74-601. Fencing; cattle guards.

Within six months after the lines of the railroad or any part thereof is open, each railroad shall erect and thereafter maintain fences on the sides of its right-of-way, or the part thereof so open for use, suitable and sufficient to prevent cattle, horses, sheep, and hogs from getting on such right-of-way, except at the crossings of public roads and highways, and within the limits of towns, cities, and villages, with openings, gates, or bars at all the farm crossings of its tracks for the use of the proprietors of the lands adjoining such right-of-way. Each railroad shall also construct and maintain, at all road crossings, cattle guards suitable and sufficient to prevent cattle, horses, sheep, and hogs from getting onto such right-of-way.

Source

Annotations

1. Necessity of fencing

2. Liability for failure to fence

3. Miscellaneous

1. Necessity of fencing

The refusal of the War Department to permit the erection of fences upon a military reservation constituted sufficient justification for the failure of the railway company to fence its tracks running through said reservation. Anderson v. Chicago & N. W. Ry. Co., 102 Neb. 578, 168 N.W. 196 (1918).

The spirit of this statute requires a railroad company to so fence and enclose its tracks, aside from the exceptions therein noted and except at such points as would endanger the lives of its employees, in such a manner as to prevent stock from entering upon the right-of-way. De Graw v. Chicago, B. & Q. Ry. Co., 101 Neb. 724, 164 N.W. 706 (1917).

The fact that this statute does not make fencing obligatory within the limits of cities or villages does not mean that there cannot be actionable negligence for failure to enclose such premises which may be dangerous under particular circumstances. Krummack v. Missouri P. Ry. Co., 98 Neb. 773, 154 N.W. 541 (1915).

Where the establishment of fences or cattle guards would endanger the lives of trainmen, the company is not only excused from enclosing its right-of-way but is also under a duty not to do so. Burnham v. Chicago, B. & Q. Ry. Co., 83 Neb. 183, 119 N.W. 235 (1909).

Whether the business of the public with the railroad or the operation of the railroad with due regard to its employees' safety would excuse a failure to fence the track at the point where the injury occurred is a question for the jury. Rosenberg v. Chicago, B. & Q. R.R. Co., 77 Neb. 663, 110 N.W. 641 (1906).

A railroad company is not required to fence its right-of-way across a public highway, whether such highway is established by legal authority or by adverse user. Chicago, B. & Q. R.R. Co. v. Dowhower, 74 Neb. 600, 104 N.W. 1070 (1905).

Failure to fence the right-of-way in a particular locality outside the limits of a city, town, or village, is excusable to an extent sufficient to afford the public and the railroad company necessary facilities for transacting the business reasonably to be expected at such locality. Chicago, B. & Q. R.R. Co. v. Sevcek, 72 Neb. 793, 101 N.W. 981 (1904), reversed on the evidence, 72 Neb. 793, 110 N.W. 639 (1906).

A track remote from the depot grounds, not within the limits of any city, town, or village, not near a crossing, and not necessary for use in making up trains is not within the exception to this statute requiring rights-of-way to be fenced. Union P. R.R. Co. v. Knowlton, 43 Neb. 751, 62 N.W. 203 (1895).

Gates at farm crossings are part of the railway fence and, like it, must be sufficient for the purposes indicated in this section. Fremont, E. & M. V. R.R. Co. v. Pounder, 36 Neb. 247, 54 N.W. 509 (1893).

A railroad company is not required to fence that part of its station grounds extending outside the city limits and upon which abuts a platted addition to such city, when such grounds are constantly used and are necessary for the proper transaction of its business as a common carrier. Chicago, B. & Q. R.R. Co. v. Hogan, 30 Neb. 686, 46 N.W. 1015 (1890), rehearing of 27 Neb. 801, 43 N.W. 1148 (1889).

This section does not impose upon railroad companies the duty of putting in cattle guards at farm crossings, but requires only that openings shall be made in the right-of-way fence with gates or bars to close and secure such openings. Omaha & R. V. R. Co. v. Severin, 30 Neb. 318, 46 N.W. 842 (1890).

2. Liability for failure to fence

Constitutionality of act imposing liability for failure to maintain fences on railroad right-of-way sustained. Linenbrink v. Chicago and N.W. Ry. Co., 177 Neb. 838, 131 N.W.2d 417 (1964).

This statute does not impose liability upon a railway company for injuries to stock caused by themselves when straying upon the right-of-way, for, to warrant recovery under its terms, not only must the company have been negligent in maintaining a fence but the damages must have been done by its agents, engines, or trains. Brei v. Chicago, B. & Q. R.R. Co., 130 Neb. 496, 265 N.W. 539 (1936).

Where the railway company failed to maintain fences as required by this section and in consequence thereof animals went upon the tracks and were injured, the simple negligence of the owner in allowing his stock to escape was no defense in an action for damages incurred by such owner. Burlington & M. R.R. Co. v. Webb, 18 Neb. 215, 24 N.W. 706 (1885), 53 Am. R. 809 (1885).

3. Miscellaneous

Failure to fence the right-of-way does not in any respect affect the railroad company's right to its easement nor determine the width thereof. Roberts v. Sioux City & P. R. Co., 73 Neb. 8, 102 N.W. 60 (1905), 2 L.R.A.N.S. 272 (1905).

The fence which is erected by the railroad company must conform to the requirements of this section. Chicago, B. & Q. Ry. Co. v. James, 26 Neb. 188, 41 N.W. 992 (1889).

Railroad right-of-way across Fort Robinson Military Reservation was subject to exclusive jurisdiction of federal government. United States v. Unzeuta, 281 U.S. 138 (1930).