Hovorka v. Minneapolis & St. Louis Railway Co.

The evidence shows, without dispute, that the fence between the field where plaintiff’s colts were pasturing and the defendant’s right of way was sufficient and in good condition, including the bars. Where or how the colts got upon the right of way does *222not appear. It does not appear to have been through any defect in. the fence. The fence was built and maintained by Shinick, the owner of the field. Upon the facts, the only proposition on which plaintiff can recover is that, although the colts did not get upon the track through any defect in the fence, the defendant is liable because it did not build and maintain it; for, had it been the fence of the defendant, there could be no claim to recover. The proposition which seems to be relied on by respondent, and to have been acted on by the trial court, is inadmissible. Where the owner of the adjoining land builds the fence, the railroad company may, with his assent or acquiescence, adopt it. In the absence of any agreement it will still be its duty to maintain it in good condition, and to restore it if removed by the owner. But so long as it remains and is kept in good condition, no matter by whom, so that domestic animals do not get upon the track by reason of any defect in it, the company is not liable as for failure to perform the duty to fence imposed on it by the statute. The statutory duty is discharged, though performed for the company by a mere volunteer.

Order reversed, and new trial ordered.