upon either party; and the company is not responsible for the destruction of cattle straying upon its road, unless it is shown that such destruction was caused by the wanton and reckless negligence of its agents. Louisville, etc., R. R. Co. v. Milton, 14 B. Monr. (Ky.) 61. So, if the owner of an animal knowingly permits it to stray upon the track of a railroad at a point where it cannot be legally fenced, and it is killed, he cannot recover unless the animal was killed by the gross negligence or willfulness of the railroad company. Jeffersonville, etc., R. R. Co. v. Huber, 42 Ind. 173; Jeffersonville, etc., R. R. Co. v. Underhill, 48 id. 389. Thus, at stations and sidings where freights or passengers are received or discharged, railroad companies are not required to fence their tracks; nor are they liable to pay for cattle that may wander upon the track at such places, and be killed without negligence on the part of the company. Indianapolis, etc., R. R. Co. v: Christy, 43 id. 143. See Toledo, etc., R. R. Co. v. Owen, 43 id. 405; Galena, etc., R. R. Co. v. Griffin, 31 Ill. 303; Bowman v. Troy, etc., R. R. Co., 37 Barb. 516. And whether or not contributory negligence would be a defense to an action for an injury arising from the failure of a railroad company to fence as required by statute (see Shepard v. Buffalo, etc., R. R. Co., 35 N. Y. [8 Tiff.] 641; Peoria, etc., R. R. Co. v. Champ, 75 Ill. 577), it is well settled that such negligence may defeat an action for an injury arising from the failure of the company to maintain in repair such a fence, once built. Jones v. Sheboygan, etc., R. R. Co., 42 Wis. 306; Lawrence v. Milwaukee, etc., R. R. Co., id. 322; Chicago, etc., R. R. Co. v. Seirer, 60 Ill. 295.

In Maryland and in Georgia non-fencing is only prima facie evidence of negligence (Keech v. Baltimore, etc., R. R. Co., 17 Md. 32; Macon, etc., R. R. Co. v. Davis, 13 Ga. 68); hence, in those States, the owner of cattle cannot recover for injuries to them, if the railroad company disproves negligence on its own part or proves contributory negligence on the owner's part.

In an action against a railroad company, based on its common-law liability for negligently killing or injuring animals, the burden of proof is upon the plaintiff to show that the injury occurred by reason of a want of ordinary care upon the part of the defendant or its employees. Proof of the injury alone will not entitle him to recover. Mobile, etc., R. R. Co. v. Hudson, 50 Miss. 572; Schnier v. Chicago, etc., R. R. Co., 40 Iowa, 337. See Roof v. Railroad Co., 4 S. C. 61; Mobile, etc., R. R. Co. v. Williams, 53 Ala. 595.

In the absence of any statute limiting the rate of speed of railway trains, no conceivable rate is evidence of negligence per se. Artz v. C., R. I. & P. R. R. Co., 44 Iowa, 284; Maher v. Atlantic, etc., R.

Co., 64 Mo. 267; Sharrod v. London, etc., Railway Co., 4 Exch. 580. And see Zeigler v. Railroad, 5 S. C. 221. But see Massoth v. Delaware, etc., Canal Co., 64 N. Y. (19 Sick.) 524, where it is held that, irrespective of any ordinance or law regulating the speed of railroad trains at crossings, the running at an excessive rate of speed is negligence, and if a collision is caused thereby, the company is liable. Whether the rate of speed is excessive or dangerous in the locality is held to be a question of fact for the jury. Whether the violation of a municipal ordinance regulating the rate of speed is, as matter of law, negligence, is, in the same case, questioned. See Jetter v. New York, etc., R. R. Co., 2 Keyes (N. Y.), 154; S. C., 2 Abb. Ct. App. 458. But in Maryland it is held that if a railroad company does not conform to city ordinances, providing certain safeguards in the use of its engines, it is not in the lawful pursuit of its business, and is responsible for any injury which it may occasion if the party injured be not in fault. Baltimore, etc., R. R. Co. v. State, 29 Md. 252.

At a railroad crossing, neither the travelers upon the highway nor the railroad company have an exclusive right of passage, but their rights are concurrent. North Penn. R. R. Co. v. Heileman, 49 Penn. St. 60; Pennsylvania Co. v. Krick, 47 Ind. 368. The law imposes upon the company the duty of making a signal on approaching a crossing (Indianapolis, etc., R. R. Co. v. Stables, 62 Ill. 313); but while the company is held to this degree of care, it is equally the duty of a person crossing the track of a railroad to be on his guard, and to see that he is not incurring danger to himself and to his property. Chicago, etc., R. R. Co. v. Hatch, 79 Ill. 137; Penn. R. R. Co. v. Beale, 73 Penn. St. 504; 13 Am. Rep. 753; Leavenworth, etc., R. R. Co. v. Rice, 10 Kan. 426; Stubley. v. London, etc., Railway Co., L. R., 1 Exch. 13; S. C., 4 Hurlst. & N. 83. And he is not justified in omitting to look and listen for approaching trains, because the company omit to ring the bell or sound the whistle. Havens v. Erie Railway Co., 41 N. Y. (2 Hand) 296; Gorton v. Erie Railway Co., 45 N. Y. (6 Hand) 660; Toledo, etc., Railway Co. v. Shuckman, 50 Ind. 42; Penn. R. R. Co. v. Ackerman, 74 Penn. St. 265. So, the law does not make it the duty of a railroad company to place a flagman or watchman at highway or street crossings to warn travelers. Beisiegel's Case, 40 N. Y. (1 Hand) 9; Brown v. Milwaukee, etc., Railway Co., 22 Minn. 165; Stubley v. London, etc., Railway Co., L. R., 1 Exch. 13. And where a railroad company has been accustomed to keep a flagman at a crossing, the fact of his absence or withdrawal does not excuse a traveler from the charge of negligence in omitting the use of his senses. has no right to interpret the absence as an assurance of safety.

Не

Me.·

Grath v. New York Central, etc., R. R. Co., 59 N. Y. (14 Sick.) 468; S. C., 17 Am. Rep. 359. But see id. 363, n.

The neglect to sound the whistle or to ring the bell of a locomotive engine is not, of itself, such negligence as will justify a recovery for damage to property injured upon the track. Flattes v. Chicago, etc., R. R. Co., 35 Iowa, 220. The injury must be shown to be the result of the omission, or a neglect of the duty imposed by statute, and this is to be determined by the jury. Indianapolis, etc., R. R. Co. v. Blackman, 63 Ill. 117; Howenstein v. Pacific R. R. Co., 55 Mo. 33; Memphis R. R. Co. v. Bibb, 37 Ala. 699. See Wakefield v. Conn., etc., R. R. Co., 37 Vt. 330; Augusta, etc., R. R. Co. v. McElmurry, 24 Ga. 75; Pittsburg, etc., R. R. Co. v. Karns, 13 Ind. 87.

A railroad company is not liable for an injury to an animal, where the escape of steam, or other necessary noise made by an engine or a train causes the animal to take fright, and the injury is the result of the fright. Burton v. Philadelphia, etc., R. R. Co., 4 Harr. (Del.) 252; Ohio, etc., Railway Co. v. Cole, 41 Ind. 331; Atchinson, etc., R R. Co. v. Loree, 4 Neb. 446. But if the fright be produced by noise unnecessarily made, the company is liable for all the consequences. Manchester, etc., Railway Co. v. Fullarton, 14 C. B. (N. S.) 54; Hill v. Portland, etc., R. R. Co., 55 Me. 438; Pennsylvania R. R. Co. v. Barnett, 59 Penn. St. 259; Culp v. A. & N. R. R. Co., 17 Kan. 475.

The rule, that any person who goes upon a railroad track, incautiously, or without using all reasonable precaution to escape injury, assumes the hazard, and if injury ensues, is without remedy, has no application to a case where, by the arrangement of the company, it is made necessary for passengers to cross the track in passing to and from its depot to its trains. Klein v. Jewett, 26 N. J. Eq. 474. And where a railroad company has created extra danger, it is bound to use extra precautions, and the precautions to be adopted must be adequate to insure the safety of every passenger who exercises ordinary care. Id.

It has been held in Tennessee, that, if the trains of one railroad company, running on the road of another company, be under the exclusive control of the servants of the latter, the latter is liable for all damages occurring through negligence. But if the servants of both companies jointly control the trains, both companies are liable. Nashville, etc., R. R. Co. v. Carroll, 6 Heisk. (Tenn.) 347. And see Mills v. Orange, etc., R. R. Co., 1 McArthur, 285. On the other hand, it has been held that, where a railroad company permits other companies or persons to exercise the franchise of running cars drawn by steam over its road, the company owning the road, and to which the law has inVOL. IV.-87

trusted the franchise, is liable for any injury done through negligence, the same as though the company owning the road were itself running the cars. Macon, etc., R. R. Co. v. Mayes, 49 Ga. 355; S. C., 15 Am. Rep. 678. So, the liability of a corporation owning a railroad, for injuries caused by negligence, is held not to be affected by the fact that the corporation have leased the road, and it is operated, at the time of an injury so caused, by the lessees; nor even by the fact that it is in charge of, and run by a receiver, unless, perhaps, when his possession and control are exclusive. Railroad Company v. Brown, 17 Wall. 445. See Klein v. Jewett, 26 N. J. Eq. 474. It is held in New York, that a railroad company which has parted with the possession and control of its road under a lease thereof to another company, containing a covenant that the lessee shall keep up the fences, is not liable to one traveling upon a highway, for damages resulting from an omission of the lessee to repair a fence which was in good order at the time of the lease and surrender of possession. Ditchett v. Spuyten Duyvil, etc., R. R. Co., 67 N. Y. (22 Sick.) 425. But see Mahoney v. Atlantic, etc., R. R. Co., 63 Me. 68.

By statute, in some of the States, the lessees of railroads are made liable, equally with the corporations owning the tracks, for the want of fences. See Clement v. Canfield, 28 Vt. 302; Wyman v. Penobscot, etc., R. R. Co., 46 Me. 162; McCall v. Chamberlain, 13 Wis. 637; Tracy v. Troy, etc., R. R. Co., 55 Barb. 529; S. C. affirmed, 38 N. Y. (11 Tiff.) 433. In Iowa, where two railroad companies operate trains on the same road, one being the owner and the other a lessee, each is liable only for stock injured or killed by its trains, by reason of the road being unfenced, and not for that injured or killed by the trains of the other. Stephens v. Davenport, etc., R. R. Co., 36 Iowa, 327. In Illinois, both companies are held responsible. Toledo, etc., R. R. Co. v. Rumbold, 40 Ill. 143. While, under the Indiana statute, the company owning a railroad is liable for stock killed by a train on the road, without reference to the company or persons who may have been running the locomotive or cars that caused the injury, and such company may be sued alone. Ft. Wayne, etc., R. R. Co. v. Hinebaugh, 43 Ind. 354.

In Illinois, it is held to be negligence in a railway company to permit or suffer weeds or any thing else to grow upon its right of way to such a height as to materially obstruct the view of a highway crossing; and if injury results to stock at such crossing, that might have been avoided but for such obstruction, the company will be liable. Indianapolis, etc., R. R. Co. v. Smith, 73 Ill. 112.

§ 18. Real property. It is a general principle of the common law, that the owner of real property is bound so to control its use as not to produce injury to others. See Earle v. Hall, 2 Metc. (Mass.) 353. He is not, however, to be restrained in the prudent and reasonable use of his land, and he is not chargeable with the negligent acts of another in doing work thereon, unless he stands in the character of employer to the one guilty of the negligence, or unless the work as authorized by him would necessarily produce the injuries complained of, or they are occasioned by the omission of some duty incumbent upon him. There is held to be no distinction, in this respect, between an owner of real and of personal property, and the former is held to no stricter liability for the negligent use and management of his real estate, or of negligent acts upon it by others, than is the latter as to a similar use of his property. Reedie v. London, etc., Railway Co., 4 Exch. 244; Butler v. Hunter, 7 Hurlst. & N. 826; Robinson v. Webb, 11 Bush (Ky.), 464; McCafferty v. Spuyten Duyvil, etc., R. R. Co., 61 N. Y. (16 Sick.) 178; S. C., 48 How. 44; 19 Am. Rep. 267. Thus, it is held in the case last cited, that a railroad corporation which has let by contract the entire work of constructing its road, and has no control over those employed in the work, is not liable for injuries to a third person, occasioned by negligent acts in doing the work of those thus employed, such as blasting in a manner to throw rocks upon the lands of another. And see King v. Livermore, 9 Hun (N. Y.), 301.

The owner may use his land in such reasonable way as his judgment shall dictate, either by making excavations or superstructures thereon, subject, however, to the implied condition that he shall not thereby interfere with his neighbor in the enjoyment of the same right in respect to his adjacent land. Each is entitled to have his soil in its natural state sustained, when necessary, by the lateral support of the adjacent soil of the other, but neither has the right to burden the land of the other with the support of any additional weight, as that would be to make the land of the one servient to that of the other. Stevenson v. Wallace, 27 Gratt. (Va.) 77; City of Quincy v. Jones, 76 Ill. 231; S. C., 20 Am. Rep. 243. The owner of a building standing upon the line or boundary of his land may, however, acquire a right to the lateral support of the same from the soil of the adjacent owner by contract or by prescription, and this right will constitute a burden upon the adjacent property. Id. And see Vol. 2, tit. Easements. But see Mitchell v. Mayor of Rome, 49 Ga. 19; S. C., 15 Am. Rep. 669. In general, however, if injury is sustained to a building in consequence of the withdrawal of the lateral support of the neighboring soil of another, where it has been withdrawn with reasonable skill and care to avoid