Winkler v. Carolina & N.W. Ry. Co.
| Decision Date | 17 April 1900 |
| Citation | 35 S.E. 621,126 N.C. 370 |
| Parties | WINKLER v. CAROLINA & N.W. RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Catawba county; Bowman, Judge.
Action by Robert Winkler against the Carolina & Northwestern Railway Company to recover damages. From a judgment in favor of defendant on motion to nonsuit, plaintiff appeals. Reversed.
In an action against a railroad company for damages to a horse caused by entanglement in a barbed-wire fence erected by such company along its right of way through plaintiff's pasture, where there was evidence that such fence consisted of three strands of wire, strung on rotten cross-ties 40 or 50 feet apart, and so constructed that it swagged about 12 inches in places when people crossed it, the top wire ranging from 12 to 35 inches from the ground, it was error to nonsuit the plaintiff, since, though defendant was not compelled to put up a fence at all, if it did so its liability was that of any one putting up and maintaining a dangerous fence.
E. B Cline and M. H. Yount, for appellant.
J. H Marion and T. M. Hufham, for appellee.
The defendant erected a barbwire fence along its right of way. There was evidence that it was negligently erected and maintained. The plaintiff's horse, running in his pasture, got entangled in this wire fence, and was injured, and this action is brought for damages sustained.
It was error in the judge to nonsuit the plaintiff. In Sisk v Crump, 112 Ind. 504, 14 N.E. 381, 2 Am. St. Rep. 213, it is said: "The act of a landowner in erecting upon his property along a public highway a barb-wire fence does not in itself render him liable to one who sustains an injury therefrom, but, if he negligently constructs and maintains it in such a manner as to be dangerous, he is liable, for instance, for injury to an animal which is attracted by other animals, or by grass growing inside the fence, and in endeavoring to cross such defective fence becomes entangled therein." The court says the statute of that state expressly authorizes the erection of barb-wire fences, and the liability comes only from their neglected condition. To exactly the same purport is Loveland v. Gardner, 79 Cal. 317, 21 P. 766, 4 L. R. A. 395, that, while the owner of land is not liable, from the mere act of constructing a wire fence thereon, for damages sustained by the animals of others, yet he is bound to see that the fence is not so negligently maintained as to become a trap for them from their natural propensities, of which he must take notice. The liability of the defendant in this case is that which would attach to any one else putting up a defective fence, which is, from its peculiar nature, thereby made dangerous.
Chapter 65 of the Laws of 1895 makes it unlawful to erect a barb-wire fence along any public road or highway, unless a railing is placed on top of the fence, not less than three inches high. It is perhaps to be regretted that this act is restricted to the counties therein named. But, though Catawba (whence this appeal comes) is one of such counties, we think the act has no application here, for the...
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