
    No. 11,163.
    The Louisville, New Albany and Chicago Railway Company v. Hurst.
    
      Railroad. — Killing Stock. — Fences.—Highway.—A railroad company is not required to fence its road where it would obstruct a public highway, and the want of fencing at such place does not make it liable for stock killed or injured.
    From the Warren Circuit Court.
    
      W. F. Stilwell, for appellant.
    
      J. A. Stein and G. W. Collins, for appellee.
   Hammond, J.

Action by the appellee against the appellant to recover the value of a colt killed by a locomotive at a place where the railroad was alleged not to have been securely fenced. The action, commenced in the superior court of Tippecanoe county, was taken by change of venue to the court below. There was a trial by the court with a finding and judgment for the appellee.

The record properly presents the question whether the evidence was sufficient’to sustain the finding. The evidence shows that the animal entered upon the track and was killed either at a point on the railroad at the crossing of a public highway, or at a place on the railroad where a public highway ran along the side of, and so near to it, that the railroad .at such place could not be fenced without obstructing the highway.

It is well settled that a railroad company is not required to fence its road where a public highway would be obstructed by the fence; and where it is excused from fencing its road, the want of such fencing does not make it liable for stock killed or injured by its locomotives, cars, or other carriages. Louisville, etc., R. W. Co. v. Francis, 58 Ind. 389; Wabash R. W. Co. v. Forshee, 77 Ind. 158.

The appellant’s motion for a new trial should have been sustained. Judgment reversed with costs, with instruction to the court below to sustain the appellant’s motion for a new trial.

Filed April 4,1884.

Petition for a rehearing overruled Nov. 14, 1884.  