The only negligence alleged in the declaration is that of the defendant in not maintaining a fence along the line and sides of its road-bed and track, as required by law.

It alleges that the defendant carelessly, negligently, and wrongfully permitted a certain portion of its fence to fall down, so that a gap or opening existed in its fence, which it did not repair, and had not repaired for some time prior thereto.

From the plaintiff’s testimony it appears that one Dyke Trumbull had a contract with defendant to deliver a quantity of railroad ties upon the right of way of defendant, and! had taken down a portion of defendant’s fence at the point complained of, through which to draw the ties, contracted to be delivered.

In the month of February, 1884, plaintiff agreed with Trumbull to haul.out and place on the defendant’s right of way railroad ties towards filling this contract. The plaintiff was the owner of a horse that was afraid of the cars, and sent his son, who was eighteen 'years of age, to haul out ties with this horse. There was snow upon the ground, and there was no track through this snow, from the swamp where the ties were, to and through this gap or place in the fence, until one was made by the plaintiff’s son in hauling out one load of ties. He had hauled one load, and went back into the swamp for another, where he tied the horse to a hemlock knot in a log about seven or eight rods from the railroad, and then went’off into the woods to break a road. He was gone about three-quarters of an hour, and while away heard a train pass. When he came back, about fifteen minutes later, he found *360the,horse gone. The horse had broken loose, and ran, following the track out through the gap in the fence, and upon the track, where it was hit by the engine of the passing train and killed. No- negligence is alleged in the management or running of the train.

At the conclusion of plaintiff’s testimony defendant’s attorney requested'the court to take the case from' the jury and direct a verdict for the defendant, which the court refused to do, but left it for the jury to say whether" defendant was guilty of negligence in not keeping the fence in good repair.

The facts, as proven by the plaintiff, do not show any negligence on the part of the defendant for which it should be held liable. The plaintiff was using the gap or passage-way in the fence for his own purpose and convenience; and, while so using it, the defendant was not in default for not putting up the fence between each load hauled. It was not its duty .to station a man there to take up and put down the fence to enable plaintiff to pass in and out of defendant’s right of way ; and, as between the plaintiff and defendant, it owed to plaintiff no such duty. And under the facts of this case it is immaterial whether the gap had existed for any length of time previous to its use by the plaintiff.

The judgment must be reversed, and a new trial granted.