(after stating the facts). The plaintiff seeks to recover damages from the defendant, upon the ground that the defendant, in constructing its road through his land, excavated a cut from ten to eighteen feet deep, and failed to fence it up, in consequence of which the plaintiff’s mare, blind in one eye and sore-eyed in the other, fell into it and broke her neck.
The sole question presented in this case is, whether a railroad company is bound to fence the excavations made in the construction of its road, so as to prevent horses and cattle from falling *330into them. A railroad company, at common law, is under no-obligation to fence its road. The matter of fencing their lines by railroad companies, is wholly one of statute regulation. In the absence of a statute requiring it, there is no duty to maintain fences. Campbell v. New York and New England Railroad Co., 50 Con., 128.
The same doctrine is laid down by Wood, in his work on Railway Law, vol. 3, p. 1543, where it is said : “A railway company, at the common law, is under no other or different obligation respecting the premises occupied by it, than any other owner or occupant of real estate, and unless so required by statute, it is under no obligation to fence its track; and as the owner of adjoining lands is bound to restrain his cattle, it is not liable for cattle killed or injured upon its track, simply because it had omitted to erect fences or other barriers to prevent them from getting there; and consequently, in such cases, a railroad company is only liable for injuries to cattle upon its track, which result from its negligence.”
In this State, we have no statute which requires railway companies to fence their roads.
In the assessment of damages against railway companies, when land is condemned to the use of the road, the costs of fencing is held to be an element in the measure of damages to the owner of the land. Railroad Co. v. Wicker, 74 N. C., 220, and Fredle v. North Carolina Railroad Co., 4 Jones Law, 89.
The plaintiff has no cause of action against the defendant. It was his own folly to have turned his mare into an enclosure where it was liable to fall into such an excavation.
No error. Affirmed.