Slattery v. St. Louis, Kansas City & Northern Railroad

delivered the opinion of the court.

This was an action commenced before a justice of the peace, under § 43,1 Wagn. Stat., 310. The plaintiff charged the defendant with killing several hogs and injuring others belonging to him, by reason of its failure to erect and maintain good *363and substantial fences on the sides of the railroad as required by that section, and claimed double damages under the statute; for the alleged injury. The case was taken by appeal to the Circuit Court, and was tried before the court without a jury, and resulted in favor of the plaintiff. The court gave judgment for double damages, and the only question presented here is whether the court had a right to double the damages, The proof showed that some of the hogs were killed within an inclosure where the road was not protected as the statute requires, and the others' were killed and wounded where the-road ran through timbered lands. The bill of exceptions does not show whether the timbered land was inclosed or uninclosed. The statute eomtemplates that all enclosed lands, whether timbered or not, shall be protected; that is, the road must be fenced where it runs through, along or adjoining enclosures of all kinds.

The object is to protect the cattle and other stock belonging to farmers and others located along the road. Timbered enclosures are as often used for pasturing stock as any other enclosure, and therefore fall within the meaning and spirit of the statute. Every intendment must be made in favor of the verdict and judgment. It was not. shown that the timbered land was unenclosed, and therefore upon the record as it stands here, the judgment must be affirmed.

Judgment affirmed.