C. & St. L. Ry. Co. v. Laufman, 78 Ind. 319; Mundhenk v. Central Iowa R. Co. 57 Iowa, 718; S. C. 11 N. W. Rep. 656; S. C. 11 Amer. & Eng. R. Cas. 463. Nor will any private interest or convenience on the part of individuals be sufficient to absolve a railroad company from fencing its railroad in like cases. Indiana Cent. Ry. Co. v. Leamon, 18 Ind. 173; Indianapolis, etc., Ry. Co. v. Thomas, 84 Ind. 194; S. C. 11 Amer. & Eng. R. Cas. 491; Pittsburgh & L. E. R. Co. v. Cunnington, 39 Ohio St. 327; S. C. 13 Amer. & Eng. R. Cas. 529; Peoria, P. & J. R. Co. v. Barton, 80 Ill. 72; McKinley v. Chicago, R. I. & P. R. Co. 47 Iowa, 76; Mackie v. Central Railroad, 54 Iowa, 540; S. C. 6 N. W. Rep. 723.

The cases last cited have reference to the crossings of railroads over private roads. There are numerous cases holding that railroad companies are required to fence their roads in cities, towns, and villages, except where the railroads cross some public street, alley, or other public place, and where it would be improper to fence the roads, notwithstanding any inconvenience to the railroad companies or to others. Union Pac. Ry. Co. v. Dyche, 28 Kan. 200; Crawford v. New York Cent. & H. R. R. Co. 18 Hun, 108; Brace v. New York Cent. R. Co. 27 N. Y. 269; Ells v. Pacific Railroad, 48 Mo. 231; Iba v. Hannibal & St. J. R. Co. 45 Mo. 469; Jeffersonville, M. & I. R. Co. v. Parkhurst, 34 Ind. 501; Toledo, W. & W. Ry. Co. v. Howell, 38 Ind. 447; Indianapolis, P. & C. R. Co. v. Lindley, 75 Ind. 427; Wabash Ry. Co. v. Forshee, 77 Ind. 158; Pittsburgh, C. & St. L. Ry. Co. v. Laufman, 78 Ind. 319; Cleveland & P. R. Co. v. McConnell, 26 Ohio St. 57.

Under the statutes railroads must be "inclosed;" in the language of the statute, they must be "inclosed with a good and lawful fence, to prevent such animals from being on such road." Section 5, c. 94, Laws 1874. Building fences along the sides of the railroad is not alone sufficient. The railroads must be "inclosed," as aforesaid, with fences or other barriers, and whenever for that purpose cattle-guards are necessary at the crossings of public highways or other public places, cattle-guards must be put in. Union Pac. Ry. Co. v. Harris, 28 Kan. 206; Missouri Pac. Ry. Co. v. Manson, 31 Kan. 337; S. C. 2 PAC. REP. 800; Missouri Pac. Ry. Co. v. Morrow, 32 Kan. 217; S. C. 4 PAC. REP. 87; New Albany & S. R. Co. v. Pace, 13 Ind. 411; Pittsburgh, C. & St. L. Ry. Co. v. Eby, 55 Ind. 567; Bradley v. Buffalo, N. Y. & E. R. Co. 34 N. Y. 427; Tracy v. Troy & B. R. Co. 38 N. Y. 433; Peoria, P. & J: R. Co. v. Barton, 80 Ill. 72; Flint & P. M. R. Co. v. Lull, 28 Mich. 511; Cleveland, C., C. & I. R. Co. v. Newbrander, 40 Ohio St. 15; S. C. 11 Amer. & Eng. R. Cas. 480; Mundhenk v. Central Iowa R. Co. 57 Iowa, 718; S. C. 11 N. W. Rep. 656; S. C. 11 Amer. & Eng. R. Cas. 463.

"The fact that a railroad crossing is at or near a depot, and that to construct a cattle-guard there would inconvenience the company, will not excuse them from complying with the positive requirement of the statute requiring such protection to be provided." Tracy v. Troy & B.

R. Co. 38 N. Y. 433; Bradley v. Buffalo, N. Y. & E. R. Co. 34 N. Y. 427. "Where stock is killed on a railroad switch at a point where it is unnecessary to keep the road open in order to transact business, the company will be liable without proof of negligence." Morris v. St. Louis, K. C. & N. Ry. Co. 58 Mo. 78; Comstock v. Des Moines Val. R. Co. 32 Iowa, 376.

Upon all the foregoing propositions valuable notes may be found in the American & English Railroad Cases, especially in 7 Amer. & Eng. R. Cas. 577 et seq.; 11 Amer. & Eng. R. Cas. 496 et seq.; and 13 Amer. & Eng. R. Cas. 533.

In the case of the Pittsburgh, C. & St. L. Ry. Co. v. Laufman, 78 Ind. 320, it is said that "the statutory rule is that railroad companies shall be liable for injuries done by their locomotives or cars to animals at places where the roads might be, but are not, fenced; and it is not the province of the courts to create exceptions to the rule or to interfere with legislative policy." This meets with our approval. But whenever it appears from the general course of legislation that the public have a paramount interest in having particular portions. of the railroads of the state unfenced, we shall hold that the statutes requiring railroads to be fenced has no application to such places, and that the railroad companies are not required to fence their roads at such places. This exception to the general rule requiring railroad companies to fence their roads will apply to all public highways, including streets and alleys in cities, towns, and villages; and, for the purposes of this case, we shall assume that it will also apply to all railroad depots and stations where the public generally do business with the railroad companies; and yet the roads themselves, or, in other words, the railroad tracks, might very well be fenced at the companies' depots and stations. All the railroad tracks might be located on one side of the depots or stations, and the public have access to such depots or stations from the other side,-the depots or stations forming a part of the inclosure. This would prevent stock from getting on the railroad tracks.

*

*

This brings us to the question whether the defendant's railroad should have been fenced where the animal in the present case was killed. The court below, upon the evidence, found that "at Crawford station, in Chase county, Kansas, the defendant owns a strip of land 250 feet wide and 2,400 feet long, which is used as its station grounds. at that point; that the part of this land upon which the animal was killed was not necessary for the use of defendant as part of its station grounds." In the present case the plaintiff's animal passed from the public highway onto this tract or strip of land used for station purposes, and wandered along the strip until it passed upon the company's right of way and upon the railroad track, where it was killed; and neither the railroad track, nor the right of way, nor the strip of land, was inclosed with a fence. A fence, however, extended along one end and a part of the two sides of this strip of land,

but this made the wrong of the railroad company in the present case greater, if it committed any wrong; for, by reason thereof, the animal could not escape from the passing train. Assuming, for the purposes of this case, that lands necessarily used for station grounds need not be fenced, then the question arises, is it necessary for a railroad company to inclose a track not necessary for the use of the railroad company as a part of its station grounds, but in fact so used? Under the circumstances of this case, we think we must answer this question in the affirmative. To say that railroad companies are not required to fence their roads in such cases would be to create an exception to an express statutory requirement, and to create such exception without any good reason therefor. This does not come within the province of the courts. Courts may say that where some other statute, or some paramount duty or obligation, absolves the railroad companies from fencing their roads, they need not do so; but where the statute expressly requires railroad companies to fence their roads, in order to exempt the companies from liability, and no other statute or paramount obligation or duty or any good reason exists to relieve them from so fencing, the courts cannot say that they need not fence. But if, for any reason, they are relieved from fencing their roads at some particular place or places, then they must construct fences or other barrier as near thereto as is reasonably practicable. Cleveland, C., C. & I. R. Co. v. Newbrander, 40 Ohio St. 15; S. C. 11 Amer. & Eng. R. Cas. 480; Morris v. St. Louis, K. C. & N. Ry. Co. 58 Mo. 78; Bradley v. Buffalo, N. Y. & E. R. R. 34 N. Y. 427; Tracy v. Troy & B. R. Co. 38 N. Y. 433; Comstock v. Des Moines Val. R. Co. 32 Iowa, 376. And if, for any reason, a railroad company is relieved from fencing its road at any particular place, it devolves upon the railroad company to show that it so relieved. The burden of proof in all such cases rests upon the railroad company. Union Pac. Ry. Co. v. Dyche, 28 Kan. 200; S. C. 11 Amer. & Eng. R. Cas. 427; Indianapolis, P. & C. R. Co. v. Lindley, 75 Ind. 426; S. C. 11 Amer. & Eng. R. Cas. 495; Rockford, R. I. & St. L. R. Co. v. Lynch, 67 Ill. 149; Flint & P. M. Ry. Co. v. Lull, 28 Mich. 510.

In some states there are express exceptions by statute, as in Illinois, for instance, where railroad companies are not required to fence their roads at the crossings of public roads and highways, or within the limits of cities and incorporated towns and villages; and in some states increased damages by the way of the penalties are imposed for failures to fence, as in Iowa, where the party recovering because of a want of a sufficient fence is entitled to recover double damages. course decisions rendered upon such statutes have no application in this state, where no exceptions are found in the statutes, and no damages or penalties are imposed, except the value of the animal killed, or damages for the animals wounded, and an attorney fee.

Of

The plaintiff in this case permitted his animal to run at large, but by so doing we do not think he was guilty of such contributory negli

gence as will prevent his recovery. Numerous cases might be cited, but we think it is necessary to cite only a few of them, as follows: Flint & P. M. Ry. Co. v. Lull, 28 Mich. 511; Ewing v. Chicago & A. R. Co. 72 Ill. 25; Bellefontaine Ry. Co. v. Reed, 33 Ind. 477; Cressly v. Northern R. Corp. (N. H. Sup. Ct.) 15 Amer. & Eng. R. Cas. 540, and note 544.

The judgment of the court below will be affirmed. (All the justices concurring.)

(33 Kan. 533)

MISSOURI PAC. Ry. Co. v. BRADSHAW.
Filed May 8, 1885.

1. RAILROAD COMPANY-FENCING-INJURY TO HOGS.

An unfenced railway passed through a farm, and a hog belonging to the owner of the farm escaped, without any fault on the part of the owner, and strayed upon the railway within the limits of such farm, and was there killed by the railway company in the operation of its road. Heid, under the railroad stock law of 1874, (Comp. Laws 1879, pp. 784, 785, pars. 4915-4919,) that the railway company is liable.

2. SAME-HOGS RUNNING AT LARGE CONTRARY TO LAW.

And this, notwithstanding the fact that the hog law of 1868, (Comp. Laws 1879, pp. 927, 928, c. 105, art. 7,) prohibiting hogs from running at large, was in force in that township.

3. SAME-STOCK LAW OF 1874.

Under the said railroad stock law of 1874, a railroad company is required to inclose its railroad with a good and lawful fence as against all animals against which such a fence would be a protection.

4. SAME CHARACTER OF THE ANIMAL INJURED.

And where the railroad company claims that the animal in question is or was such that a good and lawful fence would be no protection against it, it devolves upon the railroad company to show the same.

5. SAME-CONTRIBUTORY NEGLIGENCE.

The plaintiff in this case was not guilty of contributory negligence.

Error from Neosho county.

David Kelso and Hutchings & Dennison, for plaintiff in error.
Cogswell & Kenney, for defendant in error.

VALENTINE, J. This was an action brought by Richard Bradshaw before a justice of the peace of Mission township, Neosho county, Kansas, under the railroad stock law of 1874, (Comp. Laws 1879, pp. 784, 785, pars. 4915-4919,) and at common law for negligence, to recover damages for a hog belonging to the plaintiff, alleged to have been killed by the defendant in the operation of its railway.

It appears from the evidence and the findings of the court below that the plaintiff, Bradshaw, owns and occupies a farm through which runs the unfenced railway of the defendant. One of the plaintiff's hogs, a sow, which was confined in a pen on his own premises, accidentally escaped, and, without any negligence on his part, strayed upon the defendant's railway, within the limits of the plaintiff's farm, and was there killed by the railway company in the operation of its road. The general hog law of 1868 and the herd law of 1872 were then in force in that county and in that township. Bradshaw made due demand, and brought suit before a justice of the peace in that

township, seeking to recover under the railroad stock law of 1874, and at common law for negligence. After judgment before the justice of the peace, the case was appealed to the district court, where it was again tried before the court without a jury, and the court made special findings of fact and conclusions of law, and rendered judgment thereon in favor of the plaintiff and against the defendant for $20 damages, $20 attorney fees, and costs of suit; and this judgment the defendant below (plaintiff in error) now seeks to have reversed by petition in error in this court.

The court below found, among other things, that "the defendant was guilty of negligence in the killing of said hog; said negligence consisted in not having its road inclosed with a sufficient fence where its said road ran through plaintiff's farm, and where said hog was killed. It does not appear whether said hog was killed by a freight train or by a passenger train, and it was not shown that defendant company was guilty of any negligence in killing the hog other than not fencing its road as hereinbefore found and stated." Bradshaw's farm was cultivated on both sides of the railway track; but whether it was inclosed with a fence of any kind does not appear either in the pleadings, findings, or the evidence. As a conclusion of law the court found "that the defendant is liable in this action for the value of said hog and the aforesaid attorney fee, and that the plaintiff is entitled to recover the same of and from the defendant." The company excepted to the findings of fact and conclusion of law, and filed its motions to set aside the conclusion of law, and for judgment upon the findings of fact, and for a new trial; all of which motions were overruled by the court, and judgment was rendered against the company for damages and attorney fee as aforesaid.

The plaintiff in error (defendant below) claims that the judgment of the court below should be reversed for the reasons-First, that the findings of fact do not show that the defendant was guilty of any wrong; second, but even if they do, still that the plaintiff was equally at fault with the defendant, and cannot recover. The plaintiff in error claims that a railroad company is not required to construct fences as against hogs; and cites the following cases in support thereof Atchison, T. & S. F. R. Co. v. Yates, 21 Kan. 613; Kansas City, F. S. & G. R. Co. v. McHenry, 24 Kan. 501. The plaintiff in error also claims that the plaintiff below was guilty of wrong-doing in permitting his hog to run at large in violation of article 7, c. 105, of the act relating to stock, (Comp. Laws 1879, pp. 927, 928,) and was therefore guilty of contributory negligence; and cites the following cases in support thereof, to-wit: Central Branch R. Co. v. Lea, 20 Kan. 353; Kansas Pac. Ry. Co. v. Landis, 24 Kan. 406.

Chapter 94 of the Laws of 1874 provides that a railroad company shall be liable to pay the owner the full value of "each, any, [and] every animal killed," and damages for "each and every animal wounded" in the operation of its road, except where its "road is inclosed