74-602. Failure to fence or repair; liability.

So long as such fences and cattle guards are not made after the time prescribed in section 74-601 has elapsed and when such fences and guards, or any part thereof, are not in sufficiently good repair to accomplish the objects for which they are intended, such railroad and its agents shall be liable for any damage which is done by the agents, engines, or trains of any such railroad, or by the locomotives or trains of any other railroad permitted to run over or upon such tracks, to any cattle, horses, sheep, or hogs thereon. When such fences and guards have been fully and duly made and are kept in sufficient repair, such railroad shall not be liable for any damages, unless the damage arises from negligent or willful acts of the railroad or its agents.

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Annotations

This statute does not deprive the railroad company of its property without due process of law or deny to it the equal protection of the law, and under its terms a company may be liable for injuries to animals upon its right-of-way although there be no collision between its trains and the animals injured. Middaugh v. Chicago & N. W. Ry. Co., 114 Neb. 438, 208 N.W. 139 (1926).

If a railway company fails to maintain a fence along its right-of-way as required by this section and in consequence thereof horses go upon the track and are injured, the fact that the horses were, at the time, running away does not exonerate the company. Larson v. Chicago & N. W. Ry. Co., 89 Neb. 247, 131 N.W. 201 (1911).

This statute was not intended to provide a penalty for a failure to maintain cattle guards but to afford compensation to an owner for stock injured in consequence of such failure, so that, to warrant a recovery under its terms, the injury must be traceable to the railroad company's omission to perform that duty. Chicago, B. & Q. R.R. Co. v. King, 76 Neb. 591, 107 N.W. 981 (1906).

To create liability under this section, in addition to the company's failure to maintain a fence, the injury must have been occasioned by an agent, engine, or train of the company, but it is not essential to recovery that there must have been a collision between the animals and the train. Chicago, B. & Q. R.R. Co. v. Cox, 51 Neb. 479, 71 N.W. 37 (1897). Overruling B. & M. R.R. Co. v. Shoemaker, 18 Neb. 369, 25 N.W. 365 (1885).

In an action for the wrongful death of an infant, evidence of the company's failure to fence its tracks as required by this section is admissible, for the statute is in the nature of a police regulation imposing a positive duty upon the company, and the failure to obey its provisions is negligence. Chicago, B. & Q. R.R. Co. v. Grablin, 38 Neb. 90, 56 N.W. 796 (1893).