
    FT. WORTH & R. G. RY. CO. v. WILHITE.
    (No. 953.)
    (Court of Civil Appeals of Texas. El Paso.
    March 27, 1919.)
    1. Railkoads <S=268 — Operation op Road by Receivers — Plea ding.
    In an action against a railroad for loss of animals killed by trains operated by receivers, facts necessary to fix liability upon railroad, receivers having been discharged, must be pleaded and proved.
    2. Railroads @=411(6) — Animals—Duty to Fence.
    Where Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 7235 et seq., relating to horses and cattle, has not been adopted in a county, a railroad operating an unfenced track therein, unless negligent, is not liable, under article 6603, for hogs killed or injured while running at large in violation of title 124, c. 5, adopted in such county.
    3. Railroads <5=411(1) — Fences.
    There is no law compelling railroads to fence a right of way.
    Appeal from Comanche County Court; J. H. McMillan, Judge.
    Action by S. T. Wilhite against the Ft. Worth & Rio Grande Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and rendered.
    Jerome P. Kearby, of Comanche, for appellant.
    Callaway & Callaway, of Comanche, for ap-pellee.
   Statement of Case.

HIGGINS, J.

This suit was filed June 16, 1917, by Wilhite, against appellant, to recover the value of two hogs killed by a train and damages for Injuries to another hog. The facts found by the trial court may be summarized as follows: During 1916 Wilhite lived, on a rented farm six miles east of ■Hasse. Appellant’s line of railway .passed through the farm. In April and May, 1916, two hogs belonging to appellee were killed and one crippled by a train operated upon the line of railway aforesaid, and by reason thereof, appellee was damaged in the sum of $85. The right of way had never been fenced at this point. Appellee’s farm was inclosed by a hogproof fence, but there was no fence to prevent hogs from straying upon the right of way and tracks of appellant. Appellee had turned the hogs loose upon his farm, and, being unattended, they strayed upon appellant’s right of way and tracks. At the time mentioned, and for many years previous thereto, there was in force and effect in Comanche county what is commonly known as the “Hog Law,” whereby, under the provisions of chapter 5, tit. 124, Revised Statutes, hog, sheep, and goats were prohibited from running at large. There was no negligence on the part of the parties operating the train that killed and crippled the hogs. Under the orders of the District Court of the United States in the Northern District of Texas, receivers were appointed for appellant, and all of its properties were operated by said court and its receivers from July 5, 1913, to November 3,1917, and such receivers had charge of all of the properties of appellant during the time mentioned and managed, controlled, and operated this line of railroad. The court found that appellant was guilty of actionable negligence in failing to fence its right of way so as to exclude hogs, and that by reason thereof it was liable for the damages. sustained by appellee and rendered judgment accordingly.

Opinion.

1. There are no facts pleaded or found by the trial court which would authorize a judgment against appellant for damages on account of animals killed or injured by trains operated by the receivers of its properties, appointed by the federal court. The record discloses that the two hogs were killed and the third injured by a train operated by such receivers. There is no occasion to discuss this question, as it is well settled that the facts necessary to fix liability upon appellant must be pleaded and proven. Railway Co. v. McFadden, 89 Tex. 138, 33 S. W. 853; Lumber Co. v. Cunningham, 154 S. W. 288; Hovey v. Weaver, 175 S. W. 1089; Railway Co. v. Daniel, 195 S. W. 625; s. c., 186 S. W. 383; Railway Co. v. Ballou, 174 S. W. 337.

2. Prior to the amendment of article 6603, R. S., by Acts 1905, p. 226, c. 117, it was held that railway companies, unless guilty of negligence, were not liable for stock killed or injured in counties and subdivisions thereof where the stock law was in force prohibiting animals from running at large. Railway Co. v. Tolbert, 90 S. W. 508; s. c., 100 Tex. 483, 101 S. W. 206; Railway Co. v. Nussbaum & Scharff, 43 Tex. Civ. App. 410, 94 S. W. 1101; Railway Co. v. Kropp, 91 S. W. 819; Railway Co. v. Scofield, 98 S. W. 436; Railway Co. v. Atlas, etc., 36 Tex. Civ. App. 368, 81 S. W. 792.

For the evident purpose of changing the. rule announced ' in the cited cases, article 6603, R. S., was amended by the act of 1905. This amendment provided that—

“Such liability [i. e., for stock killed or injured] shall also exist in counties and subdivisions of counties which adopt the stock law prohibiting the running at large of horses, mules, jacks, jennets and cattle.”

At the time of this amendment, and now, there are two laws relating to stock running at large. The first is the act prohibiting hogs, sheep, and goats from so doing. This is the act of 1876, with subsequent amendments. It appears in Vernon’s Sayles’ Revised Statutes as chapter 6 of title 124. The second is the act prohibiting horses, mules,jacks, jennets, and cattle from running at large in certain counties. This act was originally passed in 1899 (Gen. Laws 26th Leg. c. 128, p. 220), and with its subsequent amendments appears in Vernon’s Sayles’ Revised Statutes as chapter 6 of title 124. The history of the legislation relating to this last class of animals is traced in Vernon’s 1918 Supplement. See note to article 7235.

It thus appears that, when article 6603, R. S., was amended by the act of 1905, there were two stock laws — one relating to hogs, sheep, and goats; the other to horses, mules, jacks, jennets, and cattle.

The amendment of 1905 imposes an absolute liability upon railroad companies whose road is unfenced in localities which have adopted the law relating to the animals last named. It does not appear that this law has been adopted in' Comanche county. It thus follows, under the rule announced in the Tolbert Case, that appellant is not liable for animals killed or injured while running at large in violation of the law prohibiting hogs, sheep, and goats from so doing. Since the trial court found that there was no negligence on the part of the operators of the train which killed and injured appellee’s hogs, there is no liability. Under the cited authorities liability cannot be predicated, as was done by the trial court, upon the theory that appellant’s failure to fence its right of way constituted actionable negligence.

There is no law compelling railroads to fence their right of way. Under the law in force in Comanche county the animals became trespassers when they entered upon the right of way and tracks of appellant, and, in the absence of negligence on the part of the operators of the train, there is no liability.

Reversed and rendered. 
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