GILL v. LOUISVILLE & N. R. CO., 165 F. 438

PER CURIAM. This suit was brought by the plaintiff’s intestate, an employé of the defendant railroad company, who was killed through the derailment of an engine by a collision with a cow which had strayed upon the unfenced track of the defendant.

It was averred in the petition that the intestate’s “death was due wholly to the carelessness and negligence of the defendant in failing to erect and maintain a fence along its said track, so as to prevent live stock from going thereon,” and that the defendant “wholly failed to fence its track in Blount county [wherein the accident occurred], or to protect and guard its tracks, rails, and right of way in said county by a fence or inclosure of any sort, in direct violation of law, and especially tlie fencing act passed by the Legislature of Tennessee for the protection of life and property, both on the trains and upon the tracks.” After careful consideration, the court below delivered a written opinion, reported in Gill v.

L. & N. R. R. Co. (C. C.) 160 Fed. 260, in which the demurrer was sustained and time allowed to amend. It was not possible, however, to amend, and the action was dismissed. The sole question before us is whether there could be an amendment which would save the cause of action. We do not think there can be, and we fail to see the necessity for another opinion. The judgment is therefore affirmed, upon opinion of the Circuit Court.