Page:Federal Reporter, 1st Series, Volume 4.djvu/884

870 FEDERAL REPORTER. �adopted by this act,) the particular portion of the fence each owner is to be responsible for, and I do not see how either ia to be held for any particular portion without Buch provision. However, it is clear the first section oannot applyto this case. The case does undoubtedly fall within the letter of the second section, because the cattle-guards and the adjoining fencing on the company's land, when joined to Mrs. Ward's fences, place the railroad land and her fields -within "one general enclosure." �As before remarked, it is my judgraent that this statute never was intended to apply to land on which a railroad is built, surrounded by and enclosed with fields like this, and for the manifest reason of a want of mutuality of benefit. The company derives no benefit from this enclosure. It may keep cattle outaide of this particular part of the track, but the road is open to ail cattle with in the enclosure, and Mrs. Ward has an undoubted right to keep such cattle there as she chooses. There is no benefit to the railroad, nor protection against cattle trespassing on its land, nor any need of it, in the absence of a fence along the whole road. If Mrs. Ward's cattle, being in her field, or other cattle being there by her permission, of through her neglect to keep up her part of the fences around the enclosure, were to go upon the railroad and cause the wreck of its trains, there could be no recovery against her by the company. The statute was clearly only intended to apply to farmers mutually benefited by having lands within a common enclosure, which they oultivate or otherwise use for agricultural purposes. It is the merest literalism to apply the statute to a case like this. �But, again, if it be conceded that this statute does apply to a case like this, the petitioner cannot recover, because of her contributory negligence. It may be admitted in this connec- tion that the common-law obligation on eveiy peraon to restrain his beasts on his own land has been so far modified that no negligence ean be imputed if they are suffered to run at large. Kerwhacker v. Railroad, 3 Oliio St. 173; Rnilroad V, Waterson, 4 Ohio St. 424:; Seeley v. Petcrs, 10 Ili. 130; McAfee v. Cratv/ord, 13 How. 447, 457; Alger v. Railroad, ����