*CHAPTER XVIII.

INJURIES TO DOMESTIC ANIMALS.

1. Company not liable unless bound to keep | 15. Actions may be maintained sometimes, for the animals off the track.

remote consequences of negligence.

2. Some cases go even further, in favor of 16-18. Especially where a statutory duty is the company. neglected by company. 3. Not liable where the animals were wrong- 19. The question of negligence is one for the fully abroad.

4. Not liable for injury to animals, on land where company not bound to fence.

jury.

20. One who suffers an animal to go at large can only recover for gross neglect.

5. Where company bound to fence are primâ 21. Testimony of experts receivable as to facie liable for injury to cattle.

management of engines.

6. But if owner is in fault, company not 22. One who suffers cattle to go at large must liable. take the risk. 7. In such case company only liable for gross 23. The company owe a primary duty to pasneglect or wilful injury.

sengers, &c.

8. Owner cannot recover, if he suffer his 24. In Maryland company liable unless for cattle to go at large near a railway.

9. Company not liable in such case, unless they might have avoided the injury. 10. Where company are required to keep gates closed, are liable to any party injured by omission.

11. Opinion of Gibson, Justice, on this subject. 12, 17. Not liable for consequences of the proper use of their engines.

unavoidable accident.

25. In Indiana common-law rule prevails..
26. In Missouri, modified by statute.
27. In California cattle may lawfully be suf-
fered to go at large.

28, 29. Abstract of late cases in Illinois.
30. The weight of evidence and of presump-

31.

13. Questions of negligence ordinarily to be 32. determined by jury.

14. But this is true only where the testimony leaves the question doubtful.

tion.

Company not liable except for negligence. Company must use all statutory and other precautions.

§ 126. 1. THE decisions upon the subject of injuries to domestic animals by railways are very numerous, but may be reduced to a comparatively few principles. Where the owner of the animals is unable to show that as against the railway they were properly upon the track, or, in other words, that it was through the fault of the company that they were enabled to come upon not heard any argument as to the amount, we are not able to give judgment for what damages. The parties, probably, will empower their counsel to agree on the amount of damages; should they differ on the principle, the case may be mentioned again. Judgment for the plaintiff."

VOL. I.

30

*361

the road, the company are not in general liable, unless, after they discovered the animals, they might, by the exercise of proper care and prudence, have prevented the injury.

The fact of killing an animal of value by the company's engines, is not prima facie evidence of negligence on their part.1 A distinction is here taken by the court between injuries to permanent property situated along the line of the railway, as injury to buildings by fires communicated by the company's engines, and damage to cattle which are constantly changing place, there being more evidence of fault on the part of the company from the mere occurrence of the injury in the former than in the latter case.2

2. Most of the better considered cases certainly adopt this view of the subject, and some perhaps go even further in favor of exempting the company from liability, where they were not originally in fault, and the animals were exposed to the injury through the fault of the owner, mediately or immediately.

*

3. For instance, if the animal escape into the highway, and thus get upon the track of the railway where it intersects with the highway, and is killed, the company are not liable. And if the animals are trespassing upon a field, and stray from the field, upon the track of the railway, through defect of fences, which the company are bound to maintain, as against the owner of the field, and are killed, the company are not liable, either at common law or under the English statute, or upon the ground that the defendant exercised a dangerous trade. The obligation to make and maintain fences, both at common law and under the statute, applies only as against the owners or occupiers of the adjoining close.5

1 Scott v. W. & R. Railw., 4 Jones Law, 432.

2 See note 1, and also Ind. & Cincin. Railw. v. Caldwell, 9 Ind. R. 397. 3. Towns v. Cheshire Railw., 1 Foster, 363; Sharrod v. London and N. W. Railw., 4 Exch. 580. Halloran v. New Y. & Harlem Railw., 2 E. D. Smith, 257. In Maryland it was held that a statute for the protection of animals and stock did not include negro slaves. Scaggs v. Balt. & Wash. Railw., 10 Md. R. 268.

4 8 & 8 Vict. ch. 20, § 68.

5 Ricketts v. The East and West India Docks and Birm. J. Railw., 12 Eng. L. & Eq. 520. The same point is ruled in the following cases. Jackson v. Rut. & Bur. Railw., 25 Vt. R. 150. See also cases referred to in §§ 166, 167. And

4. So where the statute requires railways to fence their road, where the same passes through "inclosed or improved lands," if injury happen to another's cattle through want of fences, upon common or uninclosed land, it is not legally imputable to the negligence of the company.6

5. But if the railway are bound to maintain fences, as against the owner of the cattle, and they come upon the road through defect of such fences, and are injured, the company are, in general, liable without further proof of negligence.7

it was held, Man. Sh. & Lincolnshire Railw. v. Wallis, 25 Eng. L. & Eq. 373, that a railway are not bound to fence against cattle straying upon a highway running along the railway, and that they are not liable for an injury sustained by cattle in getting from such highway upon the railway, through a defect of the fences maintained by the company; although the cattle strayed upon the highway without any fault of the owner. Brooks v. N. Y. & Erie Railw., 13 Barb. 594. But in the Midland Railw. v. Daykin, 33 Eng. L. & Eq. 193, it was held, that where a colt strayed from a field, upon a public road, abutting upon which was a yard not fenced from a railway, the gate of which was, through the neglect of the company's servants, left open, and, while the colt was being driven back to the field by the servants of the owner, it escaped into the yard, and thence upon the railway, where it was killed by a passing train, the company were liable. Jervis, Ch. J., says: "I can see no room to doubt that that was a lawful use of the highway." But in Ellis v. London & Southwestern Railw., 2 H. & N. 424, where a railway company constructed their road across a public footway, in such a manner that no security against injury to passers on the way was afforded within the provisions of the English statute, 8 & 9 Vic. ch. 20, §§ 46, 61, 68, by means of a bridge or stile, but the company erected high gates which obstructed the footway and gave the key to plaintiff's servant, which had been lost and the gates left open, without notice to the railway company, whereby the plaintiff''s colts escaped from his lands adjoining, and came upon the railway and were killed by a passing train, the jury having found that the plaintiff, by his own negligence and that of his servants had contributed to the accident, it was held he could not recover, notwithstanding the omission of duty by the company.

• Perkins v. Eastern Railw. and the Boston & M. Railw., 29 Maine R. 307. And if by the common usage cattle have the right to run upon uninclosed land, the owner incurs the risk of all accidents. Knight v. Abert, 6 Barr, 472; Phil. & Germ. Railw. v. Wilt, 4 Whart. 143,

7 Suydam v. Moore, 8 Barb. 358; Waldron v. Rensselaer & Sar. Railw., 8 Barb. 390; Horn v. Atlantic & St. Lawrence Railw., 35 N. H. R. 169; s. c. 36 Id. 440; Smith v. Eastern Railw., 35 N. H. R. 356. But where the cattle come upon the railway, at a point not proper to be fenced, as at the intersection of a highway, or at a mill yard, the company are not liable for injury to them, unless

*

6. But where the statute imposes the duty of building fence upon the railway, they may lawfully stipulate with the land-owners to maintain it, and if such land-owner suffer his cattle to be where they may come upon the railway without building the fence, he cannot recover of the company.8 So, too, if the plaintiff leave down the bars at a cattle crossing, whereby his cattle go upon the railway and are killed, he cannot recover.9

7. And where the cattle go upon a railway through defect of fences, which the owner is bound to maintain, and suffer damage, the owner has no claim upon the company, unless, perhaps, for what has sometimes been denominated gross negligence, or wilful injury,10 for in such cases the cattle are regarded as trespassers, 10 and the owner the cause of the injury sustained, unless the railway might have prevented it.

But where there was no reasonable ground to suppose that the portion of fence which it was the duty of the company to build would have protected the animals, and the owner was shown to have been guilty of negligence in not taking care of them, it was

the plaintiff prove some fault on the part of the company's servants, besides the want of fences. Indianapolis & C. R. v. Kinney, 8 Ind. R. 402; Lafayette & Ind. Railw. v. Shriner, 6 Ind. R. 141.

8 Tower v. Prov. & Wor. Railw., 2 Rhode Island R. 404, 411; Clark v. Sy. & Utica Railw., 11 Barb. 112; C. H. & D. Railw. v. Waterson, 4 Ohio St. 424. So, also, where the duty of maintaining the fences along the railway is upon the land-owner, and it is burned down by fire, communicated by the company's engines, and he suffers his fields to remain unfenced, whereby his cattle go upon the track, and are killed, he cannot recover. If the company are in fault, and liable to damages in regard to the fire, this does not oblige them to rebuild the fence, nor will it justify the plaintiff in suffering his fields to remain unfenced except at his own peril. Terry v. New York Central Railw., 22 Barb. 574.

• Waldron v. Portland, S. & P. Railw., 35 Maine R. 422.

2

10 Tonawanda Railw. v. Munger, 5 Denio, 255; s. c. 4 Comst. 349; Clark v. Syracuse & Utica Railw., 11 Barb. 112; Williams v. Mich. Central Railw., Mich. R. 259. In this case the horses were wrongfully upon the railway, and the court say "they (the company) cannot be held liable for any accidental injury which may have occurred, unless the lawful right of running the train was exercised without a proper degree of care and precaution, or in an unreasonable or unlawful manner." See also Garris v. Portsmouth & Roanoke Railw., 2 Ired. 324; C. H. & D. Railw. v. Waterson, 4 Ohio St. 424; C. C. & C. Railw. v. Elliott, 4 Ohio St. 474; New Albany, &c. Railw. v. McNamara, 11 Ind. R.

543.

held there could be no recovery, since his negligence was the direct and proximate cause of the injury.11

8. And it was held to be gross negligence for the owner of cattle to suffer them to go at large, in the vicinity of a railway, whether the same was fenced or not.1 12

9. It has been held not to be sufficient in such cases to charge the company, to show that they were running at an unreasonable rate of speed, or without proper care in other respects.13 The only question in such case is, we apprehend, whether the company, after discovering the peril of the animals, might have so conducted as to have prevented the injury.18 The same rule obtains, which does in actions for personal injuries, where there is fault in both parties.

This subject is extensively discussed in Vicksburg and Jackson Railway v. Patton,14 and the doctrine enunciated, that the owner of domestic animals not of a dangerous character, may lawfully suffer them to depasture upon the uninclosed commons, and if they wander upon the premises of others not inclosed, the owner of the animals is not liable for any damage in consequence.

But a railway, crossing such common, has the same right to its unobstructed use as the owner of cattle, and they may law

11 Joliet & Northern Ind. Railw. v. Jones, 20 Illinois R. 221.

12 Marsh v. N. Y. & Erie Railw., 14 Barb. 364; Talmadge v. Rennsselaer & Saratoga Railw., 13 Barb. 493; Louisville & Frankfort Railw. v. Milton, 14 B. Monroe, 75. This is where the plaintiff below suffered the company to build a railway through his field without stipulating that they should fence the track, and his cattle running upon the track while depasturing in the field were killed, and the court held the company are not liable, "unless the injury could have been avoided with reasonable care." But in Housatonic Railw. v. Waterbury, 23 Conn. R. 101, it was held that in such case the company hold their easement subject to the land-owner's right to cross and recross, to and from the different sections of his farm, provided the right is reasonably exercised, and that the land-owner is not chargeable with negligence in letting his cattle run on his land unfenced, unless he knew they were accustomed to keep near the track, thus imposing a duty of watchfulness on both parties.

13

Vandergrift v. Rediker, 2 N. J. R. (Zab.) 185; Clark v. Sy. & Utica Railw., 11 Barb. 112; Williams v. Mich. Central Railw., 2 Mich. R. 259; Lafayette & Ind. Railw. v. Shriner, 6 Porter (Ind.), 141. Here it is held the company are liable for gross negligence, even where the cattle are wrongfully upon the road. 14 31 Miss. R. 156; Gorman v. Pacific Railw., 26 Mo. R. 441.