Davis v. Baltimore & Ohio Rd ( 1938 )

OPINION

By THE COURT

An examination of this record discloses that there is abundant evidence that the appellant failed to perform the statutory duty to maintain a fence sufficient to turn stock imposed u-.on it by §8913 GC.

While by §8858, GC, the appellant was obliged to construct a crossing for the convenience of the abutting landowner, that did not relieve it from the duty of constructing and maintaining a fence sufficient to turn stock. It imposed upon it the additional duty, of providing some means by gate or otherwise, whereby the farmer could pass through the fence and adequately close the passageway behind him. This it failed to do. The witness testified that “When they built the new fence they took the old boards and made the gate and when that rotted away, I put a wire across the opening.”

There is no evidence in the record that an adequate gate had been furnished or maintained at this crossing where appellee’s horse got onto the appellant’s right of way. This laiiure to comply with its statutory duty continued to the time of the incident, and was the proximate cause of the appellee’s damage.

This being the situation shown by the record, any technical error that might appear would not be prejudicial.

For these reasons, the judgment is affirmed.

ROSS, PJ. HAMILTON and MATTHEWS, JJ, concur