railboad, when Liable eoe Killing Stealing Cattle. If cattle stray upon a railroad directly from the land of their owner, and by reason of the failure on the part of the company to fence their road at that point, and are killed, tho company would be held liable under the railroad act (Stats, 1864-5, 427, See. 40) on a simple showing of the facts of such killing and neglect to fence, without any further showing of negligence; but it is otherwise if they stray from public land or from land not belonging to their owner.
    Appeal from tbe District Court of tbe First Judicial District, Storey County.
    Tbis was an action to recover $301 for killing a cow wbicb bad strayed on tbe defendant’s railroad track in tbe western part of tbe town of Gold Hill, in Storey County. Tbe land at tbat point over wbicb tbe road runs, and tbat from wbicb tbe cow strayed, is uninclosed public land. On tbe trial in tbe court below, wben tbe plaintiff rested, tbe defendant moved for a non-suit on tbe ground tbat tbe evidence failed to show tbat tbe killing of tbe cow was occasioned by any negligence or want of due care and caution on tbe part of defendant or its agents. Tbe motion was sustained and judgment rendered for defendant. Plaintiff appealed from tbe judgment.
    
      W. F. F. Deal, for Appellant.
    I. It was not negligence in plaintiff to allow bis cow to run at large. It was shown to bave been tbe custom of tbe country to permit cattle to run at large upon tbe public land on eacb side of defendant’s railroad, and tbat plaintiff used tbe lands for pasturing long before tbe road was built, and bad so used tlrern up to tbe time bis cow was killed. Waters v. Moss, 12 Cal. 537; Richmond v. Sacramento Valley R. R. Go., 18 Cal. 353.
    II. Tbe question of negligence was solely for tbe jury. Tbe line of tbe road was not fenced where it passed through the lands used by plaintiff, and it would have been sufficient for plaintiff to prove that the cow strayed upon the track and was killed by defendant’s train. But he went further and showed that he employed a herdsman to take care of his cattle and that the cow on the track could have been seen by the engineer forty rods ahead. Redfield on Railways, 474, 476; 18 Cal. 355.
    III. The land on both sides of defendant’s track is public land, and all the right that defendant can claim to it is the right of way over it. Under the statute of 186A-5, 442, defendant was bound to fence the road, and is responsible to plaintiff for killing his cow. Gowen v. N. Y. & Erie B. B. Go., 3 Kirwan, 42; Sheppard v. The Buffalo, N. Y, & Erie B. B. Go., 35 N. V. 644.
    
      W. S. Wood, for R espondent.
    I. The defendant is not liable in this action under the evidence introduced unless that liability is created by statute. Defendant was in the lawful possession, as owner of its road and road-bed, and the cow was run over and killed while she was trespassing upon the defendant’s property. Sherman and Redfield on Negligence, Secs. 457, 491; Clarhv. Syracuse and Utica B. B. Go., 11 Barbour, S. C. 116; Illinois Central B. B. Go. v. Beedy, 17 111. 580; The GJvicago and Miss. B. B. Go. v. Patchin, 16 111. 198; Woolson v. Northern B. B. Go., 19 NewHamp. 267; Ghajoiniv. The Sullivan Bcdlroad, 39 New Hamp. 53; Terry v. New York Gent/ral Bcdlroad Go., 22 Barb. 586; Élarsh v. New York and Erie Bailroad Go., 14 Barb. 371; L. and F. B. B. Go. v. Milto-n, 14 B. Monroe, 80.
    II. The bare fact that the cow was killed by being run into by the defendant’s locomotive, without any further proof, is not sufficient to establish a prima facie case of negligence. Such a position is not warranted by the authorities, and is not founded in correct reasoning. Scott v. Wilmingtcm and Baleigh B. B. Go.', 4 Jones, (Law) 432; 1 Redfield on Railways, 465; Indiana and Cincin Bcdlway v. Odldwell, 9 Indiana, 397; G. O. B. B. Go. v. Lawrence, 13 Ohio State, 90; 
      Lou. and Frank. B. B. Co. v. Builard, 3 Metcalf, (Ky.) 184; Chicago and Miss. B. B. Co. v. Batchin, 16 Illinois, 198; Vandegrift v. Becliclcer, 2 Zabriskie, 185.
    HE. Tbe statute of this State does not authorize a recovery under tbe proof in tbis cause by plaintiff. It undertakes to provide tbe persons to whom and tbe cases in wbicb a railroad company shall pay for cattle killed on its road when it fails to fence, but plaintiff 'entirely failed to show that be was a person for whose protection tbe law was enacted, or that bis case falls within tbe rule therein prescribed. Tbe plaintiff is compelled to show himself to be an adjoining proprietor before be can claim that be is entitled to tbe protection of tbe act. He must establish that be is tbe owner of tbe close through wbicb tbe road passes and from wbicb tbe cow strayed.
    Tbe provisions of a statute requiring a railroad company to maintain fences on tbe sides of its track is a provision designed for tbe protection of adjoining owners. Enright v. S. F. andS. J. B. B. Co., 33 Cal. 236; Chapina. TheSidlivan Bailroad, 39 New Hamp. 60; Cornwall v. The Sullivan Bail-road, 21 New Hamp. 263; Woolson v. The Northern Bailroad, 19 New Hamp. 267; Per/ce v. The Eastern Bailroad, 29 Maine, 307.
    IV. Plaintiff did not undertake to show any of tbe circumstances attending tbe accident, or why tbe cow was upon tbe track, or bow she came to be there, or why bis herder made no effort to get her away from tbe danger when be saw it approaching. Tbe silence in tbe testimony upon all these questions argues strongly against bis right to compel tbe defendant to reimburse him for a loss which, from all that is shown, seems to have resulted from bis own fault and negligence.
   By the Court,

Lewis, C. J.:

Tbe question as to tbe extent of tbe liability of railroad companies for injuries to domestic animals has frequently been before tbe courts, and has been considered in nearly every conceivable phase, so that at tbe present time tbe law upon tbis particular bead is pretty thoroughly settled.

Tbe leading principle pervading all tbe cases is that tbe liability of such companies is founded only upon negligence or omission of duty, and tbis principle' is fortified by tbe cases of analagous character from tbe earliest history of tbe law. Thus it bas always been held that if in tbe prosecution of a lawful act, an accident, which is purely so, arises, no action can be maintained for an injury resulting therefrom. Davis v. Saunders, 2 Chitty Rep. 639; Goodman v. Taylors, 5 Car. & P. 410. And in railroad cases, upon tbe same principle, it is always held necessary to show negligence to sustain an action for damages. Gerres v. Portsmouth and Roanoke R. R. Co., 2 Iredell 324; Lane v. Crombie, 12 Pick. 177; Harlow v. Humison, 6 Cow. 189; Vandegrift v. Redicker, 2 Zabriskie, 185; Louisville and Frankfort R. R. Company v. Ballard, 2 Met. (Ky.) 177; Chicago and Miss. R. R. v. Patchin, 16 Ill. 198; 18 Ill. 260; 22 Barb. 574. Upon what other principle of law can a person who occasions damage while in tbe pursuit of a lawful business upon bis own premises be held liable ? Surely an individual so situated, who exercises proper caution and is not chargeable with negligence, can not be held for an accidental injury and damage resulting therefrom. There being no negligence in any sense of tbe word on tbe part of tbe person causing tbe injury, it would be a case of damage without a wrong, and consequently affording no cause of action. In all such cases, therefore, tbe negligence or want of that due care and caution which tbe situation demands is tbe very gravamen of tbe action, without which none can be maintained.

In tbis case it does not appear to be questioned but tbe defendant’s business is entirely lawful, nor that it bas tbe right to tbe possession of tbe land taken for tbe purposes of its road; and that possession, by all tbe authorities, is tbe right to its exclusive enjoyment, and to exclude all persons and beasts therefrom at any and all times. Jackson v. The Rutland and Burlington R. R. 25 Ver. 150. It follows, then, as tlie defendant was engaged in a lawful act upon premises to which it had the exclusive right to the possession, it was incumbent on the plaintiff to show some degree of negligence at least to entitle him to maintain an action against it. This he entirely failed to do. Indeed there appears to have been ho effort made in that direction, plaintiff relying entirely on these two propositions: 1st, that the mere killing of the animal by the locomotive engine of the defendant while in motion, was itself evidence of a want of due care; and 2d, that the defendant being required to fence its road at the point where the plaintiff’s cow got on the track but not having done so, is in that respect chargeable with negligence and liable.

But it is not the law that the mere killing of a domestic animal by a railroad train is evidence of negligence. This question has frequently been before the courts and invariably ruled against the plaintiff, except where the general rule of law is abrogated by positive statute. The fact of killing an animal of value by the company’s engines, says Redfield, is not prima facie evidence of negligence. 1 Redfield on Railways, 465. And it is so ruled in the following cases: Scott v. The Wilmington and Raleigh R. R. Co. 4 Jones, (Law) 432; Indianapolis and Cincin. R. R. v. Means, 14 Ind. 30; Ill. Cent. R. R. v. Reedy, 17 Ill. 580; Chicago and Miss. R. R. v. Patchin, 16 Ill. 198. See also Pierce’s American Railway Law, 357.

Was it incumbent ®n the defendant to fence its road? At common law the proprietor of land was not required to fence; but every man was bound to keep his cattle on his own premises, and he might do this in any manner he chose. And this rule applies equally to railroads as to individuals. Does the statute then impose this obligation ? It does not, as we understand it, require railroad companies to fence their road when it runs through public land. Its language is rather vague, but no sensible construction can be placed upon it except that it must fence its road where it runs through or alongside of land owned by individuals. That portion of the section bearing upon this question reads thus: “It shall be the duty of the railroad company to make and maintain a good and sufficient fence on either or both sides of its property, and in case any company do not make and maintain such fence, if their engine or cars shall kill, maim, or destroy any cattle or other 'domestic animals when they stray upon their Une of road where it passes though or alongside of the property of the owners thereof, they shall pay to the owner or owners of such cattle or other domestic animals, a fair market-price for the same, unless the owner or owners of the animal or animals so killed, maimed, or destroyed shall be negligent or at fault.” Statutes of 1864-, 5, page 442. Now it will be seen, that, although railroad companies are in general terms required to fence their road, it does not appear to be made their duty absolutely to fence both sides, but “ either or both.” What is to be understood by this ? The requirement would be literally complied with if the company simply fenced one side of its road, for the requirement is in the disjunctive, to fence one side or both. It certainly could not have been the intention of the legislature to leave so important a matter optional with railroad companies, to fence; and yet it can not be denied that by the strict interpretation of the language they are only required absolutely to fence one side; so, if a fence were made and maintained along the entire length of one side of the road, nothing more could be required under this section.

It is quite evident that this was not what was intended to be required, for it would simply result in an absurdity. What then was the intention of the legislature ? Doubtless simply to require the companies to fence their road where it may run through or alongside of the land of private individuals; that is, on either or both sides as occasion may demand. This view is strengthened by the fact that the statute only makes the company liable for the injury to, or killing of stock ‘' when they stray upon their line of road, where it passes through or alongside of the property of the owners of such cattle. ” So, too, it had frequently been held that fencing, even when required by statute, is only for the protection of adjoining .owners, and that no other person can complain of the want of it. Jackson v. Bur. and Rut. R. R., 25 Vt. 150. Now this statute may have been adopted in reference to those decisions, and hence perhaps the requirement of a fence on “either or both sides” where there were owners to be protected. At any rate this ease does not come within the statute, for it in terms only renders the company liable where the animals killed or injured stray upon the road directly from the land belonging to their owners. It would appear from this language that if they stray upon the track, from public land, or from land not belonging to the owner of the animals, it was not intended by the statute to render the road liable. This construction also is in conformity with decisions rendered before the adoption of the statute. . Thus it is held in Jackson v. Burlington and Rutland R. R. supra, that a railroad company may be held liable for injury to cattle where they get upon the track directly from the land of the owner, but if they first stray upon the land of others and from there get on the track and are killed or injured, no liability is imposed on the company. And so it has frequently been held.

Under this statute, undoubtedly if cattle stray upon the railroad directly from the owner’s land, by reason of the failure on the part of the company to fence the road at that point, it would be held liable by the simple showing of the facts that the company had neglected to fence the road along the land of the person owning the animals, that they strayed directly from his land on the road and were there killed, without showing any further negligence; for the failure to build the fence where required together with the other facts above mentioned would bring the case directly within the statute and without further showing create a cause of action. But where the case is not brought within the statute,- negligence is the only ground of action, as we have already shown.

This case is not brought within the statute; for it is not shown that the company failed to fence at a point where it should have done so, nor that the animal killed strayed from land belonging to its owner on to the railroad, but that it came from public land unoccupied and unclaimed upon the track; and as no negligence was shown, - no cause of action was established. Nor could it help the plaintiff in this case if it were admitted that, he had the right to allow his cattle to depasture on the public land, or even on the railroad track itself; for in that case both the company and the plaintiff’s cattle would be rightfully on the track, and even in such case negligence or a want of due care must be shown to authorize a recovery for injury such as that here claimed.

Therefore the non-suit was properly granted.

Judgment affirmed.

Garber, J., did not participate in the foregoing decision.  