Wilder v. Maine Central Railroad , 1876 Me. LEXIS 64 ( 1876 )

Dickerson, J.

The statute requiring railroad corporations to inclose the land taken for their road with fences, is a police regulation, designed to secure the safety of the public travel and transportation, and is obligatory, as such, upon all railroad corporations whether chartered before or after its passage. State v. Noyes, 47 Maine, 189. Ind., &c., Railway v. Townsend, 10 Ind., 38. 1 Red. on Railways, 493 and 494. 2 same, 428.

The counsel for the defendants contend that the land of the plaintiff adjoining the defendants’ road, was not “inclosed” or “improved,” and was not, therefore, required to be fenced against by the defendants. We think otherwise. Though the land was used partly as a mill yard, it was also mowed, and occasionally used by animals for grazing. The cases cited by the counsel are distinguishable from this case. It appears from them that a railroad company is relieved from the obligation to fence against adjoining lands, when such fence would be a public nuisance, or prevent access to a mill through whose yard the railroad passes, or at points where its engine house, machine shop, car house, wood house, wood shop and depot are so situated as to render a fence unnecessary. These are exceptional cases and do not include the one under consideration.

It is well settled, upon both principle and authority, that a parol agreement for the removal and discontinuance of a fence on the line of a railroad, between the owner of the land and the railroad company, does not run with the land, and cannot, therefore, bind his grantee. Gilman v. Eur. & N. A. R. R. Co., 60 Maine, 235. St. L. & A. R. R. Co. v. Todd, 36 Ill., 409.

There can be no question, therefore, but the defendants were guilty of negligence in not building a fence upon the line of their road adjoining the plaintiff’s land; and the remaining question, to be determined is, whether the plaintiff is guilty of contributory-negligence in turning his horse out upon his land, knowing that it was not fenced. The owner of land has a right to use it in a natural and ordinary way for the purposes for which it is fit. This right does not depend upon the performance or non-performance of any duty or obligation enjoined by law upon another in respect to his land. He has a right to expect that the requirements of law will be complied with, and to act accordingly ; nor does Ins knowledge that they have not been, affect his right of use one way or the other. If it did, the neglect of another to obey the law might operate to prevent him from the lawful use of his own property. The common law made it the duty of the owner of land to guard against the escape of his cattle therefrom, but the statute devolves this duty upon the railroad company in the case under consideration, and the rights of the parties must be determined in accordance with this change. To hold the land owner to the same care of his cattle, as the common law required, would be to disregard the statute, and render it inoperative. It was for the defendants to use the necessary care to prevent the escape of the plaintiff’s horse on account of their neglect to build the fence. Shear. & Red. on Neg., § 471.

In Rogers v. Newburyport R. R. Co., 1 Allen, p. 17, which was tort for the loss of a colt run over by the defendants’ cars, the court say,-“the plaintiff had a right to place his colt in his pasture to feed, and was under no obligation to the defendants to use any care to prevent escape by reason of their neglect to maintain the fence. It was for them to use the necessary care to prevent such an escape.” Gardner v. Smith, 7 Mich., 410.

In McCoy v. Cal. & Pac. R. R. Co., 40 Cal., 532, the line of the road was not fenced where it passed through the field occupied by the plaintiff, and the live stock of the plaintiff running in this field strayed on to the road and were, killed by the defendants’ train; and the court held that these facts made out a prima facie case against the defendants, and also, that the plaintiff was not guilty of contributory negligence, from the fact that he knew that the road was not fenced, when he turned his cattle into the field. Kellogg v. Ch. & N. W. R. R. Co., 26 Wis., 223.

The presiding justice stated the rule of law correctly when he instructed the jury that the plaintiff had a right to use his land in the ordinary way, and that the mere fact that the railroad adjoining his land, was not fenced, was not proof that he was negligent in turning his horse out there. The question of fact, whether, under all the circumstances of the case, it was negligence in the plaintiff to turn his horse out as he did, was submitted to the jury under appropriate instructions. It was the exclusive province of the jury to determine this question, and they found it in favor of the plaintiff. The jury were aided in their investigation by a plan of the premises, verified and explained by the engineer who drew it. They also saw the witnesses and could judge of their credibility from their appearance on the stand. It is next to impossible for the court in this class of cases to put itself in the situation of the jury so as to be able to say whether or not its decision would have accorded with theirs if it had occupied their place at the trial. Hence the wisdom of the rule that the court will not set aside a verdict as against evidence or the weight of evidence unless it is so manifestly so, as to render it apparent that the jury have mistaken or disregarded the evidence. In reviewing the testimony in this case, we do not find such ground for setting aside the verdict. Motion and exceptions overruled.

Judgment on the verdict.

Appleton, C. J., Walton, Barrows and Yirgin, JJ., concurred.