
    H. & T. C. R’y Co. v. A. L. Simpson.
    (No. 3388.)
    Error from Dallas County.
   Opinion by

Willson, J.

§ 670. Railroad's liability for stock killed, etc.; inconvenience no excuse for not fencing road; case stated.. Appellee recovered judgment against appellant for $100 damages for a cow killed by appellant’s engine. The cow was killed in the town of Eichardson near the railroad depot, at a point where a switch track was located. The road was not fenced. It was proved that to have the road fenced at this place would cause much inconvenience to appellant in the operation of its trains, loading and unloading its cars, etc. Such fencing, however, would not have obstructed any street or public highway. Held, the evidence does not show a valid excuse for failing to fence the road. Inconvenience to appellant in the conduct of its business cannot be regarded as sufficient excuse; if so, it would virtually destroy the efficacy of the statute, which, in effect, makes it negligence per se to kill or injure stock when the railroad track is not fenced. [R. S. art. 4245; W. & W. Con. Rep. §§ 149, 263, 315, 844, 1300.] A failure to fence where it is not unlawful to do so, is, of itself, such negligence as will make the company liable. When the injury is shown, it devolves upon the company, in order to avoid liability therefor, to show that it has .built and maintained, on both sides of its road, wherever it may lawfully do so, a fence sufficient to turn stock.” [Ante, § 373.]

May 6, 1885.

Affirmed.  