entered the right-of-way the railroad of appellant ran through the farm of one J.H. Stewart from one side of said farm to the other, bisecting the same, and there was but one opening through said right-of-way fence within the Stewart farm, and that the said opening was protected by gates which were in good condition and that the railroad right-of-way fence was in good condition, the opening in the right-of-way fence was one required by law, and it was error for the Court to find that the defendant failed to use ordinary care in keeping his right-of-way fence closed and that said failure was the proximate cause of such injury to Plaintiff's mule. Rev. Stats., arts., 6486, 6603; M.K. T. Ry. Co. v. Hanacek, 93 Tex. 446; M.K. T. Ry. Co. v. Chenault, 24 Texas Civ. App. 481[ 24 Tex. Civ. App. 481], 60 S.W. 55; H. T.C. Ry. Co. v. Hollingsworth, 29 Texas Civ. App. 306[ 29 Tex. Civ. App. 306], 68 S.W. 724; M.K. T. Ry. Co. v. Davis, 118 S.W. 234; Texas Cent. Ry. Co. v. Jenkins, 120 S.W. 948; M.K. T. Ry. Co. v. Butler, 121 S.W. 176. Lewis Dean, for appellee.

Consequently, the appellee cannot be held liable for killing said animals without proof that it was in some manner guilty of negligence which was the proximate cause of such killing. Missouri, K. T. Ry. Co. of Texas v. Hanacek, 93 Tex. 446, 55 S.W. 1117; Butler v. Baker, Tex.Civ.App., 226 S.W. 827; Missouri, K. T. Ry. Co. of Texas v. Butler, Tex.Civ.App., 121 S.W. 176. There are many other cases holding to the same effect. We are of the opinion that the proper disposition was made of this case by the court.

In other words, we think the right of way must be regarded as fenced, notwithstanding such opening, it having been authorized and required by law. In support of our conclusion, the following authorities may be cited: Vernon's Sayles Civil Statutes, art. 6486; Railway v. Hollingsworth, 29 Tex. Civ. App. 306, 68 S.W. 724; Railway v. Hanacek, 93 Tex. 446, 55 S.W. 1117; Railway v. Davis, 54 Tex. Civ. App. 516, 118 S.W. 234; Railway v. Butler, 121 S.W. 176; Penshorn v. Railway Co., 186 S.W. 868. Appellant has cited three cases, neither of which is believed to be in point.

The lane referred to appears to have been built long afterward by the present owner of the farm. There is, then, in the record that which shows it to have been the duty of the railroad company to leave an opening in its right of way through this enclosure, and under numerous decisions it became the duty of the person for whose benefit such gate was erected to keep it closed. (Missouri, K. T. Ry. v. Hanacek, 23 Texas Civ. App. 394[ 23 Tex. Civ. App. 394], 93 Tex. 446; Texas P. Ry. Co. v. Corn, 102 Tex. 194; Texas P. Ry. Co. v. Webb, 102 Tex. 201; Missouri, K. T. Ry. Co. of Texas v. Davis, 54 Texas Civ. App. 516[ 54 Tex. Civ. App. 516]; Missouri, K. T. Ry. Co. of Texas v. Butler, 121 S.W. 176.) Appellee's animals strayed from her enclosure through this gate on to appellant's right of way and were killed.