A Treatise On The Law Of Contributory Negligence Or Negligence As A Defense

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1892 edition. Excerpt: ... a railway to make and maintain a fence may arise out of contract.9 And such a contract will be implied, if in granting the right of way the award of damages was made on the understanding that a fence would be erected and maintained by the company.1 In Kentucky, per contra, it is held that neither the grantor of right of way to a railway company through his property, nor the company itself, is under any legal obligation to maintain fences.2 When the track is not fenced by the railroad company, it will be held to assume the risk of damage to its own property, as the result of all intrusions from animals, just as other proprietors are held to do who leave their lands unenclosed.2 In Vicksburg, &c., R. Co. v. Patton, ' the court said: --" As a proprietor, the company is under no greater obligation to fence its road than any other owner of land; but, in the event of an injury, the fact that the road was not fenced must and should exercise an infiuence in weighing the degree of care to be employed by the company. When an injury is done, the omission to fence will be weighed along with the other circumstances in determining the measure of burg, 32 Ind. 199. In this case a railroad company agreed, in part consideration for a right of way, to reimburse the owner of the land for whatever damage might be done by the running of the cars. Held, that the company was not bound by this contract to answer in damages for the consequences of the landowner's negligence. 'Roll. Abr. Trespass, 565, pl. 3; 2 Waterman on Trespass, 299; Kerwhacker 0. Cleveland, &c., R. Co., 3 Ohio St. 172, 185; s. c. 62 Am. Dec. 246; Atlantic, &c., R. Co., 0. Burt, 49 Ga. 606; Macon. &c., R. Co. 0. Vaughn, 48Burt, 464; Vicksburg, &c.. R. Co....