Childers v. Louisville, New Albany & Chicago Railway Co.

Concurring Opinion.

Davis, J. —

The owner is not necessarily a wrongdoer when, without fault on his part, stock escapes from his premises. Louisville, etc., R. W. Co. v. Ousler, 36 N. E. Rep. 290; Ohio, etc., R. W. Co. v. Craycraft, 5 Ind. App. 335.

Ordinarily, my opinion would be that if the duty to fence, as required by statute, is negligently violated and the violation of the duty is the proximate cause of the *689injury, tlie right of action of the owner of the stock is clear and complete. Section 5323, R. S. 1894; Louisville, etc., R. W. Co. v. Hendricks, 128 Ind. 462.

The courts, however, have…