See also Great Northern Fishing Co. v. Edgehill, 11 Q. B. D. 225.
[310]. Arguments omitted. Only so much of the opinion is given as relates to a single point.
[311]. Groves v. Wimborne, [1898] 2 Q. B. 402; Cowen v. Story & Clark Co., 170 Ill. App. 92; Andersen v. Settergren, 100 Minn. 294; Schaar v. Conforth, 128 Minn. 460 Accord. Compare Stehle v. Jaeger Machine Co., 220 Pa. St. 617; Drake v. Fenton, 237 Pa. St. 8.
[312]. Arguments of counsel omitted.
[313]. Bischof v. Illinois R. Co., 232 Ill. 446; Frontier Steam Laundry Co. v. Connolly, 72 Neb. 767; Hocking R. Co. v. Phillips, 81 Ohio St. 453 Accord.
Breach of statutory duty toward third person, see Gibson v. Leonard, 143 Ill. 182; Woodruff v. Bowen, 136 Ind. 431; Bott v. Pratt, 33 Minn. 323; Kelly v. Muhs, 71 N. J. Law, 348; Beehler v. Daniels, 19 R. I. 49. Compare Racine v. Morris, 201 N. Y. 240.
In Stanley v. Atchison R. Co., 88 Kan. 84, Mason, J., says:
“The evidence tended to show these facts: Stanley kept a number of cattle in a feed lot one side of which was formed by the right-of-way fence. Employees of the company who were engaged in its repair removed a part of it, as well as a part of Stanley’s fence which connected with it, and as a temporary protection strung two wires across the gap. The protection was insufficient and the cattle escaped. None of them was injured upon the right of way, but a number strayed and were not recovered, and others suffered injury, in some cases fatal.
The defendant maintains that in any view of the findings the judgment ought not to be reversed, for the reason that the petition does not state a cause of action, because the company was under no obligation to maintain the fence, except for the purpose of avoiding liability for animals killed or injured by its trains, and therefore cannot be held accountable for any other kind of loss occasioned by the want of a sufficient fence. The original statute upon the subject does not in terms require a railroad right of way to be fenced. It makes the company responsible for animals killed or injured by the operation of its railway irrespective of negligence, except where the road is enclosed with a lawful fence.... The later statute imposed a duty on the railroad company to maintain the fence, and it is liable for any injury of which its neglect of such duty is the proximate cause....
The defendant urges that the purpose of the statute referred to is to promote safety in the running of trains; that in this purpose is found the only warrant for imposing upon the railroad company the obligation to fence its right of way; and that therefore the company’s liability must be limited to injuries resulting from the operation of the road, and the state has no power to make it liable for losses occasioned by the escape of animals which do not meet with any injury upon the right of way. Assuming that the right of the legislature to require a railroad company to fence its tracks is based solely upon the consideration that such fencing may be deemed necessary to diminish the danger of injury to animals from the operation of trains, and to persons and property resulting from trains colliding with animals, it is competent as a means of enforcing such requirement to make the company liable for losses occasioned to the landowner by the escape of his cattle through a defective fence, although they pass from the right of way without injury.”