
    The Burlington & Missouri River Railroad, plaintiff in error, v Frank Franzen, defendant in error.
    Railroad: fences. A railroad company which fails to fence its track at a place where by statute it is required to fence, is liable for stock killed or injured on its track by its engines or cars, and the mere negligence of the owner of the stock is no defense.
    Error to the district court for Cass county. Tried below before Pound, J.
    
      Marquett, Deweese & Hall, for plaintiff in error.
    
      Chapman <£• Beeson, for defendant in error.
   Maxwell, J.

This is an action brought by the defendant in error to recover the value of a cow killed by the ears of the plaintiff at a point on its railroad where it was required by statute to fence its track but had failed to do so. The railroad company in its answer admits that the cow was killed by an engine on its railroad track, which .at the time was operated by the company’s agents, and that notice and affidavit of the killing were duly served on the company’s agents, etc. For further answer it is alleged “that said killing occurred by reason of the fault and negligence of the plaintiff, and without any fault or negligence on the part of the defendant.” There is no reply, and it is strongly urged on behalf of the plaintiff in error that the allegation of negligence is thereby admitted, and thereby the company excused. On the trial of the cause in the court below a verdict was returned in favor of the defendant in error, upon which judgment was rendered.

It appears from the testimony that the animal in question was killed a short distance east of Cedar Creek village, in Cass county; that at. the place where the accident occurred the track runs near the Platte river, there being a shallow channel of the river between the south bank and an island on which the defendant pastured his cattle. It also appears that it was the duty of the company to fence its track at this point, and that it had constructed a fence on the south side but none on the north. There is no claim that the defendant’s cattle were willfully on tire track, and the proof fails to show negligence. But even if negligence was admitted it would afford no excuse where stock is killed by the cars at a point on a railroad where it is its duty to fence the track but it fails to do so. The question here presented was before this court in the case of The B. & M. R. R. Co. v. Brinkman, 14 Neb., 70, and it was there held that the liability of the railroad company exists by reason of the statute, without regard to the question of negligence. The statute declares in substance that every railroad corporation whose lines of road or any part thereof is open to use shall, within six months thereafter, erect and maintain fences on the sides of said railroad suitably and amply sufficient to prevent cattle, horses, sheep, and hogs from getting on said railroad, except at the crossings of public roads and highways, and within the limits of towns, cities, and villages, etc.; and declares the peralty for “failing to fence on both sides thereQf against all live stock running at large at all points,” that the company “shall be absolutely liable to the owner of any live stcck injured, killed, or destroyed by their agents, employees, or engineers,” etc. Comp. Stat., ch. 72, art. I. The statute is plain and unambiguous, and leaves no room for construction. A railroad company failing to fence its track at a point where it is required to fence is liable for stock killed or injured on its track by its engines or cars, and the mere negligence of the owner of the stock is no defense.

The judgment of the court below is clearly right, and is affirmed.

Judgment affirmed.

The other judges concur.  