Ohio & Mississippi Railroad v. Brubaker

Mr. Justice Lawrence delivered the opinion of the Court:

This was an action against a railway company for killing an ass, and the only question raised upon the record is, whether that animal falls within the protection of the statute which requires railway companies to erect and maintain fences “sufficient to prevent cattle, horses, sheep and hogs from getting on such railroad.”

This statute is not, as assumed by counsel for appellants, a penal statute, and, therefore, to be strictly construed. It is, on the contrary, a remedial statute, imposing a reasonable duty on railway companies, and furnishing a remedy to parties injured in case that duty is not performed. Its object was to protect domestic animals, and there can be no doubt the legislature intended to protect mules and asses as mucli as horned cattle, horses, sheep or hogs. Heither does the language of the statute create any difficulty in carrying out what we must presume to have been the legislative intent. The horse and the ass are both defined by lexicographers as “ quadrupeds of the genus equus,” and the term “ cattle ” is defined by the same authorities as including horses and asses as well as domesticated horned animals. There are, then, two terms used in the statute, in either of which the ass might be included.

Judgment affirmed.