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THE

LAW OF ANIMALS

A TREATISE

ON

PROPERTY IN ANIMALS
WILD AND DOMESTIC

AND THE

RIGHTS AND RESPONSIBILITIES ARISING
THEREFROM

By JOHN H. INGHAM

OF THE PHILADELPHIA BAR

PHILADELPHIA
T.& J. W. JOHNSON & CO.
1900

Opyright by

PREFACE.

There is, in the author's opinion, natural cause for wonder
why, at a time when of making many law-books there is no
end, the large and important subject exploited in the present
volume has been almost wholly disregarded. For just
as the law of real property differs from that of personal
property as dealing with what is immovable and indestructi-
ble, so the law of animate differs from that of inanimate prop-
erty as dealing with powers of consciousness, volition and
reproduction, and liability to suffering and death,—a distinc-
tion far more significant in science and philosophy, however
it may be in jurisprudence, than that existing in the former
case. Asa matter of fact, these powers and liabilities in ani-
mal life form the basis of an elaborate system of rights and
responsibilities which may be termed with perfect propriety
the Law of Animals. The elements of this law have, hitherto,
lain more or less concealed in numberless statutes, reports,
digests and text-books. Hardly an index of any scope can
be found in which the title “Animals” does not occur, ac-
companied by various cross-references. And yet, so far as
the present writer has been able to ascertain, no effort has
ever been made to work these scattered elements into an or-
ganic structure. It is hoped, therefore, that this treatise may
serve to the accomplishment of such an end.

It must be premised that, animals being personal property,
the whole law governing such property is applicable, of
course, to them, but it is only such particular portions of that
law as relate distinctly to their peculiar qualities that can be
called, with any technical accuracy, the Law of Animals.
Matters unconnected with their natures, dispositions and

iil

iv PREFACE.

habits, their liability to injure and be injured,—which concern
them and all other subjects of property alike, are not dis-
cussed here. For the same reason, where the animal is simply
a mechanical factor in the circumstances of a case, the decision
belongs under some other category than the present one.
This is true, for example, of the numerous cases arising under
what is called the Law of the Road, in its wider sense, which
involve merely questions of personal negligence on the part
of riders, drivers or pedestrians. Where, however, the ani-
mal becomes an active factor in the result, as through its
fright or viciousness or liability to injury, the principle of ex-
clusion above stated does not apply and the case falls natur-
ally within the scope of the present treatise. Otherwise it
should be looked for in works dealing with the Law of High-
ways or of Negligence. The general subject of Fisheries has
also been omitted as belonging properly to the domain of
Maritime and International Law and the Law of Water-
courses. But this has not precluded a full statement of the
rules governing property in fish, whales and seals.

With regard to the method of treatment adopted, it has
been the object of the author to let the cases speak as much as
possible for themselves,—in other words, to give, as far as is
consistent with reasonable brevity, the facts and grounds of
decision in all the more important cases rather than to furnish
long lists of cases to support general legal propositions. No
attempt has been made to compile and digest the statutory
law on the subjects treated of, except in so far as it is laid
down and interpreted in the decisions themselves. Where
there are so many independent jurisdictions, any other plan
would be confusing, even if it were practicable.

Of especial importance in the discussion of such a new sub-
ject have been found to be the information derived from and
conclusions deduced in essays and articles in leading reviews,
notes by learned commentators and other unofficial docu-
ments. These, as will be seen, have been carefully examined
and largely quoted, wherever that seemed desirable.

PREFACE. v

” For the benefit of such of his readers as may be desirous of
investigating matters of antiquarian and literary interest con-
nected with animals, such as their ancient trials in court for
various penal offences, the author has, in the note below,
prepared a list of sources of information on these points that
will, he thinks, be found sufficient for their needs.

If the technical text-book writer might hope to encroach
somewhat on the province of the poet and the naturalist and
awake in his readers a deeper interest in our rights and re-
sponsibilities with regard to the great world of our dumb,
though not silent, fellow-beings and their correlative right to
proper protection and kindness at our hands, such an outcome
of the time and labor spent on the present work would be, in
itself, no mean reward.

NOTE.

The reader is referred to the following articles:

Prosecutions Against Animals: 1 Amer. Jurist 223; 14.
Crim. L. Mag. 709.

Legal Prosecutions of Animals: 17 Pop. Sci. My. 619.

Bugs and Beasts Before the Law: 54 Atl. My. 235; 10
Green Bag 540; 11 id. 33.

Cats: 3 Green Bag 350.

A Legal Aviary: 7 Green Bag 182.

Legal Entomology: 7 Green Bag 323.

Animals as Offenders and as Victims: 21 Alb. L. Jour. 265-

Animals ‘l'ried in Court: 45 Alb. L. Jour. 31.

Animal Defamation [i. e., Actions for calling persons by
the names of animals]: 9 Green Bag 135; 11 id. 43.

See also, with regard to insects, “Législation et Jurispru-
dence concernant les Insectes Utiles et Nuisibles a l’Agricul-
ture et les Oiseaux Insectivoires,” par Georges Viret [Paris,.
1896].

TABLE OF CONTENTS.

TITLE I.

PROPERTY IN ANIMALS.

CHAPTER I.
WILD ANIMALS.
PAGE PAGE
1. General nature of this 8. Particular animals consid-
property, I sidered. Bees, 16
2. Character of confinement, 4 9. Pigeons, doves, pheasants
3. Pursuit, 5 partridges, swans, 20
4. Animus revertendi, 6 10. Whales, seals, 23
5. When wild animals are 11. Fish, oysters, 28
the subjects of larceny, 8 12. Cats, 33
6. Property in game. 10 13. Miscellaneous beasts, 35
7. The increase of wild ani- 14. Miscellaneous birds, 37
mals, 15 15. Inheritance in wild ani-
mals, 40

CHAPTER II.

DOMESTIC ANIMALS.

Part I. Domestic animals
and their increase.
Branding.

16. Nature of this property, 42

17. The increase of animals, 43

18. Brands as evidence of
ownership, 47

Part II. Taxation of do-
mestic animals.

19. Taxation of domestic ani-
mals, 50
Part III. Property in dogs.
20. The dog as the subject of
a civil action, 57
21. The dog as the subject of
larceny; dogs as a
source of evidence in
criminal actions, 59
22. Taxation and license, 64
vil

viii TABLE OF CONTENTS.

TILE. A,

TRANSFER OF PROPERTY.

CHAPTER I.

SALE AND MORTGAGE.

23. What may be sold, 69 31

24. Change of possession, 70

25. Animals running on the 32.
range, 72

26. Validity; damages, 74 33.

27. General nature of a war-

ranty; patent defects, 34.
etc., 76
28. Animals bought for a spe- 35

cial purpose, as breed-

ing, etc., 80 36.

29. Sale for food, 82 37
30. Warranty by a servant or

agent, 84 38.
CHAPTER

ESTRAYS.

39. What is an estray, 114 40.

What amounts to a war-
ranty,

What does not amount to
a warranty,

What constitutes un-
soundness, etc.,

Specific forms of un-
soundness,

. Return on breach of war-

ranty,
Damages on breach,

. Mortgage of animals and

their increase,
Priority of the mortgage
lien,

IT.

Rights and liabilities of
the taker-up of an es-
tray,

PAGE
86

88

116

41.
42.

43.

44.
45.

46.

51.
52.
53-
54.
55.

56.

TABLE OF CONTENTS. ix

TITLE Il.

RIGHTS OF OWNERS OF ANIMALS.

CHAPTER I.

INJURING AND KILLING ANIMALS.

PAGE PAGE

General liability, I19 47. Accidental injuries to ani-
Proximate cause and mals trespassing or

probable consequence, 121 running at large, 147
Dogs attacking persons or 48. Injuries from barbed-wire

animals, 127 fences, 153
Other attacking animals, 132 49. Insurance on live-stock, 158
Injuries inflicted on tres- so. Measure of damages; evi-

passing animals, 135 dence of value, 163
Unlicensed and danger-

ous animals; police

power, 141

CHAPTER II.

THEFT AND REMOVAL OF ANIMALS.

The felonious intent,

The taking,

Asportation, killing, re-
moval to another
county or State,

Ownership; want of con-
sent,

The description in the in-
dictment,

Horse, mare, gelding,
etc.,

167
17I
173
176
178

179

57. Cattle, sheep, hog, deer, 181
58. Living and dead animals;

evidence, 183
59. Drivine animals from the

range, 185
60. Altering brands and

marks, 186
61. Civil remedies; measure

of damages, 187

x TABLE OF CONTENTS.

CHAPTER III.

INJURIES TO ANIMALS ON HIGHWAYS.

PAGE
62. Injuries resulting from
accidental fright and a
defect in the highway;

the Massachusetts rule, 192
63. Exceptions to the above
rule where the lack of
control is but momen-

tary, 202 68.
64. The rule that the munici- 69.
TITLE IV.

65.
66.

67.

PAGE
pality is liable in such
cases, 203

Where fright is caused by
the defect, 214
Character of objects caus-
ing fright, 229
Injury from other causes, 240

Contributory negligence, 246
Evidence; damages, 254

LIABILITIES OF OWNERS OF ANIMALS.

CHAPTER I.

ANIMALS TRESPASSING AND RUNNING AT LARGE.

“70. The common-law rule
with regard to restrain-

ing animals, 258
71. Abrogation of the com-

mon-law rule, 265
72. Division fences, 269

73. Sufficiency of the fence, 274
74. Nature and results of the

trespass, 276
75. Animals straying from the
highway, 279

76.

77.

78.

79.
80.

General rules affecting lia-
bility; scienter; inten-
tion; recovery, 284

When animals are “run-
ning at large’; pastur-
ing in the highway, 290.

Statutes and ordinances
regulating running at
large, 208

Distress, 301

Other remedies against
trespassing animals, 306

TABLE OF CONTENTS. Xl

CHAPTER ITI.

IMPOUNDING. INJURIES ON HIGHWAYS. DISEASED ANIMALS.

NUISANCES.

PAGE
81. Nature of a pound, 310
82. The right to impound, 312
83. Manner of impounding;
remedies of the owner, 314
84. Damages; sale, 320
85. Horses left unguarded in
the highway, 323
86. Liability in case of horses
running away, 328
87. Damage done in _ high-

RACING.

PAGE
ways by passing ani-
mals, 338

88. Diseased animals; sale, 340
89. Diseased animals; trans-
portation and _ liability

in general, 343
go. Nuisances; diseased and

dead animals, 350
ot. Racing and betting, 361

CHAPTER III.

VICIOUS AND FEROCIOUS ANIMALS.

g2. Wild and dangerous ani-

96. Liability of owner or

mals, 372 keeper; joint and sev-
93. Negligence and contribu- eral liability, 405
tory negligence, 379 97. Action; pleading; dam-
94. Scienter, 391 ages, 414
9s. Evidence, 402
TITLE V.

BAILMENT AND CARRIAGE.

CHAPTER I.

BAILMENT.

98. Nature of bailment, 419

99. Rights of the bailee, 422

100. Duties and liabilities of
the bailee, 424

101. Negligence of servants, 428

to2. Driving or riding be-
yond the agreed point;
Sunday driving, 430

xii

103.
104.
105.

106.

110.

IIl.
II2,

113.
114.

120.

I21.

122.

123

TABLE OF CONTENTS.
PAGE

Action; damages, 432 107. Livery-stable keepers,
Agistment, 434 108, Lien of _ livery-stable
Lien of agistors and keepers,

trainers, 439 tog. Innkeepers,
Breeding, 444

CHAPTER II.

CARRIERS OF ANIMALS.

Nature of the contract 115. Delay and accident,

of carriage, 460 116. Injuries due to the na-
Restriction of liability, 469 ture and condition of
Receiving; loading; un- animals,

loading; delivery, 479 117. Notice,
Mode of transportation, 488 118. Evidence,
Food and water, 495 119. Damages,

TITLE VI.

CRUELTY—GAME LAWS.

CHAPTER I.

CRUELTY AND MALICIOUS MISCHIEF.

Cruelty to animals in

general, 523
What animals are pro-
tected, 526

What acts are prohib-
ited, 520

. Injuring for sport; dis-

horning and spaying, 537

124. Societies for the preven-
tion of cruelty; charit-
able bequests,

125. Indictment for cruelty,

126. Malicious mischief to
animals,

127. Proof of malice; indict-
ment,

PAGE

446

449
453

498

505
508

SII
516

541
543

545

552

TABLE OF CONTENTS. xiii

CHAPTER II.
GAME LAWS.
PAGE PAGE
128. Power to enact game sion of game in the
laws, 557 close season, 562
129. Capture, sale or posses- 130. Right to shoot in private
lands, 568
TITLE VII.

INJURIES TO ANIMALS BY RAILWAYS.

CHAPTER I.

LIABILITY IRRESPECTIVE OF FENCING LAWS.

131. General liability; negli- large; contributory
gence; cause of injury, 576 negligence, 607
132. Duties of trainmen; rate 135. Notice; action; parties;
of speed; signals, 585 pleading, 629
133. Liability for frightening 136. Evidence, 637
animals, 597 137. Damages, ’ 645

134. Animals running at

CHAPTER II.

LIABILITY UNDER THE STATUTES REGULATING FENCES.

138. General liability for fail- 142. Where fences are neces-
ure to fence, 652 sary; station grounds, 681

139. To what owners the 143. Action; parties; plead-
company is liable. 663 ing, 686

140. Crossings; gates, 668 144. Evidence; damages, 692

141, Cattle-guards, 675

TITLE I.

PROPERTY IN ANIMALS.

CHAPTER I.

WILD ANIMALS.

1. General nature of this property. 9. Pigeons, doves, pheasants, par-
2. Character of confinement. tridges, swans.
3. Pursuit. 10. Whales, seals.
4. Animus revertendi. 11. Fish, oysters.
5. When wild animals are the sub- 12. Cats.

jects of larceny. 13. Miscellaneous beasts.
6. Property in game. 14. Miscellaneous birds.
7. The increase of wild animals. 15. Inheritance in wild animals.
8. Particular animals considered.

Bees.

1. General Nature of This Property—The distinction be-
tween wild and domestic animals as subjects of property is
one that exists both in the common and the civil law. With-
out discussing the question whether all animals were orig-
inally fere nature until tamed by man, it may be said in the
words of Blackstone that “our law apprehends the most ob-
vious distinction to be between such animals as we generally
see tame and are therefore seldom, if ever, found wandering
at large, which it calls domite nature, and such creatures as.
are usually found at liberty, which are therefore supposed to
be more emphatically fere nature, though it may happen that
the latter shall be sometimes tamed and confined by the art
and industry of man.” }

*2 BI. Com. 391.

2 WILD ANIMALS.

In animals of the latter kind a qualified property may éxist
at the common law in three ways: per industriam hominis,
where a man reclaims and tames them, or confines them so
that they cannot enjoy their natural liberty; per impotentiam,
where the young of wild animals are too weak to escape from
the control of the land-owner; and propter privilegium, where
one has an exclusive privilege of hunting and killing animals
within his liberty.2. This property was held to cease when
the animals pass out of the control of their owner, subject to
certain exceptions to be hereafter considered.

So in the civil law, the title termed “‘occupatio,” or the ac-
quisition of ownership by taking possession of things formerly
without an owner, exists with regard to wild animals. Gaius
says: “If we have caught a wild beast or a bird or fish, the
moment this animal has been caught it becomes ours, and it
is regarded as ours so long as it is under the restraint of our
safekeeping, but when it has escaped from our keeping and
regained its natural liberty, it becomes the property of the
first taker, because it ceases to be ours. Now, it is considered
to regain its natural liberty when either it has escaped out of
our sight or, though still in our sight, the pursuit is difficult.’

In the Report of the Royal Commissioners on the Crim-
inal Code it is said: “As to living animals fere nature in
captivity we think they ought to be capable of being stolen.
When such an animal escapes from captivity, a distinction
appears to arise which deserves recognition. If the ani-
mal is one which is commonly found in a wild state in this
country, it seems reasonable that on its escape it should cease
to be property. A person seeing such an animal in a field
may have no reasonable ground for supposing that it had just
escaped from captivity. If, however, a man were to fall in
with an animal imported as a curiosity at great expense from
the interior of Africa, he would hardly fail to know that it

*2 Bl. Com. 391.
* Gai. II § 67, quoted in Salkowski’s Roman Private Law (Whitfield’s
ed.) § 83.

GENERAL NATURE OF THIS PROPERTY. 3

had escaped from some person to whom it would probably
have a considerable money value. We think that a wild ani-
mal should, on escaping from confinement, still be the subject
of larceny, unless it be one commonly found wild in this
country.” 4 ‘

And in a Georgia case the court remarked: “To say that
if one has a canary bird, mocking bird, parrot, or any other
bird so kept, and it should accidentally escape from its cage
to the street, or to a neighboring house, the first person who
caught it would be its owner, is wholly at variance with our
views of right and justice. To hold of the travelling organist
with his attendant monkey, if it should slip its collar and go
at will out of his immediate possession and control and be
captured by another person, that he would be the true owner
and the organist lose all claim to it, is hardly to be expected;
or that the wild animals of a menagerie, should they escape
from their owner’s immediate possession, would belong to
the first person who should subject them to his dominion.’®

In an article comparing the cases of Mullett v. Bradley®
and Ulery v. Jones’ it is said: “Of course in the Illinois case
there was the element that the wild nature had apparently
been overcome, and that the animal was substantially domes-
ticated. Is there, however, any essential difference between
such a case and that, for instance, of a dancing bear or other
wild animal that, although not qualified to mingle on terms
of social equality with ordinary domestic beasts, is still sub-
stantially redeemed from barbarism as well as liberally edu-
cated? If an animal of the latter class should make his
escape, it seems to us that ordinary justice and the usual
analogies of the law would require that the original owner
be permitted to reclaim him as ordinary property. The
opinion in Mullett v. Bradley expressly holds that escape to _
a native place or a natural environment is not necessary in

‘17 Ir. L. T. to. 5 Manning v. Mitcherson, 69 Ga. 447, 450.
°24 Misc. (N. Y.) 605, cited in § 10, infra.
7 81 Ill. 403, cited in § 13, infra.

,

4 WILD ANIMALS.

order to divest the qualified owner’s title. Therefore we do
not see why the rule laid down in this New York case would
not apply if a menagerie train were wrecked and such of the
animals, no matter how valuable, as were uninjured had es-
caped. Large amounts of capital and much industry are now
invested in menageries and in tamed animals for various kinds
of ‘shows,’ and such business enterprises are sanctioned by
law. It, therefore, seems to us that the universal application
of the rule laid down in Mullett v. Bradley might lead to
very grave injustice. . . . It certainly would seem that Black-
stone’s rule above quoted should not be extended, but at least
very strictly construed.” §

2. Character of Confinement—The examples usually cited by
the English jurisconsults of animals subject to this kind of
qualified property are deer in a park, hares or rabbits in an
enclosed warren, doves in a dove-house, pheasants or par-
tridges in a mew, hawks that are fed and commanded by their
owner, fish in a private pond or in a trunk, swans marked,
even if turned loose in a river, or unmarked in a private river
or pond, and bees hived and reclaimed. Otherwise of deer,
hares and conies in a forest or chase, fish in an open river or
pond, or wild fowls at their natural liberty.°7 “Encompassing
and securing such animals with nets and toils, or otherwise
intercepting them, so as to deprive them of their natural lib-

5 N. Y. Law Jour., quoted in 47 Cent. L. Jour. 430.

In 58 Alb. L. Jour. 327, it is said: “As has been pointed out by the
New York Law Journal, this rule would apply with harshness, if not with
positive injustice, to the case of a wreck of a menagerie train and the
escape of the wild animals constituting the menagerie. The modern de-
velopment of the ‘show’ business, in which large amounts of capital are
invested, would seem to require a more rigid application of the rule as
to what constitutes a return to the normal state of nature of an animal
tere nature.”

°2 Bl. Com. 302; 4 id. 235; 1 Hale P. C. 510.

A beast due to the lord of the manor by heriot custom may be seized
without the manor, although it has never been within it: Western v.
Bailey, [1897] 1 Q. B. 86.

CHARACTER OF CONFINEMENT, 5

erty and render escape impossible, may justly be deemed to
give possession of them to those persons who by their indus-
try and labor have used such means of apprehending them.” !°

But if any of these animals not subject to property are
killed, they are reduced into possession, and larceny may be
committed of their flesh and skin?! “The very circum-
stance of cutting the animal up makes it property.” 1?

Specific instances of confinement will be discussed in the
later sections of the present chapter.

3. Pursuit—Mere pursuit of a wild animal is not sufficient
to confer property. Where the defendant killed a fox in view
of the person who started, chased and was on the point of
seizing it with his hounds on waste land, the property was
held to be in the former? The pursuer must have wounded
the animal or brought it within his power and control.1* UH,
after wounding it, the hunter continues his pursuit till even-
ing, then abandons it, he acquires no property, although his
dogs continue the chase.1®

In the civil law “the question has been raised whether a
wild beast which is so wounded that it can be captured is to
be regarded as our immediate property. Trebatius con-
cluded that it was ours at once, and that it would seem to be
ours as long as we pursue it, but that if we desist from its pur-
suit, it ceases to be ours and again becomes the property of
the first taker. . . . The opinion of most has been that it is
not ours unless we have captured it, because much may
happen to prevent our capturing it; which is the better
opinion.” 16 Chancellor Kent appears to consider that this
principle of the civil law is the one adopted in the two cases

* Pierson v. Post, 3 Cai. (N. Y.) 175, 178.

“1 Hale P. C. 510; 2 Bish. New Crim. L., §§ 772, 775.
* Reg. v. Gallears, 3 New Sess. Cas. 704.

* Pierson v. Post, supra. *Tbid.

* Buster v. Newkirk, 20 Johns. (N. Y.) 75.

* Gai. II § 67; Salkowski’s Rom. Priv. Law § 83.

6 WILD ANIMALS.

cited above,!* but in the opinion in Pierson v. Post it is said:
“Toa certain extent and as far as Barbeyrac appears to me to
go, his objections to Puffendorf’s definition of occupancy are
reasonable and correct. That is to say, that actual bodily
seizure is not indispensable to acquire right to or possession
of wild beasts; but that, on the contrary, the mortal wounding
of such beasts by one not abandoning his pursuit may with
the utmost propriety be deemed possession of him; since
thereby the pursuer manifests an unequivocal intention of ap-
propriating the animal to his individual use, has deprived him
of his natural liberty and brought him within his certain con-
trol. . . . Barbeyrac seems to have adopted and had in view
in his notes the more accurate opinion of Grotius with respect
to occupancy.” 18 And in a Canadian case it was held that one
who has chased a wild animal and wounded it is to be re-
garded as the first occupant so long as he remains in pursuit,
and to be the owner as against another who catches or kills
it..® Some further cases are considered below in treating of
property in particular kinds of animals.?°

4, Animus Revertendi—It has been already said that this
property in wild animals is qualified only and ceases when
they escape from the control of their owner. If, however,
they have what is called the animus revertendi, which is only
to be known by their usual habit of returning whence they
have escaped, the rule is otherwise and they remain the prop-
erty of the original owner during their absence.21_ “The law
therefore,” as Blackstone says, “extends this possession
further than the mere manual occupation; for my tame hawk
that is pursuing his quarry in my presence, though he is at
liberty to go where he pleases, is nevertheless my property;

“2 Kent Com. 349, citing Inst. 2, 1, 13; Dig. 4, 1, 5, 2.
* 3 Cai. (N. Y.) 178.

* Charlebois v. Raymond, 12 Low. Can. Jour. ss.

See §§ 8-14, infra.

“2 Kent. Com. 348; 2 Bl. Com. 391; 13 Vin. Abr. 207; Brooke’s Abr.,
“Propertie,” 37.

ANIMUS REVERTENDI. 7

for he hath animuim revertendi. So are my pigeons that are
flying at a distance from their home (especially of the carrier
kind), and likéwise the deer that is chased out of my park or
forest, and is instantly pursued by the keeper or forester; all
which remain still in my possession, and I still preserve my
qualified property in them. But if they stray without my
knowledge and do not return in the usual manner, it is then
lawful for any stranger to take them. But if a deer, or any
wild animal reclaimed, hath a collar or other mark put upon
him, and goes and returns at his pleasure, or if a wild swan is
taken and marked and turned loose in the river, the owner’s
property in him still continues, and it is not lawful for anyone
else to take him; but otherwise if the deer has been long ab-
sent without returning, or the swan leaves the neighbor-
hood.” #4

So, in the civil law, Gaius says: “In respect of such ani-
mals as are in the habit of going and returning, as pigeons
and bees and deer, which are accustomed to go into the woods
and come again, we have this traditional rule that if they
cease to have the intention of returning, they also cease to be
ours and become the property of the first taker; now they
appear to cease to have the animus revertendi when they have
discontinued their habit of returning.” 7°

Before the Behring Sea arbitrators Sir Charles Russell
argued that the animus revertendi conferred the right of prop-
erty in animals at common law only when it was induced by
artificial means, such as taming them .or- offering them
food, and that this principle did not apply to the case of seals
which migrated and returned from natural causes, and the
decision of the arbitrators seems to sustain this view.2* This
theory may be compared with that with regard to bees re-
ferred to by Blackstone, viz.: That the only ownership in
them is ratione soli. He considers that the fact that the char-

7 2 Bl. Com. 302.
*® Gai. II § 67; Salkowski’s Rom. Priv. Law § 83.
* See § 10, infra.

38 WILD ANIMALS.

ter of the forest allows every freeman to be entitled to the
honey found within his own woods, affords great countenance
to this doctrine that a qualified property may be had in bees
in consideration of the property of the soil whereon they are
found.2® The application of this rule of the animus revertendi
to the cases of particular animals is treated below.”®

5. When Wild Animals are the Subjects of Larceny.—In order
to assert property in wild animals in a civil action, like tres-
pass, the plaintiff must show that they were already captured
or domesticated and of some value, or that they were dead,
or that the defendant killed or took them on the plaintiff's
ground, or that the game was started there and killed or cap-
tured elsewhere, the plaintiff asserting his possession by join-
ing in the pursuit.2* But ina criminal action, in order to con-
vict the defendant of larceny it was necessary at the common
law, except in one or two special cases, to show another fact
besides that the animal was dead, reclaimed or confined—viz. :
that it was of a species fit for food.2®> Animals kept for pleas-
ure, curiosity or whim, such as dogs, bears, cats, apes, parrots,
singing-birds, ferrets, foxes, etc., were held not to be the sub-
jects of larceny by reason of the baseness of their nature.?®
These exceptions arose at a time when larceny was punish-
able with death, and the principle was no doubt a sounder one
for this reason than appears at sight.2° In the report of the

*2 Bl. Com. 393. And see Mr. Justice Harlan’s opinion in the Behring
Sea Arbitration, p. 158; Rexroth v. Coon, 15 R. I. 35; Gillet v. Mason,
7 Johns. (N. Y.) 16; Idol v. Jones, 2 Dev. L. (N. C.), 162,

*© See §§ 8-14, infra.

* 2 Greenl. Ev., § 620, citing Ireland v. Higgins, Cro. Eliz. 125; Grymes
v. Shack, Cro. Jac. 262; Churchward v. Studdy, 14 East 249; Com. Dig.
Trespass A (1); Sutton v. Moody, 2 Salk. 556; Pierson v. Post, 3 Cai.
CN. Y.) 175.

* 4 Bl. Com. 235.

See on the general subject of Larceny, Title III, Ch. II, infra.

4 Bl. Com. 235.

“See the article on the Criminal Code quoted in 17 Ir. L. T. 10, and
the opinion in Whittingham v. Ideson, 8 Upper Can. L. Jour. 14.

WHEN THE SUBJECTS OF LARCENY. 9

Royal Commissioners on the Criminal Code it is said: “One
rule of the existing law is founded on the principle that to
steal animals used for food or labor is a crime worthy of death,
but that to steal animals kept for pleasure or curiosity is only
a civil wrong. The principle has long since been practically
abandoned. Sheep-stealing is no longer a capital crime, and
dog-stealing is a statutory offense; but the distinction still
gives its form to the Jaw and occasionally produces results
of a very undesirable kind. It has been lately held, for in-
stance, that, as a dog is not the subject of larceny, it is not a
crime to obtain by false pretences two valuable pointers: Reg.
v. Robinson, Bell. 34. It seems to us that this rule is quite
unreasonable, and that all animals which are the subject of
property should also be the subject of larceny.” 34

It is necessary, however, to constitute larceny, that he who
steals the animal should know it to be reclaimed or confined.*?

The exceptions to the rule that an animal must be fit for
food in order to be the subject of larceny were confined to the
cases of swans, because they were royal birds,?? hawks, on ac-
count of their generous nature and in the interests of noble
sportsmen,®* and a stock of bees, which, although not food
themselves, produced honey, which was.*®

These distinctions have been almost entirely abolished by
statute both here and in England, and, as a rule, animals that
are the subjects of property are now also the subjects of theft.
As was said in a North Carolina case: “All of the distinctions
as to animals fere nature and as to their generous or base
natures which we find in the English books, will not hold
good in this country. The English system of game laws
seems to have been established more for princely diversion

"a7 dee Te, De 10.

> Hale P. C. 510; 2 Bish. New Crim. L., § 779; Hammond on Larc.,
parl. ed., p. 36, pl. 7o.

% Dalt. Just. 156. And see § 9, infra.

3 7Hale P. C. 511; Haywood w. State, 41 Ark. 479, 482.

%® 5 East P. C., c. 16, § 41; Haywood v. State, supra. See 45 J. P. 475.

10 WILD ANIMALS.

than for use or profit, and is not at all suited to the wants of
our enterprising trappers. We take the true criterion to be
the value of the animal, whether for the food of man, for its
fur, or otherwise. We know that the otter is an animal very
valuable for its fur, and we know also that the fur trade is an
important one in America and even in some parts of North
Carolina. If we are to be bound absolutely by the English
authorities without regard to their adaptation to this country,
we should be obliged to hold that most of the animals so valu-
able for their fur are not the subjects of larceny on account
of the baseness of their nature, while at the same time we
should be bound to hold that hawks and falcons, when re-
claimed, are the subjects of larceny in respect of their gener-
ous nature and courage.” 6

The fact that the animal is dead, reclaimed or confined
should be set out in the indictment.?7

6. Property in Game.—In the case of Sutton v. Moody®® it
was held that a man has property ratione loci in animals which
are fere nature on his land, but that this property ceases
when they quit or are hunted off the land. Lord Holt laid
down the following propositions: “If a man keeps conies in
his close (as he may) he has a possessory property in
them so long as they abide there; but if they run into
the land of his neighbor, he may kill them, for then he has
the possessory property. If A. starts a hare in the ground
of B. and hunts it and kills it there, the property continues
all the while inB. But if A. starts a hare in the ground
of B. and hunts it into the ground of C. and kills it there, the
property is in A., the hunter; but A. is liable to an action of
trespass for hunting in the grounds as well of B. as of C29
But if A. starts a hare, etc., in a forest or warren of B., and

*° State v. House, 65 N. C. 315. And see the opinion in Haywood v.
State, quoted in § 14, infra.

* Rex v. Rough, 2 East P. C., c. 16, § 41.

* 1 Ld. Raym. 250. “So in the civil law. See Gai. II, § 67.

PROPERTY IN GAME. 11

hunts it into the ground of C. and there kills it, the property
remains all the while in B., the proprietor of the warren, be-
cause the privilege continues.” So in the later case of Blades
v. Higgs*® it was held that game chased and killed on A.’s
land is his property, and his servants are justified in taking it
away from the trespasser, on the ground that title to property
created merely by the act of reducing it into possession neces-
sarily implies that this reduction is effected by an act not in
any way of a wrongful nature, and that such an act effected by
one who is at the moment a trespasser is not sufficient. Lord
Holt’s proposition that if A. starts a hare in the ground of B.
and hunts it into the ground of C. and kills it there, the prop-
erty is in A., was thus commented on by Lord Chelmsford:
“It would appear to me to be more in accordance with prin-
ciple to hold that if the trespasser deprived the owner of the
land where the game was started of his right to claim the
property by unlawfully killing it on the land of another to
which he had driven it, he converted it into a subject of prop-
erty for that other owner and not for himself.”

It was also held in Churchward v. Studdy*! that where the
plaintiff’s dogs hunted and caught on the defendant’s land a
hare started on the land of a third person, the property was
thereby vested in the plaintiff, who may maintain trespass
against the defendant for afterwards taking the hare away;
and so it would be though the hare being quite spent had been
caught up by a laborer of the defendant’s for the benefit of
the hunters. In a carefully considered article*? the writer
took issue with a dictum in Reg. v. Roe,** where it was held
that an indictment charging a prisoner with stealing “one
dead partridge,” was not sustained by proof that the partridge
was wounded but was picked up while alive, though in a dying
state. Willes, J., said: “I wish to state for myself that I am
not satisfied that if the partridge had been dead when picked
up by the prisoner it would have been sufficiently reduced

“11 H. L. Cas. 621. “14 East 249. “46 J. P. 3.
811 Cox C. C. 554.

12 WILD ANIMALS.

into possession so as to sustain the charge of larceny.” On
the authority of Blades v. Higgs, supra, and of other cases
cited in this section, the author of the article concludes:
“1, When game is killed and falls upon the land of A. it be-
comes at once his absolute property. 2. This is so, whether
A. has himself killed the game or whether it has been killed
by others, trespassers or otherwise. 3. This is so, whether
the fact that the game is dead and lying upon his land is or
is not within A.’s knowledge. 4. Under such circumstances
the game is at ‘once reduced into the possession’ of A., and
he may bring an action against any one who converts it.
5. Under such circumstances any person who picks up and
dishonestly appropriates the game is guilty of larceny, except
in cases where the killing and carrying away are one continu-
ous act, as defined in Reg. v. Townley.” (Cited infra.)

The exception referred to is thus explained by Bovill, C. J.,
in Reg. v. Townley :*# “Before there can be a conviction for
larceny for taking anything not capable in its original state
of being the subject of larceny, as for instance things fixed to
the soil, it is necessary that the act of taking away should not
be one continuous act with the act of severance or other act
by which the thing becomes a chattel and so is brought within
the law of larceny. This doctrine has been applied to strip-
ping lead from the roof of a church, and in other cases of
things affixed to the soil. And the present case must be gov-
erned by the same principle.” In that case, poachers, of
whom the prisoner was one, wrongfully killed some rabbits
on crown land. They placed the rabbits in a ditch on the
same land, some of them in bags and some strapped together,
—not having any intention of abandoning their wrongful pos-
session but placing the rabbits in the ditch as a place of de-
posit till they could conveniently remove them. About three
hours afterward the prisoner came back and began to remove
the rabbits. It was held that the taking and removal of the

LR tC. €. 318:

PROPERTY IN GAME. 13

rabbits were one continuous act, and that such removal was
not larceny. So where a gamekeeper, not authorized to take
or kill rabbits for his own use, took and killed wild rabbits
upon his master’s land and sold them, and the taking, killing,
removing and selling were parts of one continuous action, it
was held that such gamekeeper could not be convicted of
embezzlement.*® And the same rule would apply if the
servant of the receiver, a dealer in game, with knowledge of
the circumstances came and took away game killed by poach-
ers and designedly left for him upon the land.*® In the ar-
ticle already quoted*’ it is said: “In the case of the game-
keeper it is clear (since the taking and carrying away are ev
hypothest one continuous act), that he has neither been guilty
of larceny, nor of embezzlement, which is only a species of
larceny: Reg. v. Read. If, however, the game had been
killed by his master or any other person not acting in concert
with the keeper, then since the game becomes the absolute
property of the Jand-owner and ‘in his possession’ so soon as
it falls dead upon his land, the keeper, if he dishonestly ap-
propriated it, would, we apprehend, be guilty of larceny.”
The following comments were made by the Law Times on
the case of Reg. v. Read, supra: “The effect of this decision
is undoubtedly that a gamekeeper may help himself to his
master’s game ad libitum, provided he takes care to make his
killing and carrying away one continuous act, without ren-
dering himself liable to be punished criminally. Now there
may be many reasons why the law never intended that poach-
ers should be put upon the same footing as felons, but, what-
ever they may be, they clearly ought not to apply to game-
keepers. The moral difference between a killing and taking
away of game by an ordinary poacher and a killing and
taking away by a man who is paid to see that no game is
killed and taken away is so great that it would be monstrous

* Reg. uv. Read, 3 Q. B. D. 131.
*6 Per Blackburn, J., in Reg. v. Townley, supra.
746 J.P. 3.

14 WILD ANIMALS.

to put the offenses on the same footing. Now that the state
of the law has by this case been brought to light, it is to be
hoped that it will not be long before it receives a necessary
amendment, so that the protection which the criminal law
now affords masters from the depredations of their servants
may be extended to such cases as these, where the servants
are gamekeepers and the subjects of their depredations their
masters’ game.” #8

In another case the defendant was employed to trap wild
rabbits, and it was his duty to take them, when trapped, to the
head keeper. Contrary to his duty, he from time to time
trapped rabbits and took them to another part of the land and
placed them in a bag, intending to appropriate them to his
own use. Another keeper observing this, took some of the
rabbits out of the bag during the defendant’s absence and
nicked them, in order that he might know them again, and
restored them to the bag. The defendant afterwards took
away the bag and the rabbits. It was held that the act of the
keeper in nicking the rabbits was no reduction of them into
the master’s possession so as to make the defendant guilty of
larceny.*®

If one, not qualified to kill game, kills it accidentally, he
cannot take it away without subjecting himself to a pen-
alty.5°

No absolute right of private property exists in game birds
even when they are killed at a lawful time. The ownership
is in the people of the State and a private person can have
only such an interest as the legislature dictates, and may be re-
stricted from selling them or shipping them for purposes of
sale. And the possession of an animal arising from an
illegal capture is no ground for an action against one releas-

*64 L. T. 222.
* Reg. v. Petch, 14 Cox C. C. 116.
" Molton v. Cheeseley, 1 Esp. 123.

“ Amer. Expr. Co. v. People, 133 Ill. 649. And see Garcia v. Gunn,
119 Cal. 315.

PROPERTY IN GAME. 15

ing the animal, though without legal authority. But the bur-
den is on the defendant to show that the capture was illegal.5?

The general subject of game laws will be treated of in an-
other part of this work.®*

7. The Increase of Wild Animals.—It has been already said
that a qualified property may exist in animals ratione im-
potentie, on account of their own inability.°* “As when
hawks, herons or other birds build in my trees or conies or
other creatures make their nests or burrows in my land and
have young ones there, I have a qualified property in those
young ones till such time as they can fly or run away, and then
my property expires; but till then, it is in some cases tres-
pass, and in others felony, for a stranger to take them away.
For here, as the owner of the land has it in his power to do
what he pleases with them, the law therefore vests a property
in him of the young ones, in the same manner as it does of the
old ones if reclaimed and confined ; for these cannot through
weakness, any more than the others through restraint, use
their natural liberty and forsake him.” **

Larceny may be committed of the young of those animals
that are reclaimed and serve for food, but of the young of
those animals that are still untamed, though in a park, and
though the owner has in them the kind of property we have
spoken of, propter impotentiam, larceny cannot be committed—
as of young fawns in a park, young conies in a warren. So
of the young of wild or unmarked swans, and of those animals
esteemed base. Otherwise, of young pigeons in a dove-cote,
young fish in a net or trunk, young hawks in a nest.®®

Where the lessee of islands sued a fisherman for damages
for taking a sea-gull’s egg, it was held that a man had a pos-
sessory right to any wild bird which was on or over his land,

* James v. Wood, 82 Me. 173.

8 See Title VI, Ch. II, infra.

™ See § 1, supra.

2 BI. Com. 304. 1 Hale P. C. 510, 511.

16. WILD- ANIMALS.

and that this also applied to eggs.57 But in another case it
was held that a boy could not be charged with the larceny of
gulls’ eggs taken from near a private artificial loch, strictly
preserved and surrounded by warning notices, as there is no
property in wild birds or their eggs without specific appro-
priation.®8 Larceny cannot be committed of swans’ or
hawks’ egegs.°®

On an indictment for stealing three eggs, an acquittal was
directed on the ground that, for aught that appeared in the in-
dictment, the eggs might have been the eggs of adders, or
some other species of eggs which could not be the subject of
larceny.®° But ina later case where an indictment for stealing
a ham was sustained against an objection that there was
nothing to show that the ham was fit for food, Pollock, C. B.,
said: “I think that the case of Reg. v. Cox would not now
be considered as law.” &

8. Particular Animals Considered. Bees.—Having laid down
the general rules that govern property in wild animals, we
shall now consider their application to the cases of particular
kinds of animals. With regard to bees, Blackstone says:
“Bees also are fere nature, but, when hived and reclaimed, a
man may have a qualified property in them by the law of
nature as well as by the civil law. And to the same purpose,
not to say in the same words with the civil law, speaks Brac-
ton: Occupation, that is hiving or including them, gives
the property in bees; for though a swarm lights upon my
tree, I have no more property in them till I have hived them
than I have in the birds which make their nests thereon, and
therefore if another hives them, he shall be their proprietor;
but a swarm which fly from and out of my hive are mine so
long as I can keep them in sight and have power to pursue

* County court case cited in 22 Ir. L. T. 438.

* County court case cited in 1 Scots L. T. 6.

“2 East P. C. 607; 1 Hale P.C. 511. Reg. v. Cox, Car. & Kir. 404.
“ Reg. v. Gallears, 3 New Sess. Cas. 704.

BEES. 17

them; and in these circumstances no one else is entitled to
take them.” ©? He then speaks of the theory that ownership
in bees is ratione soli, referred to in § 4, supra. So in the
civil law, if a swarm of bees had flown from A.’s hive they
were reputed his so long as they remained in sight and might
easily be pursued, but they do not become private property
until they are actually hived.®

If a person finds a tree containing a hive on another’s land
and marks it with his initials, he does not reclaim the bees and
vest the exclusive property in himself, especially as against
one of the heirs, nor does he acquire the right to bring an
action of trespass for cutting down the tree and carrying
away the bees and honey.** Nor is the interest of one who
finds bees on the land of another and hives them, but is not
the owner of the hive, the subject of larceny. And al-
though one who discovers bees obtains a license from the
owner of the soil to take them and mark the tree with his own
initials, he gains no property till he takes possession, nor can
he maintain trespass against a third person who takes pos-
session of them on a subsequent license from the owner of
the soil. The two licensees stand on an equal footing and he
who first takes possession becomes the owner.®* But one
~ who has obtained a tacit consent from the owner of the soil
to cut down the tree and get the honey has, while in the act
of cutting down the tree, a superior right over a third person
to whom the owner has given subsequent consent, but with-
out revoking the former’s authority. ‘These parties stand,
as between themselves and as respects the legal principles ap-
plicable to the case, in precisely the same position as though

?2 Bl. Com. 392. See also Idol v. Jones, 2 Dev. L. (N. C.) 162; 40
L. R. A. 687 n.

* Justin. Inst. 2, 1, 14, cited in 2 Kent Com. 349.

* Gillet v. Mason, 7 Johns (N. Y.) 16. And see Merrils v. Goodwin,
1 Root (Conn.) 209; Fisher v. Steward, Smith (N. H.) 60.

® State v. Repp, 104 Ia. 305.

° Ferguson v. Miller, 1 Cow. (N. Y.) 243. And see the comments on
this case in Goff v. Kilts, quoted infra.

2

18 WILD ANIMALS.

neither had any authority from the owner of the tree, and
both were trespassers upon his rights, or as though there was
no individual owner of the tree. How then would the case
stand? No principle is better settled than that a person in
possession of property can maintain trespass against anyone
that interferes with such possession who cannot show a better
right or title.” ®7

In a Rhode Island case it was held that trover for the value
of bees and honey will not lie against a stranger who appro-
priated a hive in a box placed by the plaintiff on another’s
land.68 The following comments have been made on this
case: “While the rights to animals fere nature as between
the owner of the soil and others have been fairly settled by a
considerable series of cases, the relative rights of parties, both
of whom acknowledge the superior right of the owner of the
soil, seem never to have been precisely described. In a re-
cent Rhode Island case . . . the plaintiff without permission
placed a hive upon the land of a third person. The defend-
ant, also a trespasser, removed the bees and honey which had
collected in the hive. The court find no cause of action,
holding that neither title nor right to possession is shown
either to the bees or to the honey. The discussion, especially
in a case where the precise point is clearly new, is unfortu-
nately general and largely irrelevant. . . . It scarcely need
follow [1. e., from Blades v. Higgs, cited in § 6, supra] that a
trespasser cannot maintain on the basis of mere possession an
action against a later trespasser. There may have been a
possible doubt as to plaintiff’s having reduced the animals to
possession by collecting them in his hive, but in the preced-
ing cases that would seem to give him actual physical pos-
session enough for this action. About the honey there would
seem to be even less doubt; but, strange to say, neither in
this case nor elsewhere does the question seem to have been
discussed—how far the jaw about animals fere nature applies

* Adams v. Burton, 43 Vt. 36. “ Rexroth v. Coon, 15 R. I. 35.

BLES. 19

to their produce as eggs or honey. The reason on which
the law about animals is founded is wholly inapplicable to the
honey, but this case tacitly assumes that no distinction is to
be drawn.” ®
If bees have been reclaimed and hived they remain prop-
erty, notwithstanding a temporary escape, the owner keep-
ing them in sight and marking the tree into which they en-
tered, and, if he can identify them, they belong to him, not
to the owner of the soil. The property draws after it posses-
sion sufficient to enable the owner of the bees. to maintain
trespass against a third person who cuts down the tree, de-
stroys the bees, and takes the honey, though such owner him-
self is liable to trespass for entering on the land of another.
“It is said the owner of the soil is entitled to the treé, and all
within it. This may be true so far as respects an unteclaimed
swarm. ... But if animals fere nature that have been re- |
claimed, and a qualified property obtained in them, escape into
the private grounds of another in a way that does not restore
them to their natural condition, a different rule obviously
applies. They are then not exposed to become the prop-
erty of the first occupant. The right of the owner continues,
and though he cannot pursue and take them without, being
liable for a trespass, still this difficulty should not operate as
an abandonment of the animals to their former liberty, . . .
This case is distinguishable from the cases of Gillet v. Mason.
and Ferguson v. Miller [cited supra]... . The first
presented a question between the finder and a person inter-
ested in the soil, the other between two persons, each claim-
ing as the first finder. The plaintiff in the last case, though
the first finder, had not acquired a qualified property in the
owner according to the Jaw of prior occupancy.” The de-
fendarit had. Besides, the swarm being unreclaimed from
their natural liberty while in the tree, belonged to the owner
of the soil ratione soli.” 7°

“5 Harv. L. Rev. 404. ” Goff v. Kilts, 15 Wend. (N. Y.) 550.

20 WILD ANIMALS.

But it was held in a Scotch case that reclaimed bees re-
main the property of the owner only so long as he is pursuing
them where he is entitled to go and that, if they come upon
another person’s land, that person is entitled to prevent pur-
suit on his land and becomes the owner of the bees if he hives
them.”

Bees in the possession of the owner are the subjects of
larceny.72, And so is honey whether made by wild or re-
claimed bees.” Otherwise of wild bees that have not been
hived, though they are confined in the tree by the owner of
the land." And it does not slander a person to charge him
with having stolen a “bee tree,” that phrase having reference
to the wild, unreclaimed insect and a standing tree, neither
of which is the subject of larceny.*® But where the defend-
ant said “Thou hast stole our bees and thou art a thief,” it
was held that the latter words showed that the stealing was
of bees of which felony may be committed, and were, there-
fore, actionable.*®

9. Pigeons, Doves, Pheasants, Partridges, Swans.—Larceny
cannot be committed of old pigeons out of the house; other-
wise of young pigeons in a nest, or of old ones confined.”*
Where they are kept in an ordinary dove-cote, having liberty
of ingress and egress at all times by means of holes at the
top, they are the subjects of larceny.*8 But in a later case it
was said: “There has been considerable doubt upon the ques-
tion whether a pigeon living in a dove-cote when flying about

" Harris v. Elder, 57 J. P. 553.

“2 East P. C. 16, § 41; State v. Murphy, 8 Blackf. (Ind.) 408.

As to the interest of one who finds bees on another’s land, see State v.
Repp, 104 Ia. 305, cited supra.

** Harvey v. Com., 23 Gratt. (Va.) 941.

* Wallis v. Mease, 3 Binn. (Pa.) 546.

* Cock v. Weatherby, 5 Smedes & M. (Miss.) 333.

* Tibbs v. Smith, T. Raym. 33.

™ 2 East P. C. 607; 1 Curw. Hawk. 149.

* Reg. uv. Cheafor, 2 Den. C. C. 361.

PIGEONS, DOVES, PHEASANTS, ETC. 21

is property and the subject of larceny, and the decision in
Reg. v. Cheafor, . . . is that it is larceny to steal pigeons if
reclaimed, although unconfined. It was not so clear on prior
authority and the matter may still be arguable, though the
better opinion of the judges in Dewell v. Sanders, Cro. Jac.
490, 492, was that there was no property in such pigeons.” 7°

It has been said that “doves in a dove-house descend to-
gether with the house to the heir, but the young ones that
are not able to fly out belong to the executor; however, it
seems that this rule could hardly apply to boxes merely hung
on the outside of another building. Probably such of the
doves as would descend to the heir would not be considered
the subject of larceny, upon the same principle that the steal-
ing of charters and even the box that contained them was no
larceny at common law.” 8° As illustrating what is here said
about the boxes, it has been held that if pigeons are so far
tame that they come home every night to roost in wooden
boxes hung on the outside of their owner’s house, and one
steals them out of the boxes, this is larceny.*?

It has been held that doves are not the subjects of larceny
unless in the owner’s actual custody—e. g., in a dove-house
or when in the nest before they are able to fly. ‘The reason
of this principle is that it is difficult to distinguish them from
other fowl of the same species. They often take a flight and
mix in large flocks with the doves of other persons and are
free tenants of the air except when, impelled by hunger or
habit, or the production or preservation of their young, they
seek the shelter prepared for them by the owner. Perhaps
when feeding on the grounds of the proprietor or resting on
his barn or other buildings, if killed by a stranger, the owner
may have trespass, and if the purpose be to consume them
as food and they are killed or caught or carried away from
the enclosure of the owner, the act would be larceny. But

® Taylor v. Newman, 4 B. & S. 89, per Blackburn, J.
* Bac. Abr., “Executor,” H. 3. * Rex v. Brooks, 4 C. & P. 131.

22 WILD ANIMALS.

in this case there is no evidence of the situation they were in
when killed, whether on the flight a mile from the grounds
of the owner, or mingled with the doves of other persons, en-
joying their natural liberty. Without such evidence the act
of killing them, though for the purpose of using them as food,
is not felonious.” ®?

There can be little doubt, however, that a civil action would
lie in all these cases, as the birds remain property by reason
of the animus revertendi which Blackstone considers a charac-
teristic of “my pigeons, that are flying at a distance from their
home (especially of the carrier kind).” 8° It has been held,
accordingly, that the owner of carrier pigeons does not aban-
don his reclamation of them by taking them for purposes of
training to a distance from home and letting them fly, and
that one who shoots such a pigeon in its flight is liable for its
value.84 The Law Times thus criticises this case: “The de-
cision seems to involve considerations of even greater import
than the ‘mere protection of pigeons, viz.: the relative rights
and liabilities of land-owners and pigeon fanciers. . . . The
learned judge found as a fact that the pigeon had animum
revertendi and that the fancier had done no act to determine
the reclamation. And here, we think, a somewhat danger-
ous principle is admitted. A pigeon is prima facie fere
nature till reclaimed. The period within which the reclama-
tion continues is evidenced by certain acts on the part of the
proprietor, confinement in a dove-cote, with liberty to fly
within a reasonable distance therefrom, being the chief. The
rights of the neighboring—or, as it may be, as in this case, the
distant—owners of land are equally well ascertained. Cujus
est solum, ejus est usque ad celum; and fere nature being no
man’s property and coming on to land of another may be re-
duced into possession by shooting or otherwise. The whole
question depends therefore on the legal construction to be

® Com. v. Chace, 9 Pick. (Mass.) 15. 2 Bl. Com. 302.

* County court case reported in 71 L. T. 65. See the opinion in this
case for a review of the authorities.

PIGEONS, DOVES, PHEASANTS, ETC. 23

attached to the apparent act of abandonment of the plaintiff.
It may be unsportsmanlike for a land-owner to shoot a pigeon
under such circumstances, but the question is, is such a shoot-
ing in contravention of the law? The question may be of
vital importance to pigeon fanciers, but it is of still more
moment to owners of land, whose rights seem to depend on
a very slender thread if this ruling, 7. e., that the owner of the
land is liable, is correct.” ®°

Pheasants that have been reared under hens and have never
become wild are the subjects of larceny.2® And so are young
pheasants hatched by a hen and under her care in a coop in
a field at a distance from the dwelling-house.** So, also, par-
tridges about three weeks old and able to fly a little, which
had been hatched and reared by a common hen, placed under
a coop, and, after its removal, remaining with the hen as her
brood, though allowed to wander.*8

“Of wild swans, nor of their young, larceny cannot be com-
mitted, but if they be made tame and domestic, or if they be
marked or pinioned, it is felony to take them or their young.
But it seems that if they be marked, and vet flying swans that
range abroad out of the precincts or royalty of the owner, it
is not felony to kill and take them, because they cannot be
known to belong to any.” 8° Blackstone says that it is felony
to steal them, if lawfully marked, though at large in a public
river; and likewise, though they are unmarked, if in a private
river or pond; otherwise it is only a trespass.°°

10. Whales, Seals—The rule laid down in the English and
Scotch cases is that where a whale is struck and afterwards
gets loose, it continues the property of the first striker who

"71 L. T. 65. * Reg. v. Head, 1 F. & F. 350

But they are, nevertheless, game, and one who deals in them without
a license is subject to a penalty: Harnett v. Miles, 48 J. P. 455.

* Reg. uv. Cory, 10 Cox C. C. 23. S. P. Reg. v. Garnham, 1 id. 451.

* Reg. v. Shickle, L. R. 1 C. C. 158. 1 Hale P. C. 511.

4 Bl. Com. 235. See also §§ 4, 5, supra, as to swans.

24 WILD ANIMALS.

continues fast till it is killed. So where it appeared that the
whale, when struck by the harpoon of the appellants’ ship,
had got free from the respondent’s harpoon, though it re-
mained sticking in her, she was held to belong to the appel-
lants..2 And, in general, if the first harpoon or line breaks
or the line attached to the harpoon is not in the power of the
striker, the fish is a loose fish and will become the property
of any other person who strikes and obtains it.°” But it was
held a more reasonable usage than this, that a fish is to be
considered a fast fish which is attached by any means (such
as the entanglement of the line round it, etc.) to the boat of
the first striker, though the harpoon does not continue in the
whale’s body.**

In a United States case where a crew struck a whale with
a harpoon which with the line remained fast to the whale but
not to the boat, and another crew continued the pursuit and
captured the whale, it was held that a usage that the whale
should belong to the first crew was valid. “It is not disputed
that the whalemen of this State [7. ¢., Massachusetts], who
have for many years past formed, I suppose, a very large pro-
portion of all those who follow this dangerous trade in the
Arctic seas, and perhaps all other Americans, have for a very
long time recognized a custom by which the iron holds the
whale, as they express it. The converse of the proposition
is that a whale found adrift though with an iron in it belongs
to the finder, if it can be cut in before demand made. The
usage of the English and Scotch whalemen in the Northern
fishery, as shown by the cases, is that the iron holds the whale
only while the line remains fast to the boat; and the result is
that every loose whale, dead or alive, belongs to the finder

* Addison v. Row, 3 Paton App. Cas. (Sc.) 334. And see Aberdeen
Arctic Co. v. Sutter, 4 MacQueen (Sc.) 355.

” Littledale v. Scaith, 3 Taunt. 243 n—this custom being that of the
Greenland fishery. But, by the custom in the Gallipagos Islands, he who
strikes a whale with a loose harpoon is entitled to receive half the produce
from him who kills it: Fennings v. Granville, 1 Taunt. 241.

"“ Hogarth v. Jackson, 2 C. & P. 595.

WHALES, SEALS. 25

or taker, if there be but one such. . . . If it were proved that
one vessel had become fully possessed of a whale and had
afterwards lost or left it with a reasonable hope of recovery, it
would seem unreasonable that the finder should acquire the
title merely because he is:able to cut in the animal before it
is reclaimed. And, on the other hand, it would be difficult
to admit that the mere presence of an iron should be full evi-
dence of property, no matter when or under what circum-
stances it may have been affixed. But the usage being di-
visible in its nature, it seems to me that, so far as it relates to
the conduct of the men of different vessels in actual pursuit
of a whale, and prescribes that he who first strikes it so
effectually that the iron remains fast should have the better
right, the pursuit still continuing, it is reasonable, though
merely conventional, and ought to be upheld.” *

In Ghen v. Rich ® it is said: “It is by no means clear that
without regard to usage the common law would not reach
the same results. That seems to be the effect of the decisions
in Taber v. Jenny °* and Bartlett v. Budd.®’ If the fisherman
does all that is possible to do to make the animal his own, that
would seem to be sufficient.”

The cases referred to hold that if a whale is killed, anchored
and left with marks of appropriation, it is by law and custom
the property of the captors even if it should drift to another
place.

In Ghen @. Rich, supra, it was shown that the whales when
shot with bomb-lances sink at once to the bottom and rise in
from one to three days, the finder claiming salvage. It was
held that a custom that each boat’s crew had its peculiar mark
or device on its lances, by which it could be known who had
killed the whale and was thus its owner—was a reasonable
and valid one. It was also held that the measure of damages
for the conversion was the market value of the oil obtained

“ Swift v. Gifford, 2 Low (U. S.), 110.
*8 Fed. Rep. 159. 1 Sprague (U. S.) 315.
* 1 Low (U. S.) 223.

26 WILD ANIMALS.

from the whale, less the cost of trying it out and preparing
it for market, with interest from the date of the conversion.
And this is also the rule in Bourne v. Ashley ** and Bartlett
v. Budd, supra. In Taber v. Jenny, supra, the cost of cutting
up and boiling down the whale, etc., was not allowed to be
deducted.

A custom in Shetland that the owners of lands on which
whales were driven should share in the proceeds with the cap-
tors was held in a Scotch case not to be just or reasonable, and
was therefore denied judicial sanction.%®

With regard to seals, the most important decision is that
of the Behring Sea Arbitration. The result of this arbitra-
tion has thus been summed up: “The decision of the arbitra-
tors practically adopts the rules of the English common law
as to the ownership of wild animals by individuals and makes
them part of international law as regards such ownership by
nations. Since no wild animals at all similar to the fur-seal
ever figured before in an international dispute, it became
necessary for our government, in the absence of precedents
of this character, to turn to the common law for some prin-
ciple which would sustain our claim to ownership in the seal
herds. Accordingly it was argued in our behalf that seals in
international law were analogous to such animals as bees or
carrier pigeons at the common law, which, as Blackstone said,
continued to be the property of their custodian even when
flying at a great distance from home, because of their having
a fixed intention to return (animus revertendi). On the other
hand, it was asserted in behalf of Great Britain by Sir Charles.
Russell, that this animus revertendi only conferred the right
of property in wild animals at the common law when it was
induced by artificial means, such as taming them or offering
them food. Hence, he argued, it involved a confusion of
ideas to claim that the seals were American property because
they migrated at certain periods to a particular place. since

*® 1 Low (U. S.) 27. " Bruce v. Smith, 17 Rettie (Sc. Ct. Sess.) 1000..

bo
1

WHALES, SEALS.

they were led to do this not by artificial, but by natural causes.
As they resembled in this respect many other wild animals,
there was no reason, he contended, why the same rule of law
should not apply to them, and according to that rule of law
such animals remain the property of the owner so long as they
continue on hisdomain. The arbitrators appear to have been
convinced by this reasoning, since they have decided that the
United States has no right of property in the fur-seals when
they are found outside of our territorial waters. The rules
and distinctions of the common law on this subject have thus
been transplanted into the domain of international law, and
the decision of the arbitrators supports the further inference
that there is no such thing in international law as a national
right of property in a herd or body of wild animals as a whole,
apart from the ordinary right of property in each individual
animal inherent in its custodian during the time that his pos-
session of it lasts. The decision of the arbitrators estab-
lishes the further proposition of international law that beyond
the limits at which its property right in a wild animal ceases,
a nation has no authority to enforce any measures for its pro-
tection, even though such measures are necessary to preserve
the species. . . . If the right of national protection to wild
animals and other marine products does not extend for any
purpose beyond a nation’s territorial waters, then it follows
that all the fishery legislation of the world, so far as it relates
in any degree to fisheries which are more than three miles
from land, is, as regards nations not parties to such legisla-
tion, illegal and void.” 1°°

In a Newfoundland case it was held that where the crews
of vessels, distributing themselves over large areas of the ice-
fields, indiscriminately slaughter seals as they go, leaving
them around, taking no heed to collect or mark or pan them,
no right of property is acquired in the seals. The Chief Jus-
tice said: “TI hold that the killing must be accompanied by

° Russell Duane, Esq., in 32 Am. Law Reg. got.

28 WILD ANIMALS.

possession, and that when the next comer finds the body of
a seal or the bodies of seals on the ice without any accom,
panying indicia of property, the man who claims as of right
against him must be in a position then and there to assert his
right of property, to point to the specific seals as his own or
those of his fellows, and to exercise corporal control over
them, unless he is resisted by force or deterred by threats of
violence. Except under such circumstances I am of opinion
that the killer must be held to have left or abandoned the dead
sound seals to the next finder who shall possess himself of
them.” 1°

Where a sea lion escaped from its captor’s control on Long
Island Sound and disappeared until about two weeks after-
wards, when it was recaptured by a fisherman in the ocean
more than seventy miles from the sound, it was held that its
original captor lost his right to it, since it had regained its
liberty without having the animus revertendi, and it was
further held that the contention that there can be no return
of such an animal to its natural liberty until it has reached its
native place on the coast of California or, at least, a place (not
found on the American coast) where the physical conditions
are favorable to its existence, was untenable.1°?

11. Fish, Oysters.—The owner of a several fishery has a priv-
ileged property in the fish therein, and trespass will lie for
taking them.1°? But fish are not the subject of larceny unless
reclaimed, confined or dead and valuable for food or other-
wise. “All the books agree that if fish are confined in a tank
or otherwise so that they may be taken at the pleasure of him
who has thus appropriated them, then they are the subject of
larceny. ‘Fish confined in a net or tank are sufficiently se-

*™ Power v. Kennedy, Morris’s Newfoundland Decis. (1884-1896) 34.

See North Amer. Comml. Co. v. U..S., 171 U. S. 110, as to rental and
taxation.

Mullett 7. Bradley, 24 Misc. (N. Y.) 695. See the comments on this
case quoted in § 1, supra.

® Child v. Greenhill, 3 Cro. 553.

FISH, OYSTERS. 29

cured ; but how in a pond is a question of doubt, which seems
to admit of different answers, as the circumstances of par-
ticular cases differ’ [citing 2 Bish. Crim. L., § 685; 1 Hale
P. C. 511; Foster’s Crown Law, 366]. An English statute,
5 Geo. III, Ch. 14, made it indictable to steal fish from a
river in any enclosed park. In a case under this statute
‘where the defendant had taken fish in a river that ran through
an enclosed park, but it appeared that no means had been
taken to keep the fish within that part of the river that ran
through the park, but that they could pass down or up the
river beyond the limits of the park at their pleasure—the
judges held that this was not a case within the statute:’ Rex
v. Corrodice, 2 Russell 1199. This is sufficient for. our
case,” 204

Where the plaintiff, while engaged in fishing, cast a seine
around a shoal of mackerel, leaving a small opening which
the seine did not quite fill up and through which, in the opin-
ion of experts, the fish could not escape, and the defendant
pushed his boat through the opening and took fish, it was
held that the plaintiff's possession was not so complete as to
enable him to maintain trespass.1°° And where fish have
been caught and placed in a cove within the ebb and flow of
the tide, being confined therein by a wire fence extending
across its mouth, there is no such right of property in them
as will support an action of trespass against one who caught
them and appropriated them to his own use.1°°

With regard to fish in a pond, a learned writer says:
“Tt has been doubted whether at common law larceny can be
committed of fish ina pond. It is admitted that it may be,
if they be confined in a trunk or net; because they are then

™™ State v. Krider, 78 N. C. 481.

*® Young v. Hichens, 1 Dav. & Meriv. 592, 6 Q. B. 606.

6 Sollers v. Sollers, 77 Md. 148. And, in general, if after fish have been
taken, they are restored to their native element so that they can be re-
gained only in a similar manner to that by which they were originally
taken, the right of the property is lost: Ibid.

30 WILD ANIMALS.

restrained of their natural liberty. And it seems difficult not
to extend the application of the same reason to the case of
fish in a pond; the pond being private enclosed property and
the fish liable to be taken at any time according to the pleas-
ure of the owner. Lambert says ‘fishes in streams and rivers
are nullius bona, et occupanti conceduntur;’ but he and others
agree that it may be felony to take them in a trunk, stew or
pond: ‘for a man hath such a possession of them that by their
restraint they cannot without help use their nature and for-
sake him.’ So by Lord Coke: Larceny may be committed
of fish in a trunk or pond, because they are not at their natural
liberty, but as it were in a pound. The case of Grey and
Bartholomew [Owen, 20 Goldsb. 129] was a question be-
tween the heir and executor, which of them should have fish
out ofa pond. There it was adjudged that the heir was en-
titled to them, upon the same principle that he should have
deer inapark. Hawkins considers it as clear that the taking
fish out of a pond is felony.” 197

In an Indian case fish in irrigation tanks were held not to
be in possession.1%

Oysters, artificially planted in a bed clearly separated and
marked out for the purpose of retaining them, are property,
and one who takes them without the owner’s leave is liable
in trespass. “They have been reclaimed and are as entirely
within his possession and control as his swans or other water
fowl that may float habitually in the bay. They were dis-
tinctly designated according to usage; and besides the de-
fendants had actual information of the ownership and they
can set up no greater right to take them because found in
their native element than tame pigeons in the air or a domes-
ticated deer upon the mountain.” 199

“ 2 East P. C. 610.
* Reg. v. Revu Pothadu, Ind. L. R. 5 Madras 390, cited in “Behring
Sea Arbitration,” No. 4, p. 32.

Fleet v. Hegeman, 14 Wend. (N. Y.) 42. And see the cases cited
infra.

FISH, OYSTERS. 31

In a New Jersey case it is said: “Oysters, though usually
included in that description of animals [1. e., fere nature] do
not come within the reason or operation of the rule. The
owner has the same absolute property in them that he has in
inanimate things or in domestic animals. Like domestic ani-
mals they continue perpetually in his occupation and will not
stray from his house or person. Unlike animals fere nature
they do not require to be reclaimed and made tame by art,
industry or education ; nor to be confined in order to be within
the immediate power of the owner. If at liberty they have
neither the inclination nor the power to escape. For the
purpose of the present inquiry they are obviously more nearly
assimilated to tame animals than to wild ones, and perhaps
more nearly to inanimate objects than to animals of either
description. . . . If then the oysters interfered in any way
with the defendant’s right of fishing or with the right of navi-
gation or any other right of the public in the waters, it is not
claimed that the defendant had not a right to remove or de-
stroy them. . . . But admitting, as may be done, that the
planting of the oysters in the public waters was a clear case
of nuisance and encroachment upon the public right, it could
give the defendant no right to steal them or appropriate them
to his own use.” 11°

But it has been held in England that though oysters are so
placed in a channel as to create a public nuisance, a person
navigating is not justified in damaging such property by run-
ning his vessel negligently against them if he has room to pass
without so doing; as an individual cannot abate a nuisance
if he is not injured by it otherwise than as one of the
public.244

And the fact that the planting of oyster shells is a public
nuisance is no justification for converting the property to
one’s own use, was reasserted in a later New Jersey case. It

™ State v. Taylor, 27 N. J. L. 117, 119.
™ Mayor of Colchester v. Brooke, 7 Q. B. 339.

32 WILD ANIMALS.

was there held that where to a boat-load of oyster shells de-
posited in a river germs of oysters floating in the water
attached themselves and in about two years developed into
marketable oysters, they were the property of him who de-
posited the shells.1??

Where oysters were planted in navigable waters opposite
the defendant’s land, but the buoys marking the bed were car-
ried away and not replaced for several years, it was held that
there were not sufficient indicia of ownership and control by
the person who planted them, to maintain his qualified prop-
erty or enable him to maintain an action against the defend-
ant for taking them. “Although we consider the case of Fleet
v7. Hegeman [supra] as an authority which we are bound
to follow, still it seems to us that the court overlooked the
idea that the principle established by them, if carried out, will
in effect authorize an exclusive appropriation of public navi-
gable waters for fishing purposes; for there is no limit fixed
to the extent to which an individual can make his oyster beds
and so long as he has oysters there no other person can law-
fully plant his in the same bed; so that the result might be the
exclusive appropriation by a few individuals of all the navi-
gable waters capable of being thus appropriated. In the
case of Arnold v. Mundy [6 N. J. L. 1], which arose in a
neighboring State, the court felt the full force of this difficulty
and they held an individual could not acquire an exclusive
right to any oyster bed, even by a grant from the State; and
that the only way in which he could acquire even a temporary
enjoyment must be by a lease from the sovereign power for
a reasonable toll or rent; and that, too, as an exercise of the
jus regium for the common benefit of every individual cit-
zen.” 118

But mingling oysters with others of natural growth or
owned by other persons is not sufficient to vest property. It

™ Grace v. Willets, 50 N. J. L. arg.
™ Brinckerhoff v. Starkins, 11 Barb. (N. Y.) 248, 253.

FISH, OYSTERS. 33

is said in one case: “If oysters had previously existed in their
native state on this ground, the plaintiffs could not have de-
prived others of the right to take them by depositing others.
in the same place. . . . The defendants could not impair the
plaintiffs’ title to the oysters by depositing a few others in the
same place, knowing that the plaintiffs had at the time similar
property there and with an intent to mingle the two together
that neither could be identified, and thus enable them to ap-
propriate the property of others to their own use [citing 2
Kent Com. 365].” 144 Andina later case the same court say:
“Tt is indispensable to the existence of the right of property
in oysters thus planted, that the bed shall not interfere with
the exercise of the common right of fishing; for if the oysters
were mingled with and undistinguishable from others of nat-
ural growth in the public waters, the interest of the
person planting them would be subservient to the public
use.”? 115

In a contract not to engage in the sale of ‘fish,’ oysters.
were held to fall within that denomination.1!°

12, Cats——Blackstone says: “Among our elder ancestors,
the ancient Britons, another species of reclaimed animals, viz.,
cats, were looked upon as creatures of intrinsic value, and the
killing or stealing one was a grievous crime and subjected the
offender to a fine; especially if it belonged to the king’s house-
hold and was the custos horret regu, for which there was a very
peculiar forfeiture.” 117

But in the English common law, as has already been said,

™ Decker v. Fisher, 4 Barb. (N. Y.) 502.

45 Lowndes v. Dickerson, 34 Barb. (N. Y.) 586, 580.

ue Caswell v. Johnson, 58 Me. 164.

"72 Bl. Com. 304. The law was: “If anyone shall steal or kill a cat
being the guardian of the king’s granary, let the cat be hung up by the tip
of its tail with its head touching the floor, and let grains of wheat be
poured upon it until the extremity of its tail be covered with the wheat.”
The amount of wheat required was the measure of the forfeiture. See
the opinion in Whittingham v. Ideson, 8 Upper Can. L. Jour. 14.

3

34 WILD ANIMALS.

cats were not the subject of larceny by reason of their base

nature.!!8

They are, however, the subject of civil remedies, and ina
Canadian case it was held that where one is killed the measure
of damages is above the market value if there are circum-
stances of aggravation.1!® The question of property in cats
is there elaborately discussed. The court said, inter alia:
“Whether fer@ nature or, as other authorities consider them,
domite nature, the point to be decided is whether cats being,
as well as dogs and certain other animals, what the law terms
of a base nature by reason of their not being fit for the food
of man, are or are not the subject of property. For if they
are, there is no doubt that trespass will lie for killing them,
since damages may be recovered in that form of action for
any injury of a forcible kind done to anything whatever in
which a man has property. . . . What say the authorities on
the point? So far as I know it has never been the subject of
a judicial decision in any of the courts at Westminster. The
only sources, therefore, to which we can have recourse for
information are the text-writers of authority; and the only
one who supports the view urged for the defendant at the trial
is Mr. Chitty in his work on the Practice at Law. He there
lays it down that ‘Trespass in general lies for taking any ani-
mal or bird out of the actual possession of a person who has
secured the same; but no action lies for enticing from the
premises of the owner and afterwards killing or injuring a cat,
which is not considered of any value in law.’ He quotes no
authority for this statement, and, so far as I have been able
to ascertain, it is wholly unsupported by any [citing as au-
thorities for the proposition that civil remedies exist even
when the animal is not the subject of larceny, Bl. Com., Bac.
Abr., Toller Exrs. and the Report of the Criminal Law

118

2 East P. C. 614. So held also in one of the lower courts of Mary-
land. See 4o Cent. L. Jour. 41.

™® Whittingham v. Ideson, supra.

See Harris v. Slater, 42 Sol. Jour. 711, for an example of a partnership
in a cat and in the prizes it took.

CATS. 35

Commrs.]. .. . With this great weight of authority against
Mr. Chitty’s single dictum, I have no hesitation in giving it
as my opinion that a person may have a property in a cat and,
therefore, that an action will lie to recover damages for killing
it. There may be circumstances under which it would be
justifiable to kill a cat; but it is not justifiable to do so merely
because it is a trespasser, even though after game. These
facts alone were not sufficient, in my opinion, to justify the de-
fendant in killing it.” .

18, Miscellaneous Beasts——Deer in a park are the subject of
property, as has already been said. Deer in an enclosed
ground have consequently been held distrainable for rent.
Willes, L. C. J., said: “The reason given for this opinion in
the books why they are not distrainable is that a man can have
no valuable property in them. But the rule is plainly too
general. . . . The nature of things is now very much altered
and the reason which is given for the rule fails. Deer were
formerly kept only in forests or chases or such parks as were
parks either by grant or prescription and were considered
rather as things of pleasure than of profit; but now they are
frequently kept in enclosed grounds which are not properly
parks and are kept principally for the sake of profit and there-
fore must be considered as other cattle. . . . As to their not
being chattels but hereditaments and incident to the park, and
so not distrainable, several cases were cited: Co. Litt. 47 b.
and 7 Co. 17 b.; where it is.said that if the owner of a park die
the deer shall go to his heir and not to his executors. . . . I
do admit the rule that hereditaments or things annexed to the
freehold are not distrainable; and possibly in the case of a
park, properly so called, which must be either by grant or
prescription, the deer may in some measure be said to be in-
cident to the park; but it does not appear that this is such a
park, nay, it must be taken not to be so.” 17°

°° Davies v. Powell, Willes 46, 48.
See § 15, infra, as to inheritance in deer.

36 WILD ANIMALS.

Where the defendant killed on his own land which ad-
joined that of the plaintiffs and was unfenced, a deer, one of
the progeny of some imported by the plaintiffs and defend-
ant, and allowed to run at large upon the land, it was held
that the deer was fere nature and belonged to the defendant,
having been shot by him on his own land.*”*

A buffalo, captured when a calf and so domesticated as to
take food from its master’s hand and be easily driven, is the
subject of property; its owner is liable for its trespassing and
may recover for injuries done to it.1??

Trover will lie for musk-cats and monkeys without alleging
that they are reclaimed.’**

A coon has been held not to be the subject of larceny,
though the right of the owner would be protected by a civil
action.1*4 But this decision has been criticised.1?®

So a sable caught in a trap has been held not to be the sub-
ject of larceny on the ground that it is of too base a nature.176

But, on the other hand, an otter in a trap has been held
to be the subject of larceny.127

Ferrets, though tame and salable, have been held not to
be the subjects of larceny.1?®

A grant of land in fee by the crown and also a license to
depasture cattle on crown lands (in substance a lease) carries
with it the right to capture and appropriate all wild animals
found on such land. And where the Emigration Commision-

* Re Long Point Co. v. Anderson, 19 Ont. 487.

As to the possession of deer in a park that will justify shooting in close
season, see State v. Parker, 89 Me. 81, cited in § 120, infra.

™ Ulery v. Jones, 81 Ill. 403. See the comments on this case quoted
in § 1, supra.

*° Grymes v. Shack, Cro. Jac. 262.

™ Warren v. State, 1 C. Greene (Ia.) 106.

* See the opinion in Haywood v. State, 41 Ark. 479, quoted in § 14,
infra.

*° Norton v. Ladd, 5 N. H. 203.

™ State v. House, 65 N. C. 315. And see extracts from the opinion
in this case in § 5, supra.

8 Rex v. Searing, Russ. & Ry. C. C. 350.

MISCELLANEOUS BEASTS. 37

ers agreed with the Islands Company that wild cattle should
be treated as animals fer@ nature, in which no property could
be acquired till they were killed or taken, it was held that such
cattle (which had originally been introduced into the island
and had escaped) must be so treated, whether apart from such
agreement they were fere nature or not.!*°

The position of the dog at common law is treated of in
the next chapter.

14, Miscellaneous Birds——Though at common law singing-
birds were not the subjects of larceny, it has been held in this
country that the theft of a tamed mocking-bird is a criminal
offense. The court in this case said: “The English courts
made exceptions to the rule that reclaimed animals to be the
subjects of larceny must be fit for food. Thus the tamed
hawk was held to be the subject of larceny though unfit for
food, because it served to amuse the English gentlemen in
their fowling sports. So reclaimed honey bees were made
an exception because, though not fit for food themselves,
their honey. is. Under decisions of English and American
courts made upon the common law definition of larceny, Mr.
Bishop classes the following animals when reclaimed as the
subjects of the offense: Pigeons, doves, hares, conies, deer,
swans, wild boars, cranes, pheasants, partridges and fish suit-
able for food, including oysters. To which might be safely
added wild turkeys, geese, ducks, etc., when reclaimed. Of
those animals of which there can be no larceny, though re-
claimed, he puts down the following: Dogs, cats, bears, foxes,
apes, monkeys, polecats, ferrets, squirrels, parrots, singing-
birds, martins and coons. In the South, squirrels are in com-
mon use as food animals, and the hunters of all climates re-
gard bears as good food. Iowa is credited with the de-
cision!®® . . . that coons are unfit for food and therefore by

Falkland Islands Company v. Reg., 2 Moore P. C. C. N. S. 266.
*° Warren v. State, 1 C. Greene (Ia.), 106, cited in § 13, supra.

38 WILD ANIMALS.

the common law not the subject of larceny, when reclaimed.
Among the colored people of the South the coon when fat in
the fall and winter is regarded as a luxury, and the lowa de-
cision would not be regarded by them as sound law or good
taste. . . . Every species of personal property was not the
subject of larceny at common law. . . . The provisions of the
larceny statute of this State are very broad and comprehen-
sive. The first section defines the crime thus: ‘Larceny is
the felonious stealing, taking and carrying, riding or driving
away the personal property of another.’ This, perhaps, is not
more comprehensive than the common law idea... . The
reclaimed mocking-bird in question was no doubt personal
property. ... To hold that larceny might be committed of
the cage but not of the bird would be neither good law nor
common sense.” 191

In an article on the Report of the Royal Commissioners
on the Criminal Code, after considering the various reforms
needed, it is said: “This subject illustrates the importance and
necessity of a speedy codification of the criminal law, which
some ignorant persons still hold to be quite unnecessary.
There could then be no doubt that canaries could be the sub-
ject of theft; now we think there is little doubt they can-
not.” 182 But a tame canary bird is, of course, the subject of
property.133

Trover will lie for a parrot without saying it is reclaimed.!**
With regard to certain parrots alleged to be cruelly treated
the court said: “I do not think these birds were domestic ani-
mals within the statutes cited. I do not say that a parrot
might not become a domesticated animal when thoroughly
tamed and accustomed to the society of human beings, but
these were young, unacclimatized birds freshly imported into
England. They are clearly different from fowls and other

* Haywood v. State, 41 Ark. 479, 482. ™ See 17 Ir. L. T. 10.

*8 Manning v. Mitcherson, 69 Ga. 447. And see extracts from the opin-
ion in § 1, supra.

*4 Grymes v. Shack, Cro. Jac. 262.

MISCELLANEOUS BIRDS. 39

poultry, and the evidence goes to prove that they were not
tamed and domesticated.” 1%°

A pea-fowl in the possession of its owner is the subject of
larceny.13°

A turkey is a domestic animal, and it is not necessary that
the indictment should state it to be a tame turkey.1°7 And
in an Hawaiian case it was held that turkeys brought to the
island and afterwards allowed to go wild were not fere nature,
so as not to be the subjects of larceny, the court saying:
“These turkeys, although ‘wild,’ are not, properly speaking,
‘wild animals.’ Where the phrase ‘wild animals’ is used the
word ‘wild’ is used as a generic term to indicate that they are
of a species not usually domesticated, and does not refer to
their comparative docility or familiarity with men. We con-
sider that these turkeys are not, properly speaking, animals
fere nature, though partaking of their habits.” 1%8

The property in wild geese which have been tamed con-
tinues though they stray away, if they have not regained their
natural liberty.139 And in the civil law it is said: “Fowls and
geese are not by nature wild, for itis manifest that wild fowls
are different and wild geese are different. Therefore if my
geese and fowls being in anywise frightened, have flown away
so far that one does not know where they are, they remain
nevertheless in our ownership.” 14°

It has been held that no action lies for disturbing a rookery.
“They [rooks] clearly answer the description of birds which
are fere nature and, according to this act of parliament, are
destructive to the neighborhood where they resort. There
is no act of parliament with which we are acquainted which
gives them any protection; but, on the contrary, those

5 Swan v. Saunders, 44 L. T. N. S. 424.
*° Com. v. Beaman, 8 Gray (Mass.) 497.
*7 State v. Turner, 66 N. C. 618.
*° Rex v. Mann, cited in 23 Alb. L. Jour. 444.
*° Amory wv. Flyn, 10 Johns. (N. Y.) 102.
ae Gai. II, § 68, quoted in Salkowski’s Roman Private Law (Whitfield)
3.

40 WILD ANIMALS.

statutes to which I have alluded mention them in terms of
condemnation. That being the case, can a party claim a
right to have them come to his premises, and is he at liberty
to say that a person is a wrongdoer who protects the neigh-
borhood from the mischiefs which they are likely to produce,
by driving them away? We are of opinion that these ques-
tions must be answered in the negative. No authority has
been cited to show that a party has any right of property in
animals of this description. The authorities which have
been cited relate to animals which are perfectly innocent and
which are articles of food and stand upon a different founda-

peers

tion.” 141 F

15. Inheritance in Wild Animals.—The ancient rule appears
to have been that wild animals in an enclosure passed at the
‘death of their owner to the heir, as incident to the freehold,
and not to the executor—the reason being that without them
the inheritance would be incomplete and also that the owner
had no transmissible personal right of property in them. If
the deceased had only a term of years in the land, the animals
were said to go to the executor for use, but not for waste, as
accessory chattels, following the estate of the principal,
though it has been suggested that this would be true only if
the executor caught them before the lease expired1*2 But
in the later cases it has been held that deer in a park when re-
claimed become personal chattels and cease to be parcel of the
inheritance and consequently pass to the executors.1#% As
to doves in a dove-house see § 9, supra; and as to fish in a
pond, see § II, supra.

Wild animals, when reclaimed, being personal property,

™ Hannam v. Mockett, 4 Dowl. & Ryl. 518, 537.

™ 1 Schoul. Pers. Prop. § 97, citing 7 Co. 17 b.; Went. Off. Ex. 127,
14th ed.; Com. Dig. Biens, B., 1 Wms. Exrs. 666; Co. Litt. 53 a.

™ Ford v. Tynte, 2 Johns. & H. 150; Morgan v. Abergavenny (Earl),
8 C. B. 768. And see the opinion in Davies v. Powell, Willes 46, quoted
in § 13, supra.

INHERITANCE IN WILD ANIMALS. 41

would probably now be universally held to pass to the per-
sonal representative and not to the heir.'*+*

™ See Schoul. Pers. Prop. § 97.

That stuffed birds in cages are to be treated as movable personal chattels
and not as annexed to the freehold, see Hill (Viscount) v. Bullock,
[1897] 2 Ch. 482.

TITLE I.

PROPERTY IN ANIMALS.

CHAPTER II.

DOMESTIC ANIMALS.

Part. I. Domestic animals and 19. Taxation of domestic animals.

their increase. Branding. Part III. Property in dogs.
16. Nature of this property. 20. The dog as the subject of a
17. The increase of animals. civil action.
18. Brands as evidence of owner- 21. The dog as the subject of lar-
ship. ceny; dogs as a source of evi-
Part II. Taxation of domestic dence in criminal actions.
animals, 22. Taxation and license.

PART I. DOMESTIC ANIMALS AND THEIR INCREASE.
BRANDING.

16. Nature of this Property.—It is not necessary to define
here what is meant by “domestic animals” or “animals domite
nature” further than to repeat the words of Blackstone al-
ready quoted that they are “such animals as we generally see
tame and are therefore seldom, if ever, found wandering at
large.” 1 The meaning of the expression as used in statutes.
punishing cruelty will be treated hereafter.

The right of property in these animals is absolute, and, ex-
cept in the case of the dog, the distinction noted in the last
chapter between animals that are and are not the sub-
jects of larceny does not here exist. “Of all valuable domes-

* See § 1, supra. * See § 121, infra.

42

NATURE OF THIS PROPERTY. 43

tic animals, as horses and other beasts of draught, and of all
animals domite nature which serve for food, as neat or other
cattle, swine, poultry and the like, and of their fruit or produce
taken from them while living, as milk or wool, larceny may be
committed; and also of the flesh of such as are either domite
or fere nature, when killed.” ® So of eggs. But “there is
not known in practice and cannot be in law such a union of
interest or title or partnership in animals as that one party
shall own the carcass, the other the wool, the hair or the
feathers.” And with reference to the taking of milk, wool,
etc., it has been said that to make the act felony it must be
“done fraudulently and feloniously and not merely from wan-
tonness or frolic; which must be collected from concurrent
circumstances, such as the quantity taken, the use to which it
is applied, the behavior of the party, etc.” ®

17, The Increase of Animals.—The increase of live stock be-
longs to the owner of the dam except where it is hired; in the
latter case the offspring belongs to the usufructuary.*. The

*4Bl. Com. 235. And see Rex v. Martin, 1 Leach C. C. 171. And it
has been held that dead pigs, buried three feet below the surface, are the
subjects of larceny though there was no intention of digging them up
again or of making any use of them: Reg. v. Edwards, 13 Cox C. C. 384.

*2 East P. C. 614. ° Hasbrouck v. Bouton, 60 Barb. (N. Y.) 413.

°2 East P. C. 617.

* Hazelbaker v. Goodfellow, 64 Ill. 338; Stewart v. Ball, 33 Mo. 154;
White v. Storms, 21 Mo. App. 288; Leavitt v. Jones, 54 Vt. 423; Ark. Val.
Land & Cattle Co. v. Mann, 130 U. S. 69; Wood v. Ash, 1 Owen 130.

Paying taxes on a mare and service fees and expenses of rearing colts,
with the owner’s consent, does not give a title to the colts: Morse v. Pat-
terson, 1 Kan. App. 577.

See 47 Cent. L. Jour. 351, 371, 411, 432, 489; 48 id. 39, for a discussion
of the following question: “A., desiring six beef cattle, employed a drover
to purchase the same for him. The drover sent out his buyer to purchase
these six and also to purchase six other beef cattle for the drover himself.
The buyer purchased the twelve cattle, according to instructions, but by
mistake delivered five of them to A. and seven of them to the drover,
his employer. Before A. discovered the error, one of the seven cows de-
livered to the drover gave birth to a calf. What are the respective rights
of the drover and A. in the calf?”

44 DOMESTIC ANIMALS.

increase of the increase ad infinitum belongs to the owner of
the original stock. Where cattle are a part of a married
woman's separate estate, their increase also belongs to the es-
tate.° In the Roman law, also, the brood belongs to the
owner of the mother, and Puffendorf gives as the reason not
only the fact that the male is frequently unknown, but also
that the dam during the time of her pregnancy is almost use-
less to the owner and must be maintained with great expense
and care, so that he, being the loser by her pregnancy, ought
to be the gainer by her brood.1° But cygnets belong equally
to the owners of the cock and the hen, the reason already
given not holding here.?}

The owner of a limited estate in live stock as for life or
during widowhood, is entitled to the increase thereof during
the continuance of the estate.1? But a tenant for life with
remainder over is bound to keep up the number of the orig-
inal stock.13 And in a South Carolina case it is said: “Al-
though some of the articles may be consumable in the use and

® Tyson v. Simpson, 2 Hayw. (N. C.) 147.

° Gans v. Williams, 62 Ala. 41; Ellis v. State, 76 id. 90; Hanson v. Mil-
lett, 55 Me. 184.

2 BI. Com. 390.

“The Case of Swans, 7 Rep. 17. “And the law thereof is founded on
a reason in nature; for the cock swan is an emblem or representation of
an affectionate and true husband to his wife above all other fowls; for
the cock swan holdeth himself to one female only, and for this cause nature
hath conferred on him a gift beyond all others; that is, to die so joyfully
that he sings sweetly when he dies; upon which the poet saith:

Dulcia defecta modulatur carmina lingua,
Cantator, cygnus, funeris ipse sut, etc.

And therefore this case of the swan doth differ from the case of kine,
or other brute beasts.”

* Lewis v. Davis, 3 Mo. 133; Major v. Herndon, 78 Ky. 123; Poindexter
v. Blackburn, 36 N, C. 286; Leonard v. Owen, 93 Ga. 678.

See Flowers v. Franklin, 5 Watts (Pa.) 265, where under the terms of a
will the increase was held to go after the widow’s death to the remainder-
man, not to the personal representative.

*1 Schoul. Pers. Prop. § 142; Dunbar v. Woodcock, 10 Leigh (Va.)
628.

THE INCREASE OF ANIMALS. 45

others are wearing out by the attrition of time, yet, when
taken altogether, being reproductive, the estate must be made
to keep up its own repairs.” '* However, when the animals
are such as cannot produce young ones as a set of horses or
mules, or a single beast, the owner of the life interest is not
bound to supply the place of one dying without any fault of
his.15 Under a lease that gave the lessee the increase of a
flock, but required the flock to be grown to a certain number
which were to be delivered to the lessor at the end of the
term, it was held that a delivery of the specified number was
required and not merely a delivery of such a number as the
lessee was able to raise by the exercise of reasonable care and
prudent husbandry.1®

It has been already stated that where an animal is hired its
increase belongs to the bailee. But in the case of a gratu-
itous loan the offspring belongs to the lender and must be
returned at the determination of the loan and is not subject
to seizure under an execution against the borrower.17 And
putting a mare to pasture in consideration of her services does
not create a temporary ownership so as to entitle the bailee
to the increase: it isa naked bailment.1® But ina New York
case it was held that where there was a promise to re-deliver
the animals borrowed with their increase the hiring was for a
valuable consideration, because on general principles such in-
crease belongs to the temporary owner of the animal; and
that, therefore, the lender could not bring trespass against
one who took such animals from the possession of the bor-
rower, as the lender had not actual or constructive posses-
sion.?® It is difficult, however, to reconcile this decision with

* Patterson v. Devlin, 1 McMull Eq. (S. C.) 459.

* 1 Schoul. Pers. Prop. § 142, citing 2 Kent. Com. 353 n.; 1 Dom. Civ.
Law §§ 986-088; Horry v. Glover, 2 Hill Ch. (S. C.) 521.

*In re More’s Estate, 121 Cal. 609.

*Dillaree v. Doyle, 43 U. C. Q. B. 442. And see Orser v. Storms, 9
Cow. (N. Y.) 687.

*® Allen v. Allen, 2 P. & W. (Pa.) 166.
* Putnam v. Wyley, 8 Johns. (N. Y.) 432.

46 DOMESTIC ANIMALS.

the authorities holding that a naked bailee of animals is not
entitled to their increase.

A contract that all the colts to be foaled by mares sold by
A. to B. and kept in A.’s stables under B.’s care are to belong
to B. is valid and not void as against creditors for want of de-
livery.2° So an agreement for a valuable consideration to
deliver to plaintiff the first female colt that defendant’s mare
might produce vests a property in the colt when born, by
reason of which trover may be maintained.2*_ A mare with
foal having been sold on condition that the title was to remain
in the seller till the price was paid, the title of the colt when
foaled remains in the seller till the performance of the condi-
tion.22. And the same is true as to colts subsequently bred
from a mare.?? Where a dam is sold, reserving an unborn
foal, the latter when born may be recovered by the seller in
replevin from one who before its birth bought the dam from
the purchaser without notice of the reservation.2* And
where A. agreed with B. that his horse should go to B.’s mare
gratis provided the produce should belong to C., it was held
that the property in such produce was thereby vested in C.
and that he could recover from a purchaser from B.?° But,
in a Michigan case, where the mare was bred to the plaintiff's
stallion in shares and several months afterwards was sold to
the defendant, who knew of the breeding but not of an ar-
rangement by which the plaintiff was to have a half-interest
in the colt, it was held that the contract was executory and

* Hull v. Hull, 48 Conn. 250. And see Wolcott v. Hamilton, 61 Vt. 79.

* Fonville v. Casey, 1 Murph. (N. C.) 380.

” Allen v. Delano, 55 Me. 113.

* Elmore v. Fitzpatrick, 56 Ala. 400; Buckmaster v. Smith, 22 Vt. 203.

And see Nicholson v. Temple, 20 N. B. 248.

A deed reserving as security for the purchase money “all the crops pro-
duced and products raised or grown hereafter on said premises,” was held
not to cover the increase of stock kept on the premises: Desany v. Thorp
(Vt.), 39 Atl. Rep. 300.

* Andrews v. Cox, 42 Ark. 473.

* M’Carty v. Blevins, 5 Yerg. (Tenn.) 195. And see Maize v. Bowman,
93 Ky. 205, cited in § 106, infra.

THE INCREASE OF ANIMALS. 47

that the plaintiff acquired no title to the colt, his only remedy
being an action for breach of contract.2® The notice of the
breeding was held not sufficient to put the purchaser upon
inquiry as to any rights the owner of the stallion might have.
The court’s statement that “there was nothing in existence
which could be the subject of sale,” is however, opposed to
most of the authorities.

When animals have been sold under an execution in trover
against A. to one who does not take possession of them, the
latter cannot afterwards claim to be the owner of animals sub-
sequently bred from the others, as against B., who had pos-
session of them when trover was brought.?”

In the case of a pledge of animals, their young, subse-
quently born, are also covered by the pledge as an accessory
thereto.?®

The question how far a mortgage on animals covers their
increase will be discussed hereafter.?9

18. Brands as Evidence of Ownership—wWhere a brand is
made by statute prima facie proof of “the ownership of the
person whose brand it may be,” the ownership may be proved
to be in a person other than the one in whose name the brand
is recorded. “A brand is personal property and may be sold
and transferred as other personal property; and the law does
not prohibit proof of the true ownership of a recorded brand
where the brand has been sold and become the property of
another than the person in whose name it was recorded.” 3°
A statute authorizing an inspector to seize and condemn un-

* Bates v. Smith, 83 Mich. 347.

7 Scott v. McAlpine, 6 U. C. C. P. 302.

* Story Bailm. § 292, citing I Domat, B. 3, tit. 1 § 1, art. 7 to 10; Dig.
Lib. 20, tit. 1, 1. 13, 29; Ayliffe, Pand. B. 4, tit. 18, p. 530.

* See § 37, infra.

Chavez v. Ty., 6 N. M. 455.

Proof of the purchase may be made by parol; it is not essential that a
bill of sale should be introduced in evidence: Ledbetter v. State, 35 Tex.
Cr. 195.

48 DOMESTIC ANIMALS.

branded animals about to be sold and shipped out of the
county and to sell them and keep the proceeds for the un-
known owner, makes the brand rather than possession the
chief prima facie evidence of title and is not unconstitutional.**
Where the statute declares that only recorded brands are ad-
missible as evidence of ownership, it must be strictly complied
with. But this does not prohibit the introduction of evi-
dence of flesh-marks or other proof of ownership, including
unrecorded brands, where the object is to identify the ani-
mal.33 And the fact that the owner of a stolen animal failed
to brand it according to statute is no defence where the ani-
mal is otherwise sufficiently identified.34 Where the law re-
quires marks to be recorded, but does not state that they shall
not be evidence of ownership unless recorded, as in the case
of brands, an unrecorded mark is admissible as proof of
ownership.?®

The record of a brand is constructive notice that the animal
so branded belongs to the owner of the brand.** But the
brand on a stolen horse is not evidence to prove ownership
in one claiming as a purchaser from the original owner.’7
Evidence of the brand of the alleged owner of a stolen calf is

* Beyman v. Black, 47 Tex. 558.

“ Allen v. State, 42 Tex. 517; McKenzie v. State, 32 Tex. Cr. 568.

* Hutto v. State, 7 Tex. App. 44; Tittle v. State, 30 id. 507; Gregory v.
Munn (Tex. Civ. App.), 25 S. W. Rep. 1083; Lockwood v. State, 32 Tex.
Cr. 137; Poage v. State, 43 Tex. 454; State v. Cardelli, 19 Nev. 319;
Brooke v. Peo., 23 Colo. 375.

“The brand law does not require that the ownership of an animal must
be proved by the brand itself. Ownership may be proved by flesh marks
or any other proper evidence, in the same way as if no brand law was in
existence. Proof by brand under our statute is only an additional method
of proving ownership, and is especially applicable in the case of range
animals: ” Chavez v. Ty., supra.

“ Bazell v. State, 89 Ala. 14. And see Byrd v. State, 26 Tex. App. 374.

© Wyers v. State, 22 Tex. App. 258. And see Peo. v. Bolanger, 71 Cal.
17; State v. King, 84 N. C. 737.

“Stewart v. Hunter, 16 Oreg. 62. And see Brooks v. State (Tex.
Cr.), 31 S. W. Rep. 41o.

* Horn v. State, 30 Tex. App. 541. Cf. Chavez v. Ty., supra.

BRANDS AS EVIDENCE OF OWNERSHIP. 49

admissible where there is evidence that its mother bore such
brand, though the calf did not.®®

The presumption that animals belonging to one person
but branded in the recorded brand of another shall, as to
creditors, be deemed the property of the latter, is not con-
clusive but may be rebutted by proof.2® One who places his
brand on another's cattle and mingles them with his own has
the burden of identifying those cattle; otherwise he should be
subjected to the loss.4° If the brand is not recorded till after
the theft of the animal, it is admissible in evidence but is not
sufficient to prove ownership.*! Though the statute provides
that a person shall have but one brand for his cattle, yet if they
are removed from the county where the brand is recorded
and for any reason he has a different brand recorded in the
new county, the new brand does not invalidate the old one
nor deprive the owner of any benefit accruing from its regis-
tration.*?

A “road brand,” as distinguished from a ‘range brand,” is
one required to be placed upon cattle before they are removed
to a market outside of the State, and it must be recorded in
the county from which they are to be driven, before their re-
moval. If recorded after they are driven out, it is inadmis-
sible in evidence to prove ownership.**

The recorded brand must correspond and be identical with
the brand found on the animal, and the latter must appear on

® Black uv. State (Tex. Cr.), 41 S. W. Rep. 606; Thurmond vw. State, 37
Tex. Cr. 422.

* Rankin v. Bell, 85 Tex. 28.

* Johnson v. Hocker (Tex. Civ. App.), 39 S. W. Rep. 406.

" Crowell v. State, 24 Tex. App. 404; Unsell v. State (Tex. Cr.), 45
S. W. Rep. 1022; Turner v. State (Tex. Cr.), Ibid. 1020; Chesnut v. Peo.,
21 Colo. 512. But see Harvey v. State, 21 Tex. App. 178.

As to evidence of the date of the registration of a brand, see Dickson v.
Ty. (Ariz.) 56 Pac. Rep. 971.

“” McClure v. Sheek’s Heirs, 68 Tex. 426.

That the record of a second brand while the first remains unabandoned
is not admissible to prove ownership, see Unsell v. State, supra.

*® Crowell v. State, supra.

4

50 DOMESTIC ANIMALS.

the part of the animal indicated in the record, or the dis-
crepancy must be explained.*# The variance does not affect
the admissibility of the record in evidence but only its pro-
bative force.*® But where the record is uncertain as to the
part of the animal, as directed by the statute, it is inadmissible
in evidence. A record stating that the brand should be on
the left or right side is sufficient ;*7 or that it is on “hip, thigh
and flank.” 48

Where the brand is mistakable; a verdict of guilty of driving
the cattle from their range will not be supported.*®

When, by reason of their obscurity, a question arises as to
the brands on animals alleged to have been stolen, the testi-
mony of experts in deciphering brands is admissible to show
what they are.®°

The offence of unlawfully altering brands and marks will
be treated of in another part of this work.

PART II. TAXATION OF DOMESTIC ANIMALS.

19. Taxation of Domestic Animals—Domestic animals are
taxable like other personal property, and it is not necessary to
treat here of the general principles of the law of taxation.
Some questions as to situs have arisen, however, which con-
cern animals as such, owing to their power to roam and the
necessity of their being fed and sheltered.

The general rule that the domicile of the owner is the place
where by a legal fiction his personal property is considered
to have its situs for purposes of taxation, applies to the case

“ Myers v. State, 24 Tex. App. 334.

“ Harwell v. State, 22 Tex. App. 251.

*’ Massey v. State (Tex.), 19 S. W. Rep. 908.

* Hayes v. State, 30 Tex. App. 404.

“Thompson v. State, 25 Tex. App. 161. And see McGrew v. State, 31
Tex. Cr. 336.

“Yoakum v. State, 21 Tex. App. 260.

*° Askew v. Peo., 23 Colo. 446.

* See § 60, infra.

TAXATION OF DOMESTIC ANIMALS. 51

of animals.®? So one who winters or pastures temporarily his
cattle in another township or county than that in which he
resides should have them assessed in the latter township or
county though they happen to be in the former at the time of
the year when personal property is assessed.5®> This depends,
however, in some of the States, on whether the home of the
owner is also the home of the cattle, as personal property is
made by statute taxable where it is situated. Where the
owners of a herd of cattle resided in a certain county and had
there a ranch with house, stable and corrals, which their herd-
ers made their headquarters and from which they started out
on the round-ups, and near which some of the stock ranged,
and where some of the young cattle were branded, and this
ranch was separated from an Indian reservation only by a
fordable stream, this was held to be the home of the cattle,
though the greater part of them roamed on the reservation,
upon which the owners had no station house or corrals.54

But where cattle are bred, born, branded and raised in a
certain county, that is their home though they occasionally
wander or are driven into other counties and though the
home ranch of the owner from which they are managed and
controlled is in another county.®> The court distinguished
Barnes v. Woodbury, supra, saying of it: “That [7. e., Eureka
County] was their home and if they were found in White Pine
County it was only because, in the search for food, they had
temporarily wandered away from that home. . . . Here the

“tt Desty Taxation, 322.

Where cattle are sold under an unrecorded bill of sale, but not delivered,
the seller is liable for taxes regularly assessed against him before delivery:
Edwards wv. Irvin (Tex. Civ. App.), 45 S. W. Rep. 1026.

* Rhyno v. Madison Co., 43 Ia. 632; Smith v. Mason, 48 Kan. 586 (dis-
tinguishing Graham v. Chautauqua Co. Commrs., 31 id. 473); Barnes
v. Woodbury, 17 Nev. 383; Ford v. McGregor, 20 id. 446; Peo. v.
Caldwell, 142 Ill. 434; Knapp v. Charles Mix Co., 7 S. D. 399. But see
State v. Falkinburge, 15 N. J. L. 320.

“Holcomb v. Keliher, 5 S. D. 438, following Barnes v. Woodbury,
supra; State v. Shaw, infra.

* State v. Shaw, 21 Nev. 222.

52 DOMESTIC ANIMALS.

evidence shows that the great bulk of the cattle have never
been within Eureka County, and in no sense of the word did
they belong there. Their home, their habitat, the place where
they belonged and where one would expect to find them was
in Nye County. The usual meaning of the words ‘home
ranch,’ as used in the range country, is that it is the headquar-
ters of the range. It is the place from which the riders start
upon their rounds to rodeo and brand the stock, and to which
they return when through; for the time being it is their home.
But this does not necessarily make it the home of the cattle.
If gathered and herded and cared for there regularly each
year, it would doubtless become such; and it was in connec-
tion with these circumstances that this home ranch was held
to cut some figure in Barnes v. Woodbury. . . . We do not
understand this situs to be determined by the residence of the
owner, nor by the fact that he does or does not own real estate
in one county or the other, although, under some circum-
stances, these facts may have an important bearing upon the
question of where they belong and tend to its elucidation.”
And in Oklahoma it was held that where it was shown that
cattle owned in another State or Territory actually ranged
and grazed in a certain county during the entire year, such
cattle were properly taxable in that county, even if this might
result in double taxation.°®

But a statute providing that personal property shall be
taxed where it is situated is not intended to impose impossi-
bilities or work injustice, and where one whose pasture lies
partly in the county of his residence and partly in an adjoin-
ing county, so that it is difficult to tell at any given time just
where the cattle are, pays taxes in the former county on the
cattle feeding in the latter, he complies substantially with the
statute.57

A statute requiring that stock on a farm where the owner
does not reside shall be assessed there, does not apply where

** Prairie Cattle Co. v. Williamson, 5 Okla. 488.
* Court v. O’Connor, 65 Tex. 334.

TAXATION OF DOMESTIC ANIMALS. 53

the farm lies in several districts or two counties, in one. of
which the owner resides, and the stock passes from one part of
it to another. ‘‘A farm is, both by the standards and in com-
mon acceptation, defined to be a body of land, usually under
one ownership, devoted to agriculture, either to the raising
of crops or pasture or both. It is not understood to have any
necessary relation to, or to be circumscribed by, political or
congressional subdivisions. A ‘farm’ may consist of any
number of acres, of one quarter section or less, or many quar-
ter sections, of one field or many fields, may lie in one town-
ship and county or in more than one.” *8

But in Massachusetts, under a statute providing that
“horses kept throughout the year in places other than those
where the owners reside . . . shall be assessed to the owners
in the places where they are kept,” it was held that horses
housed, fed and watered in a barn upon a farm partly in each
of two towns were taxable in the town where the barn was
situated, though the residence of the owner was on the same
farm but in the other town, and the horses were used for all
the farm work and there was no other barn upon the farm.
“A horse is kept where he is habitually housed, fed and
watered, where he lives and has his home, provided there is
any such place. The fact of using him more or less across
the boundary line of the town does not alter the fact that the
place where he is kept is the barn where he lives.” ?

A Territorial legislature may impose a tax on cattle belong-
ing to others than Indians, which are grazing on an Indian
reservation within the Territory, pursuant to a lease for that
purpose made by the Indians with the approval of the Federal
authorities.®°

In Colorado where cattle are assessable on May 1, it was
held that the resident owners of cattle and horses purchased
outside of the State and driven into the State for the purpose

*® Peo. zw. Caldwell, 142 Ill. 434.
® Pierce v. Eddy, 152 Mass. 594.
° Wagoner v. Evans, 170 U. S. 588.

54 DOMESTIC ANIMALS.

of pasture in October and remaining there till January, were
not liable for the taxes of that year.®

In Washington it was held that an act providing that live
stock driven into the State for the purpose of grazing after
the first Monday in April in any year should be assessed for
taxes as if it had been in the county at the time of the annual
assessment, was not unconstitutional as discriminating be-
tween live stock and other property.** And in Wyoming a
law regulating the assessment of live stock on the open range
was held not unconstitutional as an arbitrary and unreason-
able attempt to create two classes of live stock for purposes
of taxation.®?

Under the Texas statutes a corporation having pasture land
in each of two counties is to be taxed for its cattle in each
county in the proportion which the land in that county bears
to the whole pasture, though the management is located only
in one county and taxes on all the cattle have been paid
there.6* Where cattle were owned and kept in one county,
but moved to another and pastured upon lands leased for that
purpose from November 2, 1893, till about April 1, 1894,
with the owner’s intention at the time they were moved of
keeping them in the second county until the expiration of the
lease, on May 1, 1894, unless the pasturage should before that
time become sufficient in the first county, they were held to
be situated in the second county on January 1, 1894, and there
subject to taxation for the year 1894.°° Where cattle are
in an unorganized county the assessment must be made and
the taxes collected in the county to which it is attached for
judicial purposes.86 Where a statute provided that the
county inspector of hides and animals should inspect all ani-

“Pueblo Co. Commrs. v. Wilson, 15 Colo. 90. Cf. Hardesty v. Fleming,
57 Tex. 305; Clampitt v. Johnson (Tex. Civ. App.), 42 S. W. Rep. 866.

? Wright v. Stinson, 16 Wash. 368.

® Standard Cattle Co. v. Baird (Wyo.), 56 Pac. Rep. 598.

“ Nolan v. San Antonio Ranch Co., 81 Tex. 315.

© Clampitt v. Johnson. supra, citing Hardesty v. Fleming, supra.

® Llano Cattle Co. 7. Faught. 69 Tex. 402.

TAXATION OF DOMESTIC ANIMALS. 55

mals known and reported to him as sold for slaughter, and
another statute provided that persons removing cattle from
one county to another should be protected from the payment
of inspection fees in the latter county by the inspection cer-
tificate from the former, it was held that one who bought for
slaughter cattle that had been brought from another county
was not exempt from the tax under the former statute, al-
though the cattle were accompanied by the certificate of in-
spection provided by the latter one.** Where cattle were
shipped into the State under a bill of lading which allowed
their being fed there for an indefinite time and then being
shipped to a point in another State at a through rate from the
original point of shipment, the balance of the freight not to
be paid unless they were so re-shipped, it was held that they
were taxable in the State while being fattened there at the
owner’s pens.®®

In California the assessor of taxes must demand a state-
ment from the owner of migratory cattle whether the stock
will be removed from the county during the year; and unless
such a demand is made, the duty of making the statement is
not imposed upon the owner.°® Whether persons who drive
flocks of sheep across a county do it to pasture and graze
them there, so as to charge them under an ordinance licensing
persons engaged in the business of grazing sheep, is a ques-
tion of fact in each particular case.”°

A horse and wagon, owned by a non-resident of the State
and used in mercantile business, are not taxable at the place

* Limburger v. Barker (Tex. Civ. App.), 43 S. W. Rep. 616.

* Waggoner v. Whaley (Tex. Civ. App.), 50 S. W. Rep. 153.

* Peo. v. Shippee, 53 Cal. 675.

And, in Utah, the certificate of assessment in one county, upon delivery,
exempts from further taxation for that year in another county: Taylor
v. Robertson, 16 Utah 330.

“Inyo County v. Erro, 119 Cal. 119, citing El Dorado County v. Meiss,
100 id. 268, where one who took sheep temporarily into the county, for
the purpose of shearing them, without procuring a license, was held not
to be violating the ordinance.

56 DOMESTIC ANIMALS.

of business, except under a special statute."! So, a travelling
circus and menagerie, owned by a non-resident and brought
in to be exhibited at different places through the State and
other States, is not taxable in the first State."

One who purchases and slaughters hogs, to convert them
into’ bacon, lard and cured meats, is liable to taxation as a
“manufacturer.” 7% But a corporation whose principal busi-
ness was purchasing sheep and lambs, slaughtering them,
pulling wool from the hides, converting the offal into fer-
tilizer, reducing the carcasses to a temperature that would
retard decomposition and shipping them to places of delivery
in refrigerator cars, was held not to be “carrying on manu-
facture,” within the meaning of a statute relating to the taxa-
tion of corporations.”4

A statute providing that non-residents keeping and herd-
ing animals for grazing purposes shall pay a specified sum for
each animal, in lieu of all taxes upon them such as are paid
by resident owners, infringes a constitutional requirement of
uniform taxation upon the same class of subjects."® Where
dealers in cattle held them but a day before exporting or sell-
ing them, it was held that the average weekly shipment con-
stituted their taxable stock in trade and that the cattle ex-
ported were not “exports” within the meaning of the constitu-
tional provision against laying taxes on exports.7* But,
under a statute providing for the taxation of live stock
brought within the State to be grazed, it was held that an in-

= Shaw v. Hartford, 56 Conn. 351.

” Robinson v. Longley, 18 Nev. 71.

“Engle v. Sohn, 41 O. St. 691, commenting on Jackson v. State, 15
O. 652. See also Com. v. Hiller, 1 Dauph. Co. Rep. (Pa.) 188.

™ Peo. v. Roberts, 155 N. Y. 408.

™ Kiowa County v. Dunn, 21 Colo. 18s.

® Myers v. Baltimore €o. Commrs., 83 Md. 38s.

As to the admission of animals free of duty under the tariff acts, see
Morrill v. Jones, 106 U. S. 466; U. S. v. Cloete, 52 U. S. App. 265; U. S.
v. Magnon, 35 id. 828; Reiche v. Smythe, 13 Wall. (U. S.) 162; Sandow
v. U. S., 84 Fed. Rep. 146; Beck v. U. S., Ibid. 150; U. S. v, Eleven
Horses, 30 id. 916.

TAXATION OF DOMESTIC ANIMALS. 57

tent that such stock should remain in the State permanently
was not necessary, and that, where they were driven slowly
through the State with the intention of shipping them into
another State, such exportation did not begin, so as to exempt
them from taxation, until they were started on their final jour-
ney from the State by rail.77

The subject of a license tax on dogs is discussed in § 22,
infra.

PART III. PROPERTY IN DOGS.

20. The Dog as the Subject of a Civil Action—It might be said
with much truth that a man’s two best friends, his wife and
his dog, were singularly disregarded by the common. law.
The various disqualifications to which the former was sub-
jected do not concern us here. With reference to the most
intelligent and affectionate of animals, the theory of the law
was that property in such animals was of an inferior descrip-
tion and not of a kind to render the person who stole them
guilty of larceny. Ina leading case on the subject it is said:
“At common law property in a dog, though recognized, has
always been held to be ‘base,’ inferior and entitled to less re-
gard and protection than property in other domestic animals.
Three reasons may be assigned for this. First, ‘dogs do not
serve for food,’ and for that reason ‘the law held that they had
no intrinsic value,’ and ‘therefore,’ says Blackstone (Vol. 4th,
236), ‘though a man may have a base property therein and
maintain a civil action for the loss of them, yet they are not
of such estimation as that the crime of stealing them amounts
to larceny.’ Although since protected by express statutes
from theft, the common law estimate of property in them has
never been changed. Second, because the dog in common
with the class of wild animals to which he originally belonged,
is subject to the most distressing and incueable disease known,
which he is inclined to communicate and frequently, if not
destroyed, does communicate by his bite, to animals and

” Kelley v. Rhoads (Wyo.), 51 Pac. Rep. 03.

58 DOMESTIC ANIMALS.

mankind. For that reason any person without regard to any
right of property in the owner may kill a mad dog, or one that
is justly suspected of being mad and stand justified at com-
mon law. . . . So, according to modern decisions, he may
be killed by any person, if known to have been bitten by a
mad dog, although the same rule would not be applied to
other more useful and less dangerous animals: Putnam v.
Payne, 13 Johns. 312. And the third reason is, that the dog
is chiefly propagated, kept and used for purposes (viz., hunt-
ing and the protection of the family, person and property of
his owner), which require that he should retain in some de-
gree the natural ferocity and inclination to mischief which
characterize him.” 78

A dog is “property” within the meaning of the constitu-
tional provision against taking property without due process
of law.7?

And at the common law an action of trespass or trover
might be sustained for an injury to or the conversion of a
dog; ®° though it has been held that case will not lie for its un-
intentional, though negligent, destruction.*4 ‘‘There be four
kind of dogs which the law regards, viz.: a mastiff, a hound
which comprehends a greyhound, a spaniel and tumbler.” ®?
And in trover for a greyhound it need not be averred that he
was tame.** Nor in an action for an injury to a dog need it
be shown that he had pecuniary value.®*

The subject of actions for damages for killing or wounding
dogs will be treated of later.®®

* Woolf v. Chalker, 31 Conn. 121. And see Blair v. Forehand, 100 Mass.
136. See, as to property rights in dogs, in general, 4o L. R. A. 503 n., and,
as to dog-owners’ rights and liabilities, 3 Sc. L. T. 61, 65, 81, etc.

® Jenkins v. Ballantyne, 8 Utah 245.

© Chambers v. Warkhouse, 3 Salk. 140: Wright v. Ramscot, 1 Saund.
84; Binstead v. Buck, 2 W. Bl. 1117; Graham v. Smith, 100 Ga. 434}
Wheatley v. Harris, 4 Sneed (Tenn.), 468. And see 40 L. R. A. 507 n.

* Jemison v. Southwestern R. Co., 75 Ga. 444.

“ Treland v. Higgins, Cro. Eliz. 125. 8 Tbid.

“* Parker v. Mise, 27 Ala. 480. But see U.S. v. Gideon, 1 Minn. 202.

® See §§ 43, etc., infra.

THE DOG AS THE SUBJECT OF LARCENY. 59

21. The Dog as the Subject of Larceny; Dogs as a Source of
Evidence in Criminal Actions.—As has been stated, the dog was
not the subject of larceny at the common law. A fortiori one
cannot be convicted of obtaining a dog by false pretences.®*
Whether under the changed views of modern times a dog
is now the subject of larceny apart from statute or under gen-
eral words in a statute, is a question which has been much dis-
cussed.87 In a New York case where it was held that a dog
came within the term “personal property” in a statute pun-
ishing larceny, it is said: “The reason generally assigned by
common law writers for this rule as to stealing dogs is the
baseness of their nature and the fact that they were kept for
the mere whim and pleasure of their owners. When we call
to mind the small spaniel that saved the life of William of
Orange and thus probably changed the current of modern
history (2 Motley’s Dutch Republic, 398), and the faithful
St. Bernards which, after a storm has swept over the crests
and sides of the Alps, start out in search of lost travellers, the
claim that the nature of a dog is essentially base and that he
should be left a prey to every vagabond who chooses to steal
him will not now receive ready assent. In nearly every
household in the land can be found chattels kept for the mere
whim and pleasure of the owner, a source of solace after seri-
ous labor, exercising a refining and elevating influence, and
yet they are as much under the protection of the law as
chattels purely useful and absolutely essential. This common
law rule was extremely technical and can scarcely be said to
have had a sound basis to rest on. . . . The artificial reason-
ings upon which these rules were based are wholly inapplic-
able to modern society. Tempora mutantur et leges mutantur
in uhs. Large amounts of money are now invested in dogs,

* Reg. v. Robinson, 28 L. J. M. C. 58.

See also, on the subject of this section, 4o L. R. A. 514 n.

*7 See Straker’s essay on Larceny of Dogs (Detroit, 1893), in which the
author concludes that dogs are not the subject of larceny unaided by
statute. See § 22, infra.

60 DOMESTIC ANIMALS.

and they are largely the subjects of trade and traffic. In
many ways they are put to useful service and, so far as per-
tains to their ownership as personal property, they possess
all the attributes of other personal property.” **

So in another New York case it is said: “In the year 1857
a law was passed in this State providing for the ‘incorporation
of associations for improving the breed of domestic animals.’
It declares that any corporation formed under it shall have
power to raise, import, purchase, keep, breed and sell all kinds
of domestic animals. Why are not dogs within the purview
of this statute? Although not ranked among domestic ani-
mals in the time of or by Lord Hale, yet the estimation in
which they have been since held by society shows that they
are no longer considered to be so base as not, on that account,
at least, to be the subject of larceny. If by ‘domestic’ is
meant ‘belonging to the house,’ who can deny this attribute
to the dog? What animal more domestic? What one ap-
preciates a home more, shows stronger attachments to it, or,
if it strays from it, is more certain to return to it? In some of
its species it serves as a pet or a companion. In others, it
assists and takes part in manly sports and recreations. In
others again, it is the faithful custodian and guardian of prop-
erty. In none, it may be said, is it entirely divested of use-
fulness. When the benefits it confers are reflected upon, why
is there not a perfect propriety in improving the breed of such
an animal? If it comes within the description of domestic
animals under this act of 1857, it is certainly property, the sub-
ject of larceny.” 89

But in Maine under a statute making it an offense to kill
or wound a domestic animal, it was held that a dog was not

* Mullaly v. Peo., 86 N. Y. 36s.

In Mississippi a dog is “‘property:” Jones v. Ill. Cent. R. Co. (Miss.),
23 South. Rep. 358.

* Peo. v, Campbell, 4 Park Cr. (N. Y.) 386, 304. And in Peo. v. Tighe,
9 Misc. (N. Y.) 607, after stating the common law doctrine as to property
in dogs, the court says: “But the world moves and these conditions no
longer exist, and in this State a dog is property.”

THE DOG AS THE SUBJECT OF LARCENY. 61

a “domestic animal”—a decision that to the lay mind must
seem curious.°°

Where the statute defined larceny as the ‘felonious taking
the personal property of another” and defined “personal prop-
erty” as “goods, chattels, effects, etc.,” the court said, in a
case where the defendant was indicted for stealing a dog,
“There is no term broader than chattel. Bouvier in his Law
Dictionary says a ‘chattel is a term including all kinds of prop-
erty except the freehold and things which are parcel of it.’
If these statutes, therefore, do not clearly abrogate the com-
mon law rule, they raise so grave a question as to render it
improper for me on habeas corpus to discharge the pris-
oner.”’ 9?

So where a statute conferred power upon a magistrate to
order the delivery of goods unlawfully detained to their
owner, it was held that the term “goods” included a dog, the
court saying: “Surely under a bequest of ‘all my worldly
goods’ a dog would pass to the legatee.” °?

But where a statute imposed a penalty on the larceny of
“goods or chattels” and, in another section, on that of bonds,
bills, etc., it was held that a dog was not included in the term
“goods and chattels.” “There is no reason for supposing
that it was intended by this act to extend the crime of larceny
beyond its ancient limits. That would be a singular con-
struction of a law, the object of which was to mitigate the
penal code. By the words any goods or chattels we are to un-
derstand any such goods or chattels as have been esteemed
subjects of larceny. . . . Bonds, bills, etc., are goods or chat-
tels; and yet it was thought necessary to declare them sub-
jects of felony by a special provision; which shows that the
words goods or chattels before mentioned were to be taken, not

® State v. Harriman, 75 Me. 562.

"Peo. v. Maloney, 1 Park Cr. (N. Y.) 593. And in Iowa and South
Carolina a dog is the subject of larceny as a “chattel:” Hamby v. Samson,
105 Ja. 112; State v. Langford (S. C.), 33 S. E. Rep. 370.

*® Reg. v. Slade, 21 Q. B. D. 433.

62 DOMESTIC ANIMALS.

in their most extensive signification, but according to their
usual import in the criminal law.” °*

And in Alabama it has been held that a dog does not come
within the words “personal property,” as there is no statute
changing the common law.** And in a later case it was held
that a statute making it larceny to steal a registered dog fora |
reward, without a provision making dogs property or giving
them some value or stating whether the punishment of grand
or petit larceny should be imposed, was void for uncertainty.
“Dogs are not property. There is no presumption that any
dog is valuable. Not being property, the prima facie pre-
sumption in any case is that the animal has no value. It is,
of course, competent for the legislature to make dogs prop-
erty, and a status thus given them would, we may concede,
without deciding, carry with it a presumption of value.” %
And it was held that the mere fact of registry did not imply
either the attributes of property or the incident of value.

In a Tennessee case holding, like Peo. v. Maloney, supra,
that, where a statute defined “personal property” as “goods
and chattels,” a dog was included, the court said, referring to
Ward v. State, supra: “That court we suppose had no statu-
tory definition of ‘personal goods’ or ‘personal property,’-and
referred to the common law definition.” %¢

In Indiana dogs have been held not to be subjects of lar-
ceny as “personal goods.” 7

In an Ohio case, referring to State v. Lymus, supra, it is
said: “Since that decision our larceny act has been revised
and re-enacted and the words now used to describe property
that may be stolen are ‘any thing of value.’ These words,

“ Tilghman, C. J., in Findlay v. Bear, 8S. & R. (Pa.) 571. And see
to the same effect State v. Lymus, 26 O. St. 400. See, also, State v. Yates,
infra.

But now, in Pennsylvania, dogs have been declared to be personal prop-
erty and the subject of larceny: Com. v. Depuy, 148 Pa. St. 201.

“Ward v. State, 48 Ala. 161. And see State v. Holder, 81 N. C. 527.

* Johnston v. State, 100 Ala. 32.

* State v. Brown, 9 Baxt. (Tenn.) 53. * State v. Doe, 79 Ind. 9.

THE DOG AS THE SUBJECT OF LARCENY. 63

unlike the words ‘goods and chattels,’ have no settled and
well-defined meaning at the common law. We are left to
find their meaning, if there is any question, by the legitimate
aids in that behalf.” The court accordingly held that a dog
was a “thing of value.” 8

_ And in Kansas a dog was held to be included in the term
“other personal property or valuable thing whatever” in a
larceny statute.®®

In England the larceny of a dog is now punishable under
Stat. 7 and 8 Geo. IV ch. 29 § 25, and 8 and 9g Vict. ch. 47.

Where a registered dog is made by statute the subject of
larceny, one not registered is not the subject of larceny.1°°

The dog as the subject of a prosecution for malicious mis-
chief will be discussed hereafter.1%

Evidence that a trained bloodhound has tracked one ac-
cused of committing a crime is competent to go to the jury
as a Circumstance tending to connect the defendant with the
crime.!°? But the visits tracked must have some connection
with the offence charged and tend to show a system of
crime.?°3 In a Kentucky case it was held that evidence as
to trailing by a bloodhound is admissible where it is estab-
lished by the testimony of some one who has personal knowl-
edge of the fact that the particular dog has acuteness of scent
and power of discrimination, and has been trained or tested
in the tracking of human beings, and it appears that the dog,
so trained and tested, was laid on the trail, whether visible
or not, at a point where the circumstances tended clearly to
show that the guilty party had been, or upon a track which
such circumstances indicated to have been made by him.1%

* State v. Yates (O. Com. Pl.), 10 Crim. L. Mag. 430.

© Harrington v. Miles, 11 Kan. 480.

* State v. Butler (Del.), 43 Atl. Rep. 480. ' See § 126, infra.

™ Hodge v. State, 98 Ala. 10; State v. Hall, 3 Ohio N. P. 125.

*8 Spillman v. State (Tex. Cr.), 44 S. W. Rep. 150.

** Pedigo v. Com. (Ky.), 44 S. W. Rep. 143. Guffy, J., dissented, and
his opinion is favorably commented on in 57 Alb. L. Jour. 131 and 34 Can.
L. Jour. 286.

64 DOMESTIC ANIMALS.

Evidence that bloodhounds of the same breed, trained by the
same man, as those used to track the defendant, at one time,
after having been put upon the track of a human being, left
the trail to trail a sheep, is inadmissible.1°°

The effect of taxation in determining the status of a dog
at law is considered in the next section.

22. Taxation and License.—The common law doctrine that
dogs are not the subjects of larceny has been held to be abro-
gated by a statute imposing a tax, that being a recognition of
property in them, the tax in this case being for the common
school fund and not to be expended in payment for sheep
killed by the dogs.1°® And where dogs were held not to be
the subjects of statutory larceny, the court said: “If dogs
were taxed in Indiana as other property for revenue purposes,
it would be a strong circumstance to show an intent on the
part of the legislature to abrogate the common law rule and
make them the subjects of larceny like any other personal
property. But, so far as we are advised, dogs have never
been thus taxed. A specific tax has been, from time to time,
levied upon dogs, and, when collected, applied generally, if
not always, to payment for sheep killed by them. . . . These
specific taxes upon dogs can be upheld only on the ground
that they are not revenue measures, but police regula-
tions.”’ 197

License taxes on dogs to be paid over to a fund to com-
pensate sheep owners for their losses caused by the dogs, are
not unconstitutional as creating a fund to the advantage of

™ Simpson v. State, 111 Ala. 6,—the court saying: ‘The test by compar-
ison was not sufficiently certain to determine the reliability of the dogs
employed here by reference to the qualities of other dogs.”

*° Com. v. Hazelwood, 84 Ky. 681.

See, in general, as to license and tax laws, go L. R. A. 520 n.

*7 State v. Doe, 79 Ind. 9. To the same effect see Van Horn v. Peo.,
46 Mich. 183, and the cases cited in n. 114 infra. And as to the Indiana
statute, see Shelby v. Randles, 57 Ind. 390.

TAXATION AND LICENSE. 65

one portion of the community as against another.!°° In an
Indiana case it is said: “The plain purpose and intent of this
act is not to provide a revenue for public uses, but to discour-
age the keeping of dogs, and indicating it to be the policy of
the State to protect one species of valuable property from de-
struction by another species, which is in terms declared use--
less... . It is a matter of no consequence how the sum.
charged to the owner of a dog may be collected. If it be
deemed more convenient to place it upon the tax duplicate, it.
does not therefore make it a tax and subject to the constitu-
tional objection.” 1°

In a similar case it is said: ‘““We cannot assent to the posi-
tion taken by the appellant that if the sum required for
a license exceeds the expense of issuing it, the act transcends
the licensing power and imposes a tax. By sucha theory the
police power would be shorn of all its efficiency. The exer-
cise of that power is based upon the idea that the business
licensed or kind of property regulated is likely to work mis-
chief and therefore needs restraints which shall operate as a.
protection to the public. For this purpose the license money
is required to be paid.” 11°

The fact that a man applied for a license to keep a dog is-
competent evidence that he was owner or keeper of the dog,
where a complaint was brought against him for not having a
license.41_ The owner of a dog does not escape the penalty
imposed in the act by procuring a license after the statutory
period has elapsed.112 The complaint may be made by any

8 Longyear v. Buck, 83 Mich. 236.

2 Mitchell v. Williams, 27 Ind. 62. And see Cole v. Hall, 103 Ill. 303:
Holst v. Roe, 39 O. St. 340.

Refusing to take out a dog license is not an “offense of a trifling nature,’”
within the meaning of a statute regulating appeals from summary con-
victions before justices: Phillips v. Evans, [1896] 1 Q. B. 305.

"° Tenney v. Lenz, 16 Wis. 566.

™ Com. v. Gorman, 82 Mass. 601. For the description in a license, see’
Com. v. Brahany, 123 id. 245.

™ State v. Colby (N. H.), 36 Atl. Rep. 252.

5

66 DOMESTIC ANIMALS.

‘person—not merely by the police officers and constables on
whom the duty is specifically imposed by statute.’**

In a case where a dog was held not to be “property” so as
to be liable to be taxed ad valorem as other property, it was
held also that an act making dogs subject to a “tax” of one
dollar per annum, to be paid by their owners or harborers
under penalty of five dollars and costs, was not technically a
tax but a legitimate police regulation, and the court said, quot-
ing Cooley on Taxation, 601: “ ‘Though a tax is sometimes
levied for revenue upon the keepers of dogs, it is more usual
to require the keeping to be licensed, the principal object
being to have some person responsible for every animal of the
kind that is protected by the law.’ . . . It is to be noted that
the act we are considering is in harmony with this view, and is
‘An act to levy a tax on the privilege of keeping or harboring
dogs.’ ” 114 On the other hand it was said in a case in the
District of Columbia: ‘The law recognizes property in and to
dogs, and the owner thereof is entitled to his remedies for an
invasion of his rights of property. This is too well settled in
England and in the States of this Union to be now questioned.
The right of property in animals cannot be declared unlaw-
ful unless a license is first obtained. We do not undertake
to say that a given or particular mode of using any kind of
property might not be prohibited, but for the general posses-
sion of that in which the right of property exists, which is not
a mere franchise, how can it be declared unlawful and a license
demanded before the person is authorized to own or keep?
If dogs are property they may be taxed and the tax assessed
to the owner. But would it be claimed that for the non-pay-
ment of the tax the owner could be arrested, fined and im-
prisoned? . . . We do not say that the owner may not be

“8 State v. Howard (N. H.), 43 Atl. Rep. 592.

™ Ex parte Cooper, 3 Tex. App. 480. And see Kidd v. Reynolds
(Tex. Civ. App.), 50 S. W. Rep. 600; Mowery v. Salisbury, 82 N. C.
175; Carthage v. Rhodes, tor Mo. 175; Griggs v. Macon, 103 Ga. 6023
Com. v. Markham, 7 Bush (Ky.) 486; Hendrie v. Kalthoff, 48 Mich. 306.

TAXATION AND LICENSE. 67

required at certain seasons to muzzle his dog, and for suffer-
ing him to run at large without it he may be subjected to a
fine. This power would exist, to make some police regula-
tion in a proper way for the safety of acommunity. But here
was an ordinance declaring the owner a criminal and subject-
ing him to arrest, imprisonment and fine for keeping his prop-
erty at home, unless he first obtained a license.’ The act in
question was therefore held unconstitutional.11®

But this case was criticised adversely in a late case in the
Supreme Court of the United States, where it was held that
a State statute providing that no dogs should be entitled to
the protection of the law unless placed upon the assessment
rolls, and that no recovery for its value could be had for more
than the amount fixed by the owner in the last assessment,
was a constitutional exercise of the police power. Mr. Jus-
tice Brown said: “As it is practically impossible by statute
to distinguish between the different breeds or between the
valuable and the worthless, such legislation as has been en-
acted upon the subject, though nominally including the whole
canine race, is really directed against the latter class, and is
based upon the theory that the owner of a really valuable dog
will feel sufficient interest in him to comply with any reason-
able regulation designed to distinguish him from the com-
monherd. Acting upon the principle that there is but a qual-
ified property in them, and that while private interests require
that the valuable ones shall be protected, public interests de-
mand that the worthless shall be exterminated, they have,
from time immemorial, been considered as holding their lives
at the will of the legislature and properly falling within the
police powers of the several States.” 118

Although good logical and philosophical reasons might be
given for regarding the common law as a present, as well as a
past growth, and therefore holding that it recognizes a change

“5 Mayor v. Meigs, 1 McArth. (D. C.) 53.
See the panegyric on the dog in this opinion.
"6 Sentell v. New Orleans & C. R. Co., 166 U. S. 698. :

68 DOMESTIC ANIMALS.

or development in the common consensus of mankind as to
the value of certain kinds of property, formerly little es-
teemed, and that dogs, bonds, etc., would now be considered
the subjects of larceny apart from any statute—although this
view seems a thoroughly rational one, the question would
hardly arise, as there are larceny statutes in all of the States
and the general tendency certainly is to include under the
general terms of these statutes such as “property,” “goods,”
“chattels,” “things of value,” all those kinds of property that
were formerly, for technical reasons, held not to be embraced
by them. The value of the dog is too well known at the
present day to be made a subject of dispute either in courts
or in legislative assemblies, and as to the older law we can
only repeat what was said in Mullaly v. Peo., supra, that “the
artificial reasonings upon which these rules were based are
wholly inapplicable to modern society.”

TITLE II.

TRANSFER OF PROPERTY.

CHAPTER I.

SALE AND MORTGAGE.

23. What may be sold. 32. What does not amount to a
24. Change of possession. warranty.
25. Animals running on the range. 33. What constitutes unsoundness,
26. Validity; damages. etc.
27. General nature of a warranty; 4. Specific forms of unsoundness.
patent defects, etc. g5. Return on breach of warranty.
28. Animals bought for a special 36. Damages on breach.
purpose, as breeding, etc. 37. Mortgage of animals and their
29. Sale for food. increase.

30. Warranty by a servant or agent. 38. Priority of the mortgage lien.
31. What amounts to a warranty.

23. What may be Sold.—It is not proposed here to enter into
an exhaustive investigation of the principles of the law of
Sale and Mortgage. Animals are personal property and
subject to all the laws governing such property. A great
majority of the cases that would fall naturally under the pres-
ent head relate not to animals as such but to property in gen-
eral. These accordingly will not be considered here, but our
attention will be confined to those cases where some feature
peculiar to property in animals is made the very ground of
decision.

All animals that are subjects of property may be bought and
sold like other kinds of property, and the same is true of their

increase and produce. The subject of the sale of the increase of
69

70 SALE AND MORTGAGE.

animals has been already treated.1_ The sale of an animal
includes its natural produce, such as wool, milk, etc., and in
an action against the seller of sheep shorn before delivery to
recover the value of the wool, it was held that evidence could
not be given of a custom that wool sold under such circum-
stances did not go to the buyer.2, A man may sell the milk
that his cow will yield during the coming month or year, or
the cheese to be made from the same, or the wool to be
clipped from his sheep at a future time, but he can make only
a valid agreement to sell the wool or milk of animals that he
is afterwards to acquire. So a sale of fish hereafter to be
caught in the sea will not pass title to the fish when they are
caught.t The sale of animals running at large is considered

below.®

24, Change of Possession.—The sale must be completed by
delivery in order to make it valid as against the rights of third
parties. Therefore where the purchaser of a team of horses
arranged with the seller for the use of the stable till he should
be ready to move them, and with the keeper, who had the key
of the stable, to remain in charge of them, but there was no
visible change in the possession of the team, the sale was held
to be fraudulent as to an execution creditor. On the other
hand, where the seller gave the stable-key to the purchaser,
who immediately took possession and put a man in charge
and employed the former drivers as his own employees and

*See § 17, supra. ? Groat v. Gile, 51 N. Y. 431.

* Benj. Sales § 78; Van Hoozer v. Cory, 34 Barb. (N. Y.) 9, 13; Jones v.
Richardson, 10 Metc. (Mass.) 481, 488.

* Low v. Pew, 108 Mass. 347. °See § 25, infra.

° Stephens v. Gifford, 137 Pa. St. 210.

The title to cattle passes upon their delivery in payment of a debt and
the marking of them by the creditor, although they are left in the debtor’s
Possession, and the onus of showing fraud is on the party attacking the
transaction: Kennedy v. Whittie, 27 Nov. Sco. 460.

As between the parties, delivery is not necessary to complete the
sale, unless it is made so by contract: Downey v. Taylor (Tex. Civ.
App.), 48 S. W. Rep. 541.

CHANGE OF POSSESSION. 71

they collected bills for him, made out in his name, and the
execution creditor of the seller and others also had notice of
the sale and change of possession, the sale was held to be valid
as against the execution creditor.7. But where the cattle,
after the sale, were driven to another place under the charge
of the seller, who purchased fodder for them in his own name
but for the purchaser’s benefit, this was not a change of actual
possession as against the seller’s creditor. And where the
purchaser’s agent went among the herd, cutting out a certain
number and saying that the rest were as called for in the con-
tract, this was not a sufficient delivery.®

The sale of a given number of cattle running in a herd is:
an executory contract and does not apply to any particular
cattle until the number sold have been separated. The bill
of sale giving the purchaser the right to select and take im-
mediately gives him the right, after demand and refusal, to
recover possession of the entire herd in an action at law and
then to select the number purchased and return the residue
to the seller.1°

An agreement that one of the sellers should be hired by the
purchaser “‘to drive the team and have possession and control
until they were paid for, and as long thereafter as they could
agree,” was held to give possession to the seller as a driver
only, and not as owner.*1_ So where A. agreed to buy all of
B.’s spring lamb, B. to pasture them till they were called for,
it was held that a loss, not B.’s fault, while the lambs were
being pastured, fell on A.12 But where one agrees to buy a-
horse for cash and to take him within a fixed time, and rides
the horse and gives directions as to his treatment, but leaves
him in the seller’s possession for a still further period with the

‘Janney v. Howard, 150 Pa. St. 339.

* Harris v. Pence, 93 Ia. 481. And see Henderson v. Hart, 122 Cal. 332.
* Slaughter v. Moore (Tex. Civ. App.), 42 S. W. Rep. 372.

* McLaughlin v. Piatti, 27 Cal. 4st.

* Barnhill v. Howard, 104 Ala. 412.

* Bertelson v. Bower, 81 Ind. 512. And see Morgan v. Miller, 62

Cal. 492.

we) SALE AND MORTGAGE.

latter’s consent, and the horse dies, there is no acceptance
within the meaning of the Statute of Frauds, and the buyer
‘is not liable for the price.1*

In the sale of oxen a delivery of the brass knobs which had
been worn upon their heads is not a symbolical or construc-
tive delivery of the oxen, unless by special agreement.t*

A contract for the delivery of a certain number of cattle is
severable and, if the purchaser accepts and appropriates
some of them, he must pay the price, less the damages sus-
tained by reason of the failure to complete the delivery."

25. Animals Running on the Range.—Cattle on a range which
is common pasturage, though actually in the possession of no
‘one, are constructively in that of their owner, and upon the
‘sale thereof a warranty of title will be implied..° Though
there can be no delivery, the general property vests in the
purchaser, and he can claim nothing by way of recoupment
if he fails to reduce the estimated number into his posses-
‘sion, where there has been no fraud or misrepresentation and
‘he knew the number and quality of the stock purchased."*
‘The parties are entitled to a reasonable time after the sale
to prepare for and give proper notices of a rodeo, in order
that they may separate the cattle purchased and mark and
brand them. When they are thus collected and marked with
the purchaser’s brand, and then allowed to pasture on their

*%* Tempest v. Fitzgerald, 3 B. & Ald. 680. And see Carter v. Toussaint,
‘5 B. & Ald. 855; Branigan v. Hendrickson, 17 Ind. App. 198. Where pos-
‘session has passed and an additional price is to be paid in the event of a
successful test within a definite time, the purchaser is not relieved of such
liability, if the sickness of the animal prevents the test, it being shown
otherwise that it would have been successful: Deyo v. Hammond, 102
Mich. 122, A promise to sell a colt at a certain sum, if sound at five
‘months old, does not require a sale and delivery on the last day of the five
months, but within a reasonable time thereafter: Dawley v. Potter, 19
R. I. 372.

“ Clark v. Draper, 19 N. H. 419.

* Saunders v. Short, 86 Fed. Rep. 225. ™ Budd wv. Power, 9 Mont. 99.

"' Cockrell v. Warner, 14 Ark. 345.

ANIMALS RUNNING ON THE RANGE. 73

accustomed range, these acts constitute a good delivery and
change of possession.!®

A statute providing that stock animals running on the
range may be sold by the sale and delivery of the brand, and
that the purchaser shall record the bill of sale, refers only to
what is known as a “sale of a mark and brand,” 1. e., where
the animals run at large and are identified exclusively by the
owner’s mark and brand and he sells his entire stock in a par-
ticular mark and brand.1® It does not, however, admit of the
construction that a number less than all in any brand may be
sold by an unrecorded sale.?° But it does not apply to a sale
of cattle which the seller has placed in a pasture and desig-
nates in the bill of sale as a certain number bearing a certain
‘brand ;7? nor to a sale of the stock only and not of the
brand, where there has been actual delivery and change of
possession, and the cattle are described by the brand in the
unrecorded bill of sale only as a matter of identity.22 And
one who has once had actual possession under a verbal con-
tract of sale does not lose his title by subsequently turning the
cattle upon the range.*8 Where the transaction is tainted
with fraud, the fact that the seller caused the county clerk to
record the marks and brands of horses as having been trans-
ferred to the purchaser is not alone a compliance with the
statute.*4

An estimate as to the number of stock running loose on a
range, not all of which had been rounded up, may be given by
one familiar with the stock and their range; and testimony is
admissible as to this number, based on the rule in general use

** Walden v. Murdock, 23 Cal. 540.

* Nance v. Barber, 7 Tex. Civ. App. 111. See Black v. Vaughan, 70
Tex. 47; Wells v. Littlefield, 59 id. 556.

* Rankin v. Bell, 85 Tex. 28.

= Nance v. Barber, supra.

” Rainwater-Boogher Hat Co. v. O’Neal, 7 Tex. Civ. App. 242. And see
First Nat. Bk. v. Brown, 85 Tex. 80.

* Davis v. Dallas Nat. Bk., 7 Tex. Civ. App. 41.

* Hickman v. Hickman, 5 Tex. Civ. App. 99.

74 SALE AND MORTGAGE.

by stockmen that the number of calves branded be multiplied
by four to get the number of cattle in the brand.”°

26. Validity; Damages.—The rule of “caveat emptor’’ applies
to sales of animals, where there is no fraud, concealment or
warranty. Therefore, the mere fact of selling knowingly a
glandered horse is not an illegal act at the common law.”
And a statute imposing a penalty on the sale of a diseased
animal does not make the trade of a glandered horse so ab-
solutely void that the person defrauded can replevy the horse
he exchanged without prior demand and tender back of the
boot-money.27. The general subject of the sale of animals
afflicted with contagious or infectious diseases will be treated
of hereafter.?®

In England a horse dealer cannot maintain an action upona
private contract for the sale and warranty of a horse made on
a Sunday.?® Otherwise, of the sale of a horse not made in
the exercise of an ordinary calling.*°

A verbal agreement to pay for a colt after it was weaned
was held to be within the Statute of Frauds, the performance
requiring eleven months for gestation and four months more
for weaning.*?

* Cabaness v. Holland (Tex. Civ. App.), 47 S. W. Rep. 379.

* Hill v. Ball, 2H. & N. 299. And see Ward v. Hobbs, 4 App. Cas. 13;
Court v. Snyder, 2 Ind. App. 440. Cf. Bodger v. Nicholls, 28 L. T. N. S.
44I.

That where a ‘horse is for any purpose worthless there is total failure of
consideration, irrespective of warranty, see Danforth & Co. v. Crook-
shanks, 68 Mo. App. 311.

* Havey v. Petrie, 100 Mich. 190.

* See § 88, infra. * Fennell v. Ridler, 8 D. & R. 204.

As to whether a private individual can maintain an action against a dog-
dealer upon the warranty of a dog sold on a Sunday, see Tronghear v.
Dewhirst (Co. Ct. case), criticised in 94 L. T. 2.

Where a Sunday exchange is invalid, a party may nevertheless maintain
replevin if the horse is retaken from his possession by the other party:
Kinney v. McDermot, 55 Ia. 674.

*° Drury v. Defontaine, 1 Taunt. 131.

“Lockwood v. Barnes, 3 Hill (N. Y.) 28. That a contract entirely

VALIDITY ; DAMAGES. 75

A rule of a live-stock exchange that members shall not
recognize any yard trader who is not also a member of the
exchange was held not to be in restraint of trade nor a com-
bination to monopolize or attempt to monopolize such trade
within the prohibition of a statute.3?

Where the purchaser of cattle refuses to accept them and
the seller re-sells them in open market, his measure of dam-
ages is the contract price less the amount realized from the
sale in excess of the necessary and proper expense of sale and
keep.28 But he cannot recover for the expense of keeping
animals either during the whole time of litigation or that part
of it in which they might have been sold by him as agent of
the purchaser.*4 Where the seller is put to additional ex-
pense in moving cattle which are not called for by the pur-
chaser in accordance with his contract, such additional ex-
pense may be recovered.2> Where the price and charges for
delivery are paid and no delivery is made, the purchaser may
recover the money paid, and the death of the animal after the
time arranged for delivery is no defence.*®

executed on one side within a year is not within the statute, see Trimble
v. Lanktree, 25 Ont. 109.

” Anderson v. U. S., 171 U. S. 604.

* Slaughter v. Marlow (Ariz.), 31 Pac. Rep. 547. And see McCracken
v. Webb, 36 Ia. 551.

The same measure of damages exists for failure to deliver a telegraphic
message in due time, in consequence of which the sale was not completed:
Herron v. West. Un. Tel. Co., 90 Ia. 129. In such a case, without regard
to re-sale, the measure of damages for failure to deliver the message is
the difference between the market value where the cattle were at the time
and the contract price at the place of delivery, less the cost of transporta-
tion to the latter place: West. Un. Tel. Co. v. Williford, 2 Tex. Civ. App. 574.

As to damages where the defendant was to pay a certain price per pound
for the dressed carcasses of cattle, see Fletcher v. Jacob Dold Packing
Co., 58 N. Y. Suppt. 612.

* Putnam v. Glidden, 159 Mass. 47. If the animal dies or is lost before
re-sale, this does not relieve the original purchaser from liability for the
contract price: Weathered v. Golden (Tex. Civ App.), 34 S. W. Rep. 761.

*® Gleckler v. Slavens, 5 S. D. 364. And see Holtz v. Peterson (Ia.),
62 N. W. Rep. 19.

* Winn v. Morris, 94 Ga. 52. The expense of furnishing and holding

76 SALE AND MORTGAGE.

The measure of damages for the breach of a contract to de-
liver a certain kind of cattle is the difference between the value
of the cattle actually delivered and those contracted for.?*

Where the purchase of a stallion for breeding purposes
has been induced by false representations, the expense of
keeping it for a reasonable time in order to test it, may be
recovered.28 But where a certain interest in a stallion is sold
for a share of the net profits to be derived from standing him,
the sellers not to be responsible for expenses or damages, and
there being no fraud or warranty of soundness, the pur-
chaser cannot recover any part of the expense, though the
horse is in fact worthless.2® Where the purchaser has ac-
cepted a horse and keeps it for a year with no attempt to re-
scind on account of the seller’s failure to furnish a certificate
of pedigree as agreed upon, the fulfilment of such agreement
is not a condition precedent to recovery on the purchase-
money notes.4? Where the seller of a horse rescinds his
contract, he is liable to the purchaser for the expense of the
keep of the horse from the time it came into his possession.*!

The subject of the measure of damages in an action on a
warranty is discussed below.4?

27. General Nature of a Warranty, Patent Defects, Ete—A
discussion of the general law of Warranty does not fall within
the scope of the present treatise. Such parts of this law, how-
ever, as apply to animals as such will be here considered.

Although a general warranty of health or soundness will
not cover patent defects, the seller may warrant against such
a defect, as, for example, against footrot in sheep.*® Where

cars for transportation may be recovered: Hockersmith v. Hanley, 29
Oreg. 27. As to evidence of the market value, see Graham v. Frazier
(Neb.), 68 N. W. Rep 367.

“ Harris v. First Nat. Bk. (Tex. Civ. App.), 45 S. W. Rep. 311.

* Peak v. Frost, 162 Mass. 208.

* Hays v. Richie (Tex. Civ. App.), 34 S. W. Rep. 150.

“ Brown v. Ellis (Ky.), 45 S. W. Rep. 94. * King v. Price, 2 Chit. 416.

* See § 36, infra. * Pinney v. Andrus, 41 Vt. 631.

GENERAL NATURE OF A WARRANTY, ETC. 77

the purchaser can see only the effects of a disease which is
explained away by the seller as an insignificant or temporary
one, but is, in reality, of a more serious nature, such a disease
is not obvious so as to be excluded from the operation of a
general warranty.** Thus, an express warranty against all un-
soundness in a horse covers all defects arising from a disease
of the kidneys or spine, where they are not apparent to the
eye, though symptoms of the disease are apparent but not
known as such to the purchaser.*® As some splints cause
lameness and others do not, a splint is not one of those patent
defects against which a warranty is inoperative.*® As in-
stances of other patent defects not covered by a warranty may
be cited the fact that a horse is deaf or moon-eyed or spav-
ined,** or a crib-biter.4® But if a defect is discoverable only
by the exercise of skill it is not so patent as to be excluded
from the operation of the warranty.*® And where the buyer
suspects a defect and wishes to make an examination, but the

“ Chadsey v. Greene, 24 Conn. 562; Perdue v. Harwell, 80 Ga. 150. The
knowledge of the seller seems to have been a factor in each of these cases.
See also Connell v. McNett, 109 Mich. 329; Nauman v. Ullman (Wis.),
78 N. W. Rep. 159.

* Storrs v. Emerson, 72 Ia. 390. And see Shewalter v. Ford, 34 Miss.
417, cited in § 33, infra.

* Pollock, C. B., in Smith v. O’Bryan, 11 L. T. N. S. 346, following
Margetson v. Wright, 1 M. & Scott, 622; 8 Bing. 454, in which latter
case the jury had found that the horse, which afterwards became lame,
had the seeds of unsoundness upon him arising from the splint at the time
of the sale. See also the earlier decision in Margetson v. Wright, reported
in5 M. & P. 606.

“ Hoffman v. Oates, 77 Ga. 701. But see as to spavin, Watson v. Den-
ton, 7 C. & P. 85, cited in § 34, infra.

““Margetson v. Wright, 5 M. & P. 606. And see Dean v. Morey, 33 Ia.
120; Walker v. Hoisington, 43 Vt. 608; Paul v. Hardwick, 1 Chit. Contr.,
11th Am. ed. 655; Oliph. Horses (5th ed.) 75; Broennenburgh v. Hay-
cock, Holt 630; Scholefield v. Robb, 2 M. & Rob. 210.

Cf. Washburn v. Cuddihy, 8 Gray (Mass.) 430. See § 34, infra.

* House v. Fort, 4 Blackf. (Ind.) 293, where the horse wanted the sight
of one eye. And see Butterfield v. Burroughs, 1 Salk. 211.

“The meaning of a horse being sold ‘with all his faults’ is, that the pur-
chaser shall make use of his eyes and understanding to discover what

78 SALE AND MORTGAGE.

seller objects and says, “I will warrant,” the latter is liable
for the defect.2° Where the seller informed the buyer that
one of the two horses sold had a cold, but agreed to deliver
both at the end of a fortnight “sound and free from blemish,”
and delivered them at that time, the cough still continuing
and the other horse having a swollen leg from a kick received
in the stable, and the seller brought an action to recover the
price, which he failed in—the court refused to grant a new
trial on the ground that the defects were patent, since the war-
ranty did not apply to the time of sale only, but was a con-
tinuing one to the end of the fortnight.>*

A warranty may be prospective in its operation, as that a
horse will be sound after a certain time.®* And if an animal
is warranted sound for a day or a month, the duration of the
warranty is limited and complaint must be made or the animal
returned within the time fixed,®* and it is immaterial that the
seller may have known of the unsoundness at the time of the
sale.°* And, in general, the seller’s knowledge of the defect
wiJl not defeat a warranty where there is no misrepresentation
or concealment.®®> On the other hand, any fraud at the time

faults there are; and the seller is not answerable for them if he does not
make use of any fraud or practice to conceal them:” Oliph. Horses
(5th ed.) 152.

© Oliph. Horses (5th ed.) 132, citing Dorrington v. Edwards, 2 Rol. 188.

" Liddard v. Kain, 9 Moo. 356.

“2 Schoul. Pers. Prop. (2d ed.) § 332, controverting Blackstone’s
statement to the contrary.

* Chapman v. Gwyther, L. R. 1 Q. B. 463. So, if the animal on trial
is found to have defects. Trial means a reasonable trial. Unless such trial
has been prolonged by subsequent misrepresentations of the seller, the
animal should be returned as soon as the defects are discovered: Adam
v. Richards, 2 H. BI. 573.

“ Bywater v. Richardson, 3 N. & M. 748.

* Anon. Lofft 146.

And the seller need not know of the unsoundness to be liable on an
express warranty: Norris v. Parker (Tex. Civ. App.), 38 S. W. Rep. 259:
Carter v. Cole (Tex. Civ. App.), 42 id. 369; Sanders v. Britton (Tex. Civ.
App.), 47 id. 550.

GENERAL NATURE OF A WARRANTY, ETC. 79

of the sale will avoid it, though it does not amount to a breach
of the warranty.**

Where a horse answers a warranty at the time it is sold and
its subsequent bad conduct is due to the plaintiff’s unskilful
driving, he cannot recover for breach of warranty.57 And if
the purchaser has failed to return a horse and by the applica-
tion of medicines or otherwise has lessened his value, he can-
not allege the breach of warranty as a defence in an action for
the price.°® But where a warranty that horses were “all
right” was a conditional one, involving the necessity of the
purchaser’s treating a defect in a certain way, it was held in
an action for the breach of the warranty that he was bound to
use such treatment, and that this was a good excuse for his
refusing to try another treatment which might hazard the
effect of the warranty.°®

The evidence to show a breach of warranty must not relate
to a time too remote; therefore proof that a horse balked
seven weeks after he was sold was held not sufficient to show
a breach of warranty that he was true to harness.°° And
where a bull-calf at the time of sale was but three months old,
free from apparent defect, and seen by the purchaser, it was
held that there was no legal presumption that his sterility
which appeared two years later existed at the time of the sale
and that there was no implied warranty that he would pos-
sess the power of procreation at maturity.6t The right of
action for the breach of a warranty of a horse in a conditional
sale arises at once as in the case of an absolute sale, as where

Steward v. Coesvelt, 1 C. & P. 23; Croyle v. Moses, 91 Pa. St. 250.

Though the seller of a stock of cattle refuses to warrant the number of
them, he may be liable for fraudulent representations as to their number:
Cabaness v. Holland (Tex. Civ. App.), 47 S. W. Rep. 379.

* Geddes v. Remington, 5 Dow. 159, where the warranty was that the
horse was “thorough broke for a gig.”

* Curtis v. Hannay, 3 Esp. 82.

*° Smith v. Borst, 63 Barb. (N. Y.) 57.

© Smith v. Swarthout, 15 Wis. 550.

“ White v. Stelloh, 74 Wis. 435.

80 SALE AND MORTGAGE.

the property is not to pass till the payment of a note, and be-
fore its maturity the horse dies.®

Infancy is a good defence to an action on a warranty of a
horse.®

No indictment will lie for a deceitful representation and
warranty of the soundness of a horse.®*

28. Animals Bought for a Special Purpose, as Breeding, Etc.—
“Tf a man sells a horse generally he warrants no more than
that it is a horse; the buyer puts no question and perhaps gets
the animal the cheaper. But if he asks for a carriage horse
or a horse to carry a female or a timid and infirm rider, he
who knows the qualities of the animal and sells, undertakes
on every principle of honesty that it is fit for the purpose in-
dicated. The selling upon a demand for a horse with par-
ticular qualities, is an affirmation that he possesses those qual-
ities.” &

So where a horse is bought for a particular purpose known
to the seller, a representation that he is “‘all right,” relied on
by the purchaser, is a warranty not only of soundness, but of
fitness for the use intended.** But one selling a horse as safe
and kind and a good family horse was held not to be liable
to the purchaser’s wife for injuries received in driving where
there was evidence that he supposed the horse was to be used
exclusively by the husband in his business, and none to show

” Copeland v. Hamilton, 9 Ma. 143.

® Howlett v. Haswell, 4 Camp. 118.

“Rex v. Pywell, 1 Stark. 325.

“Best, C. J., in Jones v. Bright, 5 Bing. 533, 544 (obiter dictum) ;
Oliph. Horses (5th ed.) 115.

A sale and warranty to one who the seller knows is purchasing for an-
other are in effect a sale and warranty to the latter: Darden v. Oneal
(Tenn.), 35 S. W. Rep. 1095. As to a sale of an unborn foal “with all
its racing engagements,’ see Corrigan v. Coney Island Jockey Club, 61
N. Y. Super. Ct. 393.

“@ Smith v. Justice, 13 Wis. 600. And see McClintock v. Emick, 87
Ky. 160; Ingram v. Sumter Music House, 51 S. C. 281; Danforth v.
Crookshanks, 68 Mo. App. 311.

ANIMALS BOUGHT FOR A SPECIAL PUMPOSE. 81

that he expected the wife to rely upon his representations to.
the husband.®?

A warranty on the sale of a horse of a certain breed is to.
be interpreted with reference to that breed, and if the horse
has the capacity of a good foal-getter of that breed, the war-
ranty is fulfilled, though the potency of that breed is much
less than that of other breeds.£8 So where a horse warranted
to be an “imported Clydesdale” is sold for breeding purposes,
there is no implied warranty of fitness for such purposes.®®
And where a bull is purchased for breeding purposes to the
seller's knowledge, both parties being alike destitute of the
means of forming an intelligent judgment as to the ability
to generate, and there is no misrepresentation or fraud or ex-
press warranty, no warranty can be implied.”°

On the other hand, it has been held that where producers
of and dealers in horses for breeding purposes sell one to a
person who, to their knowledge, wishes him for such pur-
poses, there is an implied warranty that the horse is reason-
ably fit for such purposes;7! and that he is not prevented
through illness, weakness or other infirmities from being able
to exercise his breeding qualities.”* And a warranty that a
stallion is “sound and healthy and, with proper handling, a
foal-getter,” was held to be a warranty that he could do:

"Carter v. Harden, 78 Me. 528. And see Adams v. Snyder (Kan.
App.), 55 Pac. Rep. 498.

® Glidden v. Pooler, 50 Ill. App. 36.

A bill of sale merely guaranteeing a stallion to be a breeder excludes:
a guarantee of his being pure-bred: First Nat. Bk. v. Hughes (Cal.), 46
Pac. Rep. 272.

* Taylor v. Gardiner, 8 Ma. 310. And see Scott v. Renick, 1 B. Mon.
(Ky.) 63.

* McQuaid v. Ross, 85 Wis. 492. And see White v. Stelloh, 74 id. 435,.
cited in § 27, supra.

But where the seller knew the bull to be without power of propagation
and did not disclose that fact, he is liable in an action of deceit: May-
nard v. Maynard, 49 Vt. 297.

™ Merch. & Mech.’s Sav. Bk. v. Fraze, 9 Ind. App. 161.

” Budd v. McLaughlin, 10 Ma. 75.

6

82 SALE AND MORTGAGE.

reasonable service as a foal-getter and not to be satisfied
where eight mares out of fifty-five served were gotten with
foal.78

29. Sale for Food—If one who sells an animal, knowing that
the purchaser buys it for immediate slaughter and consump-
tion, is aware or has reason to suspect that it is in a diseased
and unwholesome condition, though the disease is not visible
externally, he is bound to disclose the fact to the purchaser.
So in the sale of a quarter of beef from an animal slaughtered
for fear she would die, the fact that this was concealed from
the purchaser was held equivalent to a false suggestion that
she was sound, and the seller was liable for the deceit.7> But
the seller of unwholesome beef is not liable in deceit unless he
knew of the unsoundness.*® And where a farmer bought at
a market a dead pig for consumption and left it hanging up
and another person bought it from him without any warranty
and it did not appear that any secret defect was known to the
parties, it was held that no warranty of soundness was im-
plied.77 “The vendor was not a dealer in meat, did not know
that it was unfit for food, and the case was not that of a per-
son to whom an order is sent-and who is bound to supply a
good and merchantable article.” 78

But there is an implied warranty in the sale of hogs pur-
chased for market that they are fit for that purpose, when the
purchaser has no opportunity of inspection and trusts to the
judgment of the seller to select them, both parties under-

® McCorkell v. Karhoff, 90 Ia. 545. And see Brown v. Doyle, 69 Minn.
543. Where a stallion is warranted to be a “sure foal-getter,” evidence
may be given of what is the reasonable or usual percentage of mares that
a good or sure foal-getter will get with foal: Ibid.

* Divine v. McCormick, 50 Barb. (N. Y.) 116.

® Van Bracklin v. Fonda, 12 Johns (N. Y.) 468.

* Emerson v. Brigham, 10 Mass. 197.

™ Burnby v. Bollett, 16 M. & W. 644. And see Emmerton v. Matthews,
7 H. & N. 586, where the seller was a general dealer; Benj. Sales § 663.

* Benj. Sales § 662.

SALE FOR FOOD. 83

standing for what they are intended.*® And one selling the
carcass of a hog at the highest market price for pork, im-
pliedly warrants that it is not a boar, if the buyer did not
know the fact.8°

But an implied warranty that meat is fit for food “does not
extend beyond the case of a dealer who sells provisions di-
rectly to the consumers for domestic use,” so would not apply
to the case of a farmer who sells a cow to retail butchers,
though he knows they buy her for the purpose of cutting her
up into beef for immediate domestic use.*?

After a butcher had given notice to a market-man that “the
weather was bad for killing and he should kill no hogs in that
weather unless ordered,” but, “if ordered, would kill and send
one to the market the next morning,” the market-man or-
dered of him a good hog to be killed that night and delivered
the next morning. It was held that, if he executed the order
with due care, he could recover the value of the pork as if
sound, although it spoiled during the night by reason of the
weather.®?

The offense of selling unwholesome provisions is made out
by proof of the sale of the flesh of an animal which the seller
knew to have a disease, the tendency of which is to affect the
flesh in any degree, though the taint is imperceptible to the
senses and eating the meat produces no apparent injury.*

” Best v. Flint, 58 Vt. 543. See Warren v. Buck, cited infra.

* Burch v. Spencer, 15 Hun (N. Y.) 504.

= Howard v. Emerson, 110 Mass. 320. And see to the same effect
Giroux v. Stedman, 145 id. 439; Goldrich v. Ryan, 3 E. D. Sm. (N. Y.)
324; Cotton v. Reed, 25 Misc. (N. Y.) 380; Needham v. Dial, 4 Tex. Civ.
App. 141; Hanson v. Hartse, 70 Minn. 282; Wiedeman v. Keller, 171 Ill. 93;
Warren v. Buck (Vt.), 42 Atl. Rep. 979. Contra, Hoover uv. Peters, 18
Mich. 51, where the warranty is held to extend to a case of sale “‘by a re-
tail dealer or any other person.”

° Mattoon v. Rice, 102 Mass. 236. ‘° Goodrich v. Peo., 19 N. Y. 574.

As to an indictment for selling diseased animals for food, see Moeschke
v. State (Ind. App.), 42 N. E. Rep. ro29.

A city has authority to pass ordinances requiring an ante-mortem in-
spection of animals intended to be slaughtered for food as well as those

84 SALE AND MORTGAGE.

30. Warranty by a Servant or Agent.—A servant of a private
owner of an animal who is authorized to sell it, has no implied
authority to give a warranty, nor, if he do so, will the master
be bound.84 It is otherwise if the owner is a dealer in such
animals; in that case he is bound by his servant’s warranty,
though contrary to his own directions,*° except where the
servant is employed simply to deliver the animal sold.*° The
reason of this rule is thus stated by Ashhurst, J., in Fenn v.
Harrison :87 “If a person keeping livery stables and having
a horse to sell, directed his servant not to warrant him and
the servant did nevertheless warrant him, still the master
would be liable on the warranty, because the servant was act-
ing within the general scope of his authority and the public
cannot be supposed to be cognizant of any private conversa-
tion between the master and servant; but if the owner of
horses were to send a stranger to a fair with express directions
not to warrant the horse, and the latter acted contrary to the
orders, the purchaser could only have recourse to the person
who actually sold the horse, and the owner would not be liable
on the warranty, because the servant was not acting within
the scope of his employment.”

The owner of a riding school who was in the habit of buy-
ing and selling horses was held to be bound by the warranty
of a servant entrusted with the selling of a horse.88 Huddle-
ton, B., said: “It is necessary to look at the position occupied
by the defendant. He kept a large riding school, owned a

which require a post-mortem inspection of the meal to be sold: New
Orleans v. Lozes (La.), 25 South. Rep. 979.

“Brady v. Todd, 9 C. B. N. S. 592; Bank of Scotland v. Watson, 1
Dow. 45.

“ Ibid.; Howard v. Sheward, L. R. 2 C. P. 148

The agent of a horse-dealer with authority to sell a breeding stallion
has implied authority to warrant him to be a “sure foal-getter:” First
Nat. Bk. v. Robinson, 105 Ia. 463.

“ Woodin v. Burford, 2 Cr. & Mee, 301.

"3 Term 757, 760. See, also, as to warranty by a livery-stable keeper
or his agent, § 107, infra.

* Baldry v. Bates, 52 L. T. N. S. 620.

WARRANTY BY A SERVANT OR AGENT. 85

number of horses and would consequently be buying and sell-
ing horses from time to time, and this fact would be known
to the public. It seems to me that although he may not be
said to have carried on the regular business of a horse dealer,
yet still, from the very routine of the business which he did
carry on, he must be taken to have been a person who dealt
in horses, and so a person within the meaning of the rule laid
down in Howard v. Sheward. I should be almost inclined to
hold, if it were necessary to do so, that a private gentleman,
known to have very extensive stables and who was continu-
ally buying and selling horses, would come within the rule.”

Where the owner puts his horse in the hands of a horse
dealer to sell and the latter warrants without authority, the
owner is bound, as he clothed the dealer with apparent owner-
ship.2? Where a livery stable keeper is authorized to sell, as
the owner’s agent, a horse left in the stable, and, after making
a void sale to himself, sells it to another as its owner and not
as agent, the purchaser takes no title as against the original
owner, the keeper not having attempted to execute his
agency.°?

It was said in Brady v. Todd,®! “When the facts raise the
question it will be time enough to decide the liability created
by such a servant as a foreman alleged to be a general agent,
or such a special agent as a person entrusted with the sale of a
horse in a fair or other public mart, where stranger meets
stranger, and the usual course of business is for the person in
possession of the horse and appearing to be the owner, to
have all the power of an owner in respect of the sale. The
authority may under such circumstances as are last referred
to be implied, though the circumstances of the present case
do not create the same inference.” And, in a later case, it
was accordingly held that a servant entrusted by a master with

* Taylor v. Gardiner, 8 Ma. 310.
° Witkowski v. Stubbs, 91 Ga. 440.
"9 C. B.N. S. 592, 606, cited supra.

86 SALE AND MORTGAGE.

the sale of a horse at a fair may have an implied authority to
warrant.”

Where the master is unwilling to stand to the servant's war-
ranty, he is bound to take the horse back and return the

money paid.%

31. What Amounts to a Warranty.—Where horses are de-
scribed in a bill of sale as “sound and kind,” this amounts to
an express warranty, especially where the purchaser has not
the peculiar means of knowing the facts which the seller pos-
sessed.°*# A representation made during the negotiation of
a sale of mules that they were “all right” is a warranty of
soundness. “No valid reason can be given why if A., in sell-
ing his horse to B., says, ‘I warrant him sound,’ it should be
held a warranty, but not if he says ‘he is sound.’” ®° So,
where the representation was that a horse was sound, straight
and all right, just such a horse as the buyer wanted, this was
held to be a warranty.°® And likewise, where it was repre-
sented that the buyer “may depend upon it the horse is per-
fectly quiet and free from vice;” °’ and where representations
as to the age and soundness of a horse were made privately
by an administrator to one who subsequently bought the
horse from him at an auction.®® If the seller says at the time
of sale, “I never warrant, but he is sound as far as I know,”
this is a qualified warranty and the purchaser may maintain

” Brooks v. Hassall, 49 L. T. N. S. 560, commented on in 18 Ir. L. T.
15, where it is said, ‘We assume that, as of course, such authority is
limited to where its exercise would be ‘required to complete the sale,’
in the words of Erle, C. J.,” citing Woodin v. Burford, supra. And see
Alexander v. Gibson, 2 Camp. 555, where the sale was at a fair.

*® Oliph. Horses (5th ed.) 126.

“ Hobart v. Young, 63 Vt. 363. Cf. Wason v. Rowe, 16 id. 525, cited in
§ 32, infra.

* McClintock v. Emick, 87 Ky. 160. And see Money v. Fisher, 92
Hun (N. Y.) 347; Riddle v. Webb, 110 Ala. 509; Zimmerman v. Brannon,
103 Ia. 144.

Murphy v. McGraw, 74 Mich. 318.

* Cave v. Coleman, 3 M. & R. 2. * Crossman v. Johnson, 63 Vt. 333-

WHAT AMOUNTS TO A WARRANTY. 87

an action, if he can show that the horse was unsound to the
seller's knowledge.®® So an affirmation that the horse was
not lame, accompanied by the owner’s declaration that he
would not be afraid to warrant him, was held to be a war-
ranty.1°° Where mares were described in a catalogue as “in
foal to,” “stinted to” or “served by” certain horses, these ex-
pressions were held to amount to a warranty.1° A public
statement by a seller of horses at auction that all those that
were not kind and safe to drive single would be specified at
the time of sale, is a warranty as to a horse sold without any
specification, the buyer relying on the statement.1°? The
buyer of horses under a written bill of sale simply reciting the
transfer with warranty of title may recover damages for false
oral representations of the seller as to their trotting qualities
and pedigree.1°

A warranty that a horse partly blind ‘‘was all right, except
he would sometimes shy,” was held to be substantially a war-
ranty that he was “sound.” !°* The seller’s statement that
a horse was “all right’’ was held, under the circumstances to
amount to a warranty that his eyes were sound.?9® Anda
representation that a horse was fourteen years old was held
to be a warranty that he was no older.°

“It may perhaps be true that proof of a warranty that a
horse was ‘well broke’ might include a warranty that he was
‘gentle,’ as the greater includes the less. But a declaration
that a horse was warranted gentle and that he proved to be
otherwise, is not supported by proof that he was not so
trained as to be suited to a particular kind of work. The
word ‘gentle’ does not, in its ordinary or legal sense, import

®° Wood wv. Smith, 4 C. & P. 4s.

*° Cook v. Moseley, 13 Wend. (N. Y.) 277.

*™ Gee v. Lucas, 16 L. T. N. S. 357.

Ingraham v. Union R. Co., 19 R. I. 356.

*8 McFarland v. McGill (Tex. Civ. App.), 41 S. W. Rep. 402.
** Kingsley v. Johnson, 49 Conn. 462.

** Little v. Woodworth, 8 Neb. 281.

** Burge v. Stroberg, 42 Ga. 88.

88 SALE AND MORTGAGE.

that the horse has received any particular training or teach-
ing, but only that he is docile, tractable and quiet.” 10%

The testimony by a purchaser of hogs at an auction that
he had made up his mind while looking at them before the
sale to buy some if they went cheap enough, is not conclusive
that the sale was without conditions as to health and sound-

ness, so as to prevent his recovering on an implied warranty
of their health.1°%

32. What Does Not Amount to a Warranty.—The statement
in a bill of sale that a horse is “considered sound” does not
amount to a warranty.1°® Nor is a statement in a circular
that a young stallion will ‘‘make his mark as a foal-getter” a
‘warranty that he will prove an ordinarily sure one, but is
merely an expression of belief as to what may be expected
of him in the future4° And a statement in a handbill ad-
vertising the sale of stock that certain shoats are “in good
‘health and condition” is not a warranty that they are in such
‘condition at the time of the sale three weeks after the posting
of the bill, as it “could, at most, only amount to an antecedent
representation of the quality and condition of the shoats as
they were when the bills were circulated; and this statement
‘could not be construed as any part of the contract subse-
quently entered into between plaintiff and defendant, unless
expressly made so at the time of sale.” 111

And where a horse was to be sold at auction without a war-
tanty, and the seller on the day before the auction said to the
purchaser who was looking at the animal’s legs, “You have
nothing to look for; I assure you he is perfectly sound in every
respect,” and the purchaser replied, “If you say so, I am per-
fectly satisfied,” and on the faith of this representation bought
the horse, it was held that there was no warranty.!!*

* Bodurtha v. Phelon, 2 Allen (Mass.) 347.

*8 Powell v. Chittick, 89 Ia. 513. *° 'Wason v. Rowe, 16 Vt. 525.

™° Roberts v. Applegate, 153 Ill. 210, affirming 48 Ill. App. 176.

™ Ransberger v. Ing, 55 Mo. App. 621.

*" Hopkins v. Tanqueray, 15 C. B. 130. So as to the statement of a

WHAT DOES NOT AMOUNT TO A WARRANTY. 89

A bare affirmation of soundness, etc. not amounting to a
warranty unless it is intended to have that effect, there is no
warranty where an auctioneer says, “Here is a nice lot of
young, sound sheep;” 18 nor where it is stated of diseased
sheep, “They appear to be healthy and are doing well;” 114 nor
where the seller asserts that he is sure the mare is safe and
kind and gentle in harness ;!!5 nor where one sells a horse as
of the age stated in a written pedigree, declaring that he
knows nothing of the horse but what he has learned from the
pedigree ;71®° nor where the seller states that the horse’s eyes
are as good as any horse’s eyes in the world.117

Where on an exchange of horses the defendant delivered
one to the plaintiff, saying, “If it don’t suit you, bring it back,”
and the horse was returned as a “kicker” and the defendant
showed another, saying, “This is your horse; exactly the
horse you want. ... If you are satisfied, take the horse
home,” there was held to be no warranty against the horse’s
taking fright at an electric street car.148 Where a horse is
described as a “gray four year old colt, warranted sound,” the
warranty is confined to the soundness, the age being merely
matter of description.1!®

33. What Constitutes Unsoundness, Ete.—It was held by Lord
Coleridge, in Bolden v. Brogden,!*° that a slight disorder in

hhorse’s age in a supplemental catalogue of sale, where the catalogue
proper stated that the ages were approximate but not warranted: Henry
-v. Salisbury, 14 N. Y. App. Div. 526.

™8 McGrew v. Forsythe, 31 Ia. 170.

™ Tewkesbury v. Bennett, 31 Ia. 83.

™ Jackson v. Wetherill, 7 S. & R. (Pa.) 480. And see McFarland v.
Newman, 9 Watts (Pa.) 55; Holmes v. Tyson, 147 Pa. St. 305; Hardy v.
Anderson, 7 Kulp (Pa.) 396; Wilson v. Turnbull, 23 Rettie (Sc. Ct. Sess.)
714.

™§ Dunlop v. Waugh, Peake, 123.

™ House wv. Fort, 4 Blackf. (Ind.) 293.

"8 Meyer v. Krauter, 56 N. J. L. 606.

™ Budd v. Fairmaner, 8 Bing. 48. And see Richardson v. Brown, I
‘id. 344; Willard v. Stevens, 24 N. H. 271.

92 M. & Rob. 113. And see Garment v. Barrs, 2 Esp. 673, where it

90 SALE AND MORTGAGE.

a horse at the sale not calculated to diminish permanently his
usefulness, and from which he ultimately recovers, is not an
unsoundness. The horse in that case had influenza but recov-
ered before the trial. This opinion, however, is opposed to
that universally held at present. Lord Ellenborough said in
Elton v. Jordan: “To constitute unsoundness, it is not es-
sential that the infirmity should be of a permanent nature; it
is sufficient if it render the animal for the time unfit for service,
as, for instance, a cough, which for the present renders it less
useful, and may ultimately prove fatal. Any infirmity which
renders a horse less fit for present use and convenience is an
unsoundness.” 141

So in Coates v. Stephens,!”2 Parke, B., said: “I have al-
ways considered that a man who buys a horse warranted
sound, must be taken as buying for immediate use and has a
right to expect one capable of that use, and of being imme-
diately put to any fair work the owner chooses. The rule as
to unsoundness is that, if at the time of the sale the horse has
any disease, which either actually does diminish the natural
usefulness of the animal, so as to make him less capable of
work of any description, or which, in its ordinary progress,
will diminish the natural usefulness of the animal; or if the
horse has, either from disease or accident, undergone any al-
teration of structure, that either actually does at the time, or
in its ordinary effects will, diminish the natural usefulness of
the horse, such a horse is unsound.” And he said in Kiddell
v. Burnard,?*8 “TI think the word ‘sound’ means what it ex-
presses, namely, that the animal is sound and free from disease
at the time he is warranted to be sound. If, indeed, the dis-
ease were not of a nature to impede the natural usefulness of

was held that a horse is not unsound because he labors under temporary
injury from an accident, as here from lameness in one leg.

™ 1 Stark. 102, And he spoke to the same effect in Elton v. Brogden,
4 Camp. 281. See also Kornegay v. White, 10 Ala. 255 (the case of a
slave).

2M. & Rob. 157. And see Scholefield v. Robb, Ibid. 2ro.

“oO M. & W. 668.

WHAT CONSTITUTES UNSOUNDNESS. 91
the animal for the purpose for which he is used, as, for in-
stance, if a horse had a slight pimple on his skin, it would not
amount to an unsoundness; but even if such a thing as a pim-
ple were on some part of the body where it might have that
effect, as, for instance, on a part which would prevent the put-
ting of a saddle or bridle on the animal, it would be different.
An argument has, however, been adduced from the slightness
of the disease and facility of cure; but if we once let in con-
siderations of that kind, where are we to draw the line? A
horse may have a cold which may be cured in a day, or a fever
which may be cured in a week or month; and it would be
difficult to say where to stop. Of course, if the disease be
slight, the unsoundness is proportionably so, and so also
ought to be the damages.”

And in an American case it is said: ‘““Any disease, infirmity
or defect which renders the horse less fit for present use and
convenience and not openly and palpably visible, and which
is discoverable only by persons of skill and judgment in re-
gard to the qualities of horses, constitutes an unsound-
ness.” 124
. But a temporary injury which does not affect a horse's fit-
ness for present service is not an unsoundness.1?°

In the case of a slave it was said that “unsoundness con-
sists in some organic disease in a formed state, evidenced by
symptoms, or some clearly contagious disease, such as measles
or small-pox, the infection of which existed in the system at
the time of the sale,” and it was therefore held that the ques-
tion was correctly put to the jury whether he had typhoid
fever at the time of the sale and that the inquiry proposed to be
made of the doctors as to how long the disease had existed
in its incipient state, was properly overruled.1#® But in a
later case this rule that “the disease must be in a formed state,

™ Burton v. Young, 5 Harr. (Del.) 233.

Roberts v. Jenkins, 21 N. H. 116; Springsteed v. Lawson, 14 Abb.
Pr. (N. Y.) 328.

¥ Stephens v: Chappell, 3 Strobh. (S. C.) 80.

92 SALE AND MORTGAGE.

evidenced by symptoms,” was said to apply only to cases of
fever having no fixed law for their commencement, and it was
held that where the disease is a chronic one, like rheumatism,
it is not necessary to show that the symptoms existed at the
time of the sale, as subsequent incidents and appearances may
show that the disease existed before the sale, although the
symptoms had not then been observed. And it is an un-
soundness where, though the purchaser is aware of the dis-
ease, yet its precise character not being obvious to the senses,
its extent is uncertain and unknown.1*8

If a habit is decidedly injurious to an animal’s health and
tends to impair his usefulness, it comes within the definition
of a “vice.” 179

A declaration for breach of warranty in which it is not al-
leged wherein the unsoundness consists is bad on demurrer
but cured by verdict.18° Where the plaintiff alleged that the
animals were totally worthless on account of glanders, men-
tioning no other disease, it was held that proof of any other
disease would not warrant a recovery.1*}

The plaintiff must positively prove that the animal was un-
sound,!8 and that it was so at the time of the sale.13% But

* Crouch v. Culbreath, 11 Rich. L. (S. C.) 9. And see Fondren v.
Durfee, 39 Miss. 324, following Shewalter v. Ford, infra. So, where an
hereditary disease exists in sheep which is incapable of discovery till its
appearance: Joliff v. Bendell, Ry. & Mo. 136; and where a horse has the
seeds of glanders, though the disease does not develop till some time
after the sale: Woodbury v. Robbins, 10 Cush. (Mass.) 520. And see
Bristol v. Galway, infra.

“8 Shewalter v. Ford, 34 Miss. 417. And see Chadsey v. Greene, 24
Conn. 562; Perdue v. Harwell, 80 Ga. 150; Storrs v. Emerson, 72 Ia. 390,
cited in § 27, supra.

*° Scholefield v. Robb, 2 M. & Rob. 210.

*° Martin v. Blodget, 1 Aik. (Vt.) 375.

*1 Snowden v. Waterman, 100 Ga. 588.

™ Eaves v. Dixon, 2 Taunt. 343.

“Miller v. McDonald, 13 Wis. 673. Expert testimony is admissible
some months after the sale to show that the alleged unsoundness was of a

nature to indicate its existence at the time of sale: Bristol v. Galway, 68
Conn. 248.

WHAT CONSTITUTES UNSOUNDNESS. 93

the question of unsoundness is one peculiarly fit for the jury
and the court will not set aside a verdict on account of a pre-
ponderance of contrary evidence.'**

34. Specific Forms of Unsoundness.—Mere badness of shape
though rendering a horse incapable of work is not unsound-
ness. “As long as he was uninjured, he must be considered
sound. When the injury is produced by the badness of his
action, that injury constitutes an unsoundness.” 135 There-
fore, a defective formation which has not produced lameness
at the time of the sale, though it may render the horse more
liable to become lame at some future time (as, for example,
“curby-hocks” or thin soles) is not an unsoundness.13° But
a malformation of a less obvious kind existing from birth and
rendering the horse less fit for reasonable use at the time of
sale, such as an extraordinary convexity of the cornea of the
eye, producing short-sightedness, as a result of which the ani-
mal is liable to shy, has been held an unsoundness.!**_ So is
the want of an eye,!88 and a cataract,!89 and glaucoma.1*°
And the plaintiff has been held not guilty of contributory
negligence so as to defeat recovery where he uses the animal
so as to increase the injury to the eye.1#

Temporary lameness rendering a horse less fit for present
service is an unsoundness.142 So a horse is unsound when
one of its legs is weaker than the others.14% It is said, how-
ever, in a Massachusetts case: ‘“Lameness may or may not

** Lewis v. Peake, 7 Taunt. 153.

** Dickinson v. Follett, 1 M. & Rob. 299.

** Brown v. Elkington, 8 M. & W. 132; Bailey v. Forrest, 2 C. & K. 151.

*7 Holliday v. Morgan, 1 El. & El. 1.

*§ Butterfield v. Burroughs, 1 Salk. 211; House v. Fort, 4 Blackf. (Ind.)
293.

*° Higgs v. Thrale, Oliph. Horses (5th ed.) 67.

Settle v. Garner, Oliph. Horses 81.

Riddle v. Webb, 110 Ala. 599.

*” Elton v. Brogden, 4 Camp. 281, per Lord Ellenborough.

“8 Elton v. Jordan, 1 Stark. 102. And see the extract from Lord Ellen-
borough’s charge in § 33, supra.

94 SALE AND MORTGAGE,

make a horse unsound. If it was only accidental and tem-
porary, it would not be a breach of warranty; but if it was
chronic and permanent, arising from causes which were be-
yond the reach of immediate remedies, it would be clearly a
case of unsoundness.” 144 Lord Ellenborough’s rule is,
doubtless, the better one.

Crib-biting has been held not to be an unsoundness, the
court saying: “It is a curable vice in its first stages, and this
horse was only proved to be an incipient crib-biter. It isa

mere accident arising from bad management in the training ° °°

of a horse, and is no more connected with unsoundness than
starting and shying.” 14° Where it has not yet produced dis-
ease or alteration of structure, though not an unsoundness,
it is a vice.4® But in an American case it was held that
where it affected the health and condition of a horse so far as
to render him less able to perform service and of less value, it
was an unsoundness.'47

A cough at the time of the sale, if it renders the horse less
useful, is an unsoundness ;}48 otherwise, of a cold that does
not affect his general health.149

Roaring was held not to be an unsoundness in a horse un-
less it were shown to proceed from some disease or organic
defect.1°° But in a later case Lord Ellenborough held roar-

“ Brown v. Bigelow, to Allen (Mass.) 242.

™ Broennenburgh v. Haycock, Holt, 630. Kicking is also a vice:
‘Oliph. Horses (5th ed.) 83.

™ Scholefield v. Robb, 2 M. & Rob. 210, cited also in § 33 supra, q. V.;
Paul v. Hardwick, 1 Chit. Contr. 11th Am. ed. 655; Oliph. Horses 76.

“’ Washburn v. Cuddihy, 8 Gray (Mass.) 430. See Walker v. Hois-
ington, 43 Vt. 608, where the point is left undecided.

In Hunt v. Gray, 35 N. J. L. 227, 234, it is said: “In some of the Eng-
lish decisions it is held that this is a vice, and not an unsoundness. It
would appear that the learned on this subject are not entirely agreed.”

“Lord Ellenborough in Elton v. Jordan, 1 Stark. 102, quoted in § 33,
supra, q. v.; Coates v. Stephens, 2 M. & Rob. 157. And see Shillitoe v.
Claridge, 2 Chit. 427.

™ Springsteed v. Lawson, 14 Abb. Pr. (N. Y.) 328. And see Bolden v.
Brogden, 2 M. & Rob. 113.

*™ Bassett v. Collis, 2 Camp. 523, per Lord Ellenborough.

SPECIFIC FORMS OF UNSOUNDNESS. 95

ing to be an unsoundness, saying: “If a horse be affected by
any malady which renders him less serviceable for a per-
manency, I have no doubt that it is an unsoundness; I do not
go by the noise, but by the disorder.” 4° And whistling has
been held to constitute a breach of a warranty that a horse is
a “good hunter,” though it does not actually interfere with
his peace and endurance.1°?

Bone spavin in the hock is an unsoundness whether it pro-
duces lameness apparent at the time of the warranty or not,
and though it may not produce lameness for years after-
ward.158

The want of castration in a male mule is not an unsound-
ness ;!°4 nor is the pregnancy of a mare.155

A nerved horse (nerving consisting in the division of a
nerve leading from the foot up the leg to relieve the animal
from the pain caused by a foot-disease) is unsound.15¢

A warranty that a horse is “sound and kind in every re-
spect” is broken if it is in the habit of making sudden plunges
without cause.157 And a warranty that a horse is “sound and
right” means that he is right in conduct as to all matters ma-
terially affecting his value as well as in physical condition.15§
Proof that a horse is “a good drawer” only will not satisfy a
warranty that he is ‘a good drawer and pulls quietly in har-
ness.” “The word ‘good’ must mean ‘good in all particu-
Jars.’ ’” 159

‘

™ Onslow v. Eames, 2 Stark. 72.

King v. Cave, Co. Ct. case, cited in 18 Ir. L. T. 91.

*8 Watson v. Denton, 7 C. & P. 85. Cf. Hoffman v. Oates, 77 Ga. 701,
cited in § 27, supra.

* Duckworth v. Walker, 1 Jones L. (N. C.) 507.

* Whitney v. Taylor, 54 Barb. (N. Y.) 536.

*° Best v. Osborne, Ry. & Mo. 290.

*” Hall v. Colyer, 8 N. Y. Suppt. 801.

See as to the meaning of “quiet to drive,” Wilson v. Turnbull, 23 Rettie
(Sc. Ct. Sess.) 714. As to evidence that a pony is not “gentle,” see Haf-
ner v. McCaffrey, 43 N. Y. Suppt. 270.

** Walker v. Hoisington, 43 Vt. 608.

*° Coltherd v. Puncheon, 2 D. & R. 10.

96 SALE AND MORTGAGE.

A horse whose stumbling requires the constant remedy of
a certain method of shoeing not disclosed by the seller or dis-
coverable by the purchaser using reasonable skill, is not ‘'sure-
footed” within the meaning of a warranty.’®

Among the disorders held to amount to unsoundness may
be mentioned diseases of the lungs ;!®' thick wind, proceeding
from inflammation ;1® rot or tick;!®* broken wind;!** the
“navicular disease ;” 1° ossification of the cartilages ;1°* lam-
initis or alteration of the structure of the feet.’®

35. Return on Breach of Warranty.—On the breach of a war-
ranty of soundness, the seller is liable to an action without
either the animal being returned or notice given of the un-
soundness ;!®§ even where the horse was kept and used for
nine months and was medically treated during that time.®
But the seller is not bound to take the animal back again un-
less there has been an express agreement to that effect or
the contract is tainted with fraud or has been mutually re-
scinded, and, except in such cases, the purchaser cannot resist
an action for the price otherwise than by setting up the breach

*° Morse v. Pitman, 64 N. H. 11.

Occasional stumbling is not an unsoundness: Lenoir v. Mandeville, 12
Rev. Leg. (Can.) 369.

** Hyde v. Davis, Oliph. Horses (5th ed.) 85. * Oliph. Horses 98.

*® Drolet v. Laferriére, 12 Rev. Leg. (Can.) 350.

Willan v. Carter, cited in Oliph. Horses (sth ed.) 70.

** Huston v. Plato, 3 Colo. 402; Matthews v. Parker, Oliph. Horses 86.

7° Simpson v. Potts, Oliph. Horses 87.

“Hall v. Rogerson, Oliph. Horses 85; Smart v. Allison, Ibid.

As to corns, see Alexander v. Dutton, 58 N. H. 282.

As to a horse being chest-foundered, see Atterbury v. Fairmanner, 8
Moo. 32.

See the list of disorders held to constitute unsoundness in the sale of a
horse in Oliph. Horses (5th ed.) Part I, Ch. IV.

“ Fielder v. Starkin, 1 H. Bl. 17; Oliph. Horses 157; Nauman v. UIl-
man (Wis.) 78 N. W. Rep. 159.

*® Patteshall v. Tranter, 4 N. & M. 649. And see Humbert ¢. Larson,
99 la. 275.

RETURN ON BREACH OF WARRANTY. 97

of warranty in reduction of damages.!7° But where the de-
fendant had agreed to buy a pair of horses if they were passed
as sound by a veterinary surgeon, and the latter had, without
the defendant’s knowledge, been promised a commission by
the owner if a sale was effected, after which he certified the
horses to be sound, it was held, in an action for the price—the
defendant having rejected the horses and stopped the pay-
ment of his check, that it was immaterial to consider whether
the surgeon had or had not been influenced by the promise of
a commission, and that the plaintiff could not recover the
amount of the check.1**_ Where the purchaser has the right
to return an animal, that right is unaffected by an accident
having happened to it while in his possession, without neglect
or default on his part.17? The return is not necessary, how-
ever, where a horse has been so far injured as to have lost all
use as a horse.178 And if the horse dies before the time fixed

*° Oliph. Horses: 157. And see Trumbull v. O’Hara (Conn.), 41 Atl.
Rep. 546.

*4 Shipway v. Broadwood, 80 L. T. N. S. 11.

*? Head v. Tattersall, L. R. 7 Ex. 7, where it was also held that a casual
conversation with the seller's groom beiore the buyer took away the horse,
in which the latter was informed of the breach of warranty, did not de-
prive him of his right under the contract to return the horse.

*8 Chapman v. Withers, 20 Q. B. D. 824.

In 32 Solic. Journ. 520, commenting on this case, it is said: “It had al-
ready been decided in Head v. Tattersall . that horses were so far
an exception to ordinary goods that a condition for return did not re-
quire them to be returned in the same condition as when taken away,
but could be satisfied although they had been damaged by an accident
not arising from the purchaser’s default. The present case goes further
and says that the return itself is not necessary, if the animal has been so
far injured as to have lost all use as a horse. Perhaps the result of the
decision is better than the reasoning. This latter implies that if the horse
is at all capable of being removed without fatal injury, the actual return
within the time appointed must be made. In other words, in any case of
serious injury the purchaser must inflict on the horse the cruelty of trav-
elling or must run the risk of losing his action on the warranty. Surely
it would have been better to interpret the condition as being for a return
within two days, or as soon thereafter as possible, rather than to have ex-
cused-the return altogether on the ground that the horse was practically
dead.”

7

98 SALE AND MORTGAGE.

for his return, that fact will not prevent recovery in an action
for breach of warranty.1** So where the purchaser has an op-
tion to rescind in a certain time, he may rescind on the death
of the horse within that time and need not return the car-
cass.175

Where the contract is to supply a horse fit for a certain pur-
pose and he does not answer that purpose, the buyer may re-
scind the contract, if he has not kept the horse longer than
necessary for a reasonable trial, or acted as its owner, as by
selling it.17* And where one purchased a horse warranted
sound, sold it again and then repurchased it, he cannot, on
discovering its original unsoundness, compel the seller to
take it back.177 But where the horse has been offered to the
seller and refused, the buyer’s right to recover is not affected
by his having sold it after the offer.17® The seller is entitled
in all such cases to notice of the failure of the conditions of
warranty and the burden is on the purchaser to show such
failure.17?

The sale of a horse under warranty with a provision that
the purchaser “can return it’? and receive another in exchange
was held to entitle the purchaser, upon breach, either to re-
tain the horse and recover damages or return him and receive
another horse in exchange.!®°

36. Damages on Breach__—The measure of damages for the
breach of warranty of an animal is the difference between its
actual market value at the time of sale and its value if it had

4 Moore v. Emerson, 63 Mo. App. 137.

*° Lyons v. Stills, 97 Tenn. 514. *° Oliph. Horses (sth ed.) 157.

7 Street v. Blay, 2 B. & Ad. 456.

“° Buchanan v. Parnshaw, 2 Term 745, where it was held that, where a
horse was warranted to be sound and six years old and a condition of
sale was that it should be deemed sound unless returned within two days,
the latter provision applied only to the warranty of soundness, not to that
of age.

*° Beckett v. Gridley, 67 Minn. 37.

™ Love v. Ross, 89 Ia. goo. And see Eyers v. Haddem, 70 Fed. Rep.
648.

DAMAGES ON BREACH. 99

been as represented, including the keep and other reasonable
expense, such as medical attendance, etc.18! And this rule is
not affected by proof that the purchaser subsequently resold
it at an increased price ;'*? or that it was worth the price paid
for it."8° But the purchaser cannot recover for expenditures
made after he ought as a man of reasonable judgment to have
become satisfied that the animal was worthless and that its
disease was incurable.1®* On the breach of warranty ofa stal-
lion as a “‘sure colt-getter,” it was held that the purchaser
could recover for the reasonable expense of advertising, keep-
ing and standing the horse during the season and prior to dis-
covering his condition.18® But where a horse had been
bought in the country and brought to London and, after dis-
covery of the breach of warranty, tendered to the seller and
sold at auction, it was held that the buyer could not recover
for the expense of obtaining a certificate of unsoundness from
a veterinary college or of counsel’s opinion, as they were no
part of the necessary expenses, but were merely for the plain-
tiffs own comfort and to convince him he could bring an
action in safety, but that he could recover for the expense of
bringing the horse up to London and of its keep.18® Where
the plaintiff was compelled to purchase cattle in place of those
lost by the defendant’s deceit, and expenses of delay were in-
volved, those matters were legal items of damage.18”

™ Caswell v. Coare, 1 Taunt. 566; Murry v. Meredith, 25 Ark. 164;
Miller v. Law, 44 Ill. App. 630; Love v. Ross, 89 Ia. 400; Schee uv. Shore,
6 Kan. App. 136: Williamson v. Brandenberg, 133 Ind. 594; Sharpe v.
Bettis (Ky.), 32 S. W. Rep. 395; Hobbs v. Bland (N. C.), 32 S. E. Rep.
683; Snyder v. Baker (Tex. Civ. App.), 34 S. W. Rep. 98r.

*’ Brown v. Bigelow, 10 Allen (Mass.) 242; Berry v. Shannon (Ga.),
25S. E. Rep. 514.

*8 Douglass v. Moses (Ia.), 65 N. W. Rep. 1004.

™ Murphy v. McGraw, 74 Mich. 318.

* Short v. Matteson, 81 Ia. 638. And see Suttle v. Hutchinson (Tex.
Civ. App), 31 S. W. Rep. 211; National Horse Importing Co. v. Novak,
95 Ia. 506.

*6 Clare v. Maynard, 7 C & P. 741.

*T Sellar v. Clelland, 2 Colo. 532, where it was also held that where the
cattle were lost by disease in an uninhabited country, evidence might be

100 SALE AND MORTGAGE.

If the animal is not tendered back to the seller, the pur-
chaser cannot recover for the expense of its keep.18§ This
expense should cover only a reasonable time before resale.1®9
Where the animal is returned the measure of damages is the
price paid for it.19° And there may be cases where the pur-
chaser, without a return, may recover the cost, as where a
horse, warranted to be sound and just the kind of animal the
purchaser wanted for a driving horse, proved to have an in-
curable disease of the feet which rendered him worthless for
that purpose.!%!

Where the horse was warranted to be kind, it was held in a
Massachusetts case that the purchaser could not recover in
tort for damages to a wagon and harness in consequence of
the breach.1°? But in a New York case this case was com-
mented on as “not being easy to understand,” and it was held
that where a horse, warranted to be gentle and kind and suit-
able to drive in a light wagon, runs away while being so
driven, the warrantor is liable for the loss of the wagon and
the buyer’s injuries, though the warranty was not fraudu-
lently made.’®* On the other hand, it was held in an Ala-
bama case that, on the breach of a warranty of gentleness,
damages could not be recovered for injuries received by the
horse’s running away where it was not shown that the seller
knew or had reason to believe that he was vicious or unsafe,

given of their market value in several markets nearest the place where
they were lost.

** Caswell v. Coare, 1 Taunt. 566. And see Ford vr. Oliphant (Tex.
Civ. App.), 32 S. W. Rep. 437; Elwood v. McDill, 105 Ia. 437.

Ellis v. Chinnock, 7 C. & P. 169; Chesterman v. Lamb, 4 N. & M.
195; McKenzie v. Hancock, Ry. & Moo. 436; Huston v. Plato, 3 Colo.
402.

*” Caswell v. Coare, 1 Taunt. 566.

™ Murphy v. McGraw, 74 Mich. 318.

™ Case v. Stevens, 137 Mass. 551.

** Bruce v. Fiss, Doer & Carroll Horse Co., 26 Misc. (N. Y.) 472,—on
the ground that damages to person and property from the horses running
away must have been in the minds of the parties as likely to occur if the
warranty proved untrue. See, also, Allen v. Truesdell, 135 Mass. 75.

DAMAGES ON BREACH. 101

or that the affirmation of gentleness was of such a reckless
character as to amount to bad faith.°* An expert may tes-
tify to the effect of the unsoundness in diminishing the value
of an animal of given characteristics.

Damages based on profits that would have been made if the
animal had been as warranted are too remote and speculative
to be recovered.’°® Thus, the prospective gains from the
services of a horse warranted as a sure foal-getter cannot
be recovered unless there were outstanding contracts for
such services at the time of sale, known to the seller, and the
purchase was made with reference thereto.1°’ And the pur-
chaser cannot recover for the loss of a bargain for the resale
of the animal, though the contract of resale at a profit had
been actually completed before the unsoundness was discov-
ered.1°§ But where a bull bought for breeding purposes was
known by the seller to be without power of procreation, the
purchaser may recover in an action of deceit for the diminu-
tion in value of his dairy and may testify that his cows pro-
duced less butter than customarily.1°

In an action for the breach of a warranty it was held that
the court had no power to order that the defendant have the
privilege of sending a veterinary surgeon into the plaintiff's
stable to examine the horse.?°

37. Mortgage of Animals and Their Increase——The law re-
lating to Chattel Mortgages is, of coure, applicable to prop-
erty in animals, but, as was said before, we shall discuss here
only such parts of it as are peculiar to this kind of property.

A description in the mortgage which will enable a third
person, aided by inquiries which the instrument itself sug-

™ Jones v. Ross, 98 Ala. 448.

*® Miller 7. Smith, 112 Mass. 470.

* Love v. Ross, 89 Ia. 400; Williamson v. Brandenberg, 133 Ind. 594.
* Glidden v. Pooler, 50 Ill. App. 36.

8 Clare v. Maynard, 6 A. & E. 519.

Maynard v. Maynard, 49 Vt. 207.

* Martin v. Elliott. 106 Mich. 130.

102 SALE AND MORTGAGE.

gests, to identify the animal or animals is, in general, suffi-
cient.2°! Thus, a description embracing all a mortgagor's
stock, or all in a certain place, may be in other respects vague
and uncertain.2°2 And a description of a number of sheep
“now in” a certain county is sufficient, where sheep are often
driven from one county to another.?°* But a description of
“sixty head of two and three-year-old steers and forty head
of yearling steers” was held too indefinite to give notice of a
lien on any particular steers. “There is no suggestion that
the steers were all the steers of that age which the mortgagor
owned in that township and, if he had others, the mortgage
would apply equally to all.” 2°*

Where a horse is accurately described, the mere fact that it
was not found at the place where the mortgage recited it was,
will not vitiate the instrument.2°> But in a mortgage of cattle
and their increase in which they were described separately,
the color, age and name being given, but no statement as to
the present or past ownership of the property, nor of the
place where it was then or had been kept, the description was
held insufficient.?°° ‘

A mortgage of “two cows” where the mortgagor had six
was held void for indefiniteness, the description not indicating

2. Jones Chat. Mort. (4th ed.) 62; Scrafford v. Gibbons, 44 Kan. 533;
Waggoner v. Oursler, 54 id. 141; Rhutasel v. Stephens, 68 Ia. 627; Buck
v. Young, 1 Ind. App. 558; Schneider v. Anderson (Minn.), 79 N. W.
Rep. 603; Jennings v. Sparkman, 39 Mo. App. 663; Bozeman v. Fields,
44 id. 432; Buck v. Davenport Savings Bk., 29 Neb. 407.

A fortiori is this true where third parties are not involved: Ranck v.
Howard-Sansom Co., 3 Tex. Civ. App. 507.

*@ Evans-Snyder-Buell Co. v. Turner, 143 Mo. 638; Desany v. Thorp
(Vt.), 39 Atl. Rep. 309; Crisfield v. Neal, 36 Kan. 278; Fisher v. Porter
(S. D.), 77 N. W- Rep. 112.

78 Alferitz v. Ingalls, 83 Fed. Rep. 964.

** Caldwell v. Trowbridge, 68 Ia. 150. And see, to the same effect,
Huse v. Estabrooks, 67 Vt. 223, where, though it was not found that the
mortgagor owned more heifers of the ages mentioned, the contrary did
not appear.

*° Jones v. Workman, 65 Wis. 269. * Warner v. Wilson, 73 Ia. 719.

See as to a description by the names in a Herd Book, Taylor z. Gil-
bert, 92 id. 587: Boone City Bank wv. Ratkey, 79 id. 275.

MORTGAGE OF ANIMALS AND THEIR INCREASE. 103

the line of inquiry and furnishing a basis for identification?”
On the other hand, a description of “a brindle cow about three
years old,” was held sufficient to put a party intending to pur-
chase it on inquiry, although the mortgagor had two cows
answering to such description.2°® And it was held by the
Supreme Court of the United States that a mortgage cover-
ing a specified number of sheep out of a larger number owned
by the mortgagor, there being no means of identification, was.
valid as against a subsequent mortgagee having knowledge of
the facts, though not as against third persons with acquired
interests.2°® So, where there is a description of a herd from
which by the terms of the mortgage the mortgagee is to make
a selection, it was held in Texas that this is sufficient as
against a purchaser with notice.2!° <A later Texas case goes
still further and holds that where a mortgage conveyed fifty
mares with a certain brand, the mortgagor owning three hun-
dred such mares and there being no way of determining which
of the three hundred were intended to be mortgaged, it was
not void for uncertainty and the mortgagee had the implied
power to elect as to which ones should be deemed to be in-
cluded in the mortgage. The court said: “In order to give
effect to such intent, there must be found in the instrument
either (1) some descriptive matter which, when applied to the
herd, will enable one to ascertain the very animals intended
to be conveyed; or (2) an express or implied power of selec-
tion, or, in legal terminology, ‘election.’ ” 771

*" Parker v. Chase, 62 Vt. 206. And see Jacobson v. Christensen
(Utah), 55 Pac. Rep. 562.

° Harkey v. Jones, 54 Ark. 158.

*° Northwestern Bank v. Freeman, 171 U. S. 620.

7° Lay v. Cardwell (Tex. Civ. App.), 33 S. W. Rep. 595.

™ Oxsheer v. Watt (Tex.), 41 S. W. Rep. 466. Heyward’s Case, 2
Coke, 34 b., 37 a., is quoted: “If I give you one of my horses, in my stable,
there you shall have election, for you shall be the first agent by taking
or seizure of one of them.” See, also, Same v. Same (Tex. Civ. App.),
42 S. W. Rep. 121.

This case was followed in John S. Brittain Dry-Goods Co. 7. Blanchard:
(Kan.), 56 Pac. Rep. 474.

104 SALE AND MORTGAGE.

‘It was held also in this case that the purchaser of the three
hundred mares, having full knowledge of the mortgagee’s
right to select fifty, was not prejudiced by a foreclosure of fifty
average head of the whole number. In a similar case it was
held that the creditor of the mortgagor purchasing at his own
execution sale was charged with notice of the mortgagee’s
right to designate which animals should be subject to his lien,
and that a designation to the agent of the mortgagee iden-
tified the property with sufficient certainty to sustain the
mortgage as against such creditor.*4* In the Appellate Court
it was held that such a mortgage ceases to be a lien on the
offspring unless the mortgagee made his selection before it
became impossible to identify the young by reason of their
being separated from their mothers.?*3

.\ defect in a mortgage for a lack of separation may some-
times be cured by the subsequent act of the parties, removing
all doubt as to the identity of the animals mortgaged.?!+

Where the mortgage is duly executed and recorded accord-
ing to the law of the State where the cattle then are, and the
mortgagor afterwards drives them into another State and
sells them there to a bona fide purchaser, the latter takes them
subject to the mortgage, though he has had no actual notice
of it.2?® This depends, however, on principles of comity be-
tween the States, as to which there has been some conflict of
opinion.?16

-\ mortgagee may maintain an action for damages for the.

™ Avery v. Popper (Tex. Civ. App.), 45 S. W. Rep. 951, distinguishing
Same v. Same (Tex. Civ. App.), 34 id. 325.

™ Avery v. Popper (Tex.), 48 S. W. Rep. 572. modifying 45 id. 931,
supra. :

* Inter-State Galloway Cattle Co. 7. McLain, 42 Kan. 680.

See, in general, on the sufficiency of descriptions in chattel mortgages,
Jones Chat. Mort. (4th ed.) §§ 53-78, and the cases of mortgages of ani-
mals there cited. For additional cases, see Pingrey Chat. Mort. § 161;
3 Gen. Dig. N. S., 983-984.

*’ Nat. Bk. of Commerce v. Morris, 114 Mo. 255, and cases cited. And
see Edgerly v. Bush, 81 N. Y. 199; Riddle v. Hudgins, 58 Fed. Rep. 490.

* See Jones Chat. Mort. (4th ed.) §§ 209-307; 37 Cent. L. Journ. 375.

MORTGAGE OF ANIMALS AND THEIR INCREASE. 105

negligent killing of an animal in possession of the mortgagor
after condition broken.?2*

Where animals are mortgaged their natural increase is also
subject to the mortgage though not mentioned in the in-
strument.*!8 It is immaterial whether the young were con-
ceived prior to or subsequent to the date of the mortgage. In
an Jowa case the court had instructed the jury as follows: “To
entitle the plaintiffs to recover the possession of such of said
stock as were the increase or young of the stock covered by
the mortgage, they must establish the fact that such young
was conceived by their dams or mothers prior to the date of
said mortgage or else that after said mortgage the said
mothers and their increase were in the open possession and
control of plaintiffs [mortgagees].’”’ The Appellate Court
said: “No exception was taken or objection made by either
party to this instruction. It must be regarded as presenting
the law of this case.” *1® But in a later Tennessee case it was
held that the mortgagee is the owner of the increase though
the animal remains in the mortgagor’s possession and was
bred by him after the execution of the mortgage and without
notice to the mortgagee.??° The court said: “None of the
cases cited make any distinction between the case in which the
animal was bred before the execution of the mortgage and
that in which it was bred subsequently. In most of them, it
is true, the females were in fact pregnant at the time the mort-
gage was made; but in none of them do the courts attach

*7 Wylie v. Ohio R. & C. R. Co., 48 S. C. 405.

718 Northwestern Bank v. Freeman, 171 U. S. 620; Pyeatt v. Powell, 51
Fed. Rep. 551; Dyer v. State, 88 Ala. 225; Meyer v7. Cook, 85 id. 417;
Gundy v. Biteler, 6 Ill. App. 510: Forman v. Proctor, 9 B. Mon. (Ky.)
124; Cleveland v. Koch, 108 Mich. 514; Kellogg v. Lovely, 46 id. 131;
Cumberland Bank v. Baker (N. J. Ch.), 41 Atl. Rep. 704; First Nat. Bk. v.
Western Mort. & Inv. Co., 86 Tex. 636.

But see Boggs v. Stanky, 13 Neb. 400: Shoobert v. De Motta, 112 Cal.
215.

™° Thorpe v. Cowles, 55 Ia. 408. See Thompson v. Anderson, 94 id. 554.

“© Ellis v. Reaves, 94 Tenn. 210, citing Latta v. Fowlkes (Tenn.), 29
S. W. Rep. 124.

106 SALE AND MORTGAGE.

any importance to that circumstance. On the contrary, the
decision in each of those cases was based upon the legal prop-
osition that the title of the offspring follows the title of the
dam or mother—‘partus sequitur ventrem. The only case
we have been able to find in which the time of conception has
been treated as of any moment in determining the ownership
of young animals born of mortgaged females is that of Thorpe
v. Cowles. . . . Whether it [7. ¢., the instruction in that case]
would have been so ‘regarded’ if challenged does not appear.
No reason is given nor authority cited in its support. Cob-
bey incorporates the substance of that instruction into his’
text as an independent proposition, and cites that case but
none other to support it: Cobbey Chat. Mort. § 367. Not
only does that case stand alone, but it seems to us to be with-
out any sound reason to sustain it.”

In California, however, where by statute the chattel mort-
gagor is not divested of his title, it was held that the mort-
gagee is not entitled to a lien on the increase of animals be-
gotten after the execution of the mortgage.?”!

After the period of nurture of the young has passed, the
mortgage can be no longer enforced as against bona fide pur-
chasers and incumbrancers without notice whose titles are
subsequent to the date of weaning.??? “As to them the period
of nurture being passed and the young being entirely separ-
ated from the mother and not being mentioned in the mort-
gage, nor any longer connected with the mother covered by
the mortgage, they have neither actual nor constructive no-

1 Shoobert v. De Motta, 112 Cal. 215, refusing to follow First Nat. Bk.
v. West. Mort. & Inv. Co., 86 Tex. 636, cited supra and infra, where the
statute was similar. The court did not decide whether, if the lambs had
been in gestation at the date of the mortgage, the mortgagee would have
had a lien. But in First Nat. Bk. v. Erreca, 116 Cal. 81, it was held that
a mortgage of sheep does not extend the lien thereof to wool thereafter
grown or lambs in gestation at its date.

™ Winter v. Landphere, 42 Ia. 471; Darling v. Wilson, 60 N. H. 50:
Fnright v. Dodge. 64 Vt. 502; Desany v. Thorp (Vt.), 39 Atl. Rep. 309;
Cox v. Beck, 83 Fed. Rep. 269. Otherwise, in Maryland: Cahoon v.
Miers. 67 Md. 573.

MORTGAGE OF ANIMALS AND THEIR INCREASE. 107

tice of the mortgagor’s rights and interests nor anything to
put them upon inquiry.” 228

Thus, as against an attaching creditor of the mortgagor,
a mortgage of a mare covers her colt at least until it is weaned
or should be weaned according to the course of nature or the
usual custom of horse raisers.?2* And a mortgage upon a
“mare in foal” covers the colt as against one who purchases it
within the usual period of nurture.?”®

It was said in Darling v. Wilson:??° “If the mortgage
covers the increase of the particular animals mortgaged, so
that they cannot be sold to an innocent purchaser or attached
by an innocent creditor, it would, for the same reason, cover
the increase of the increase to an indefinite period, and no
person would be safe in purchasing live animals of one who
had at any time made a mortgage upon his live stock, without
examining into the pedigree of the animal and ascertaining
whether some of its ancestors were among those mortgaged,
however great the inconvenience or expense in so doing.
This is not the law.”

In the same case it is said: ‘There being nothing in the
mortgage showing an intention to create a lien upon the in-
crease of stock mortgaged, the lien existing only as an in-
cident to the mortgage would, as between the parties, con-
tinue so long only as is necessary for the suitable nurture of
the increase. This view is supported upon sound principles.”
But, commenting on this latter statement, it is said in Funk
v. Paul, cited supra: “To our minds this view cannot be sus-
tained upon sound principles. The lien was created by the
mortgage and, so far as the mortgage is concerned, was en-
tirely independent of the nurture. The mortgage was a valid
lien upon the increase as against the mortgagor in possession,
and he necessarily knew when the mortgage was given, the
young dropped and the period of gestation, and hence there
would seem to be no valid reason for terminating the lien as

8 Funk v. Paul, 64 Wis. 35. 4 Rogers v. Highland, 69 Ia. 504.
Edmonston 7. Wilson, 49 Mo. App. 491. ** 60 N. H. 59, cited supra.

108 SALE AND MORTGAGE.

against the mortgagor merely because the period of ‘suitable
nurture’ had passed. Such nurture did not give the lien, and
its termination could not take it away as against the mort-
gagor. As to such mortgagor, the question of notice or in-
sufficiency of description is not involved, for he had actual
notice that such increase was, in fact, covered by the mort-
gage.”

So in Meyer v. Cook,??" it is said on the same point: “We
are at a loss to conjecture on what principle such a distinction
can be maintained. We apprehend, however, that all such
seeming rulings rest on an entirely different principle. The
exception has been allowed only in favor of bona fide pur-
chasers who, finding such offspring in the possession of the
mother, arbiter of its own movements and not following the
dam, purchased and paid for the same, without notice of the
mortgage lien.”

The words “increase of the sheep,” in a mortgage of a cer-
tain number of branded sheep, were held to mean the natural
increase of the original sheep mortgaged and not to include
additions made to the flock by purchase, though in substitu-
tion of those specified in the original mortgage.?8 A deed of
trust on a flock of sheep including “increase and all appen-
dages thereto” conveys the wool afterwards sheared from the
sheep.**° A mortgage lien on sheep and their wool is subject
to the necessary expense of shearing, storing and marketing
the wool.?8° A mortgage of a horse and “all earnings

*" 85 Ala. 417, cited supra.

“Webster v. Power, L. R. 2 P. C. 60.

A mortgage of cows and calves “that may be raised during the season”
covers calves that are carried at the time the mortgage is given: Cleve-
land v. Koch, 108 Mich. 514.

-\ mortgage of mares ‘and all increase of said mares and the increase
of the increase” covers colts foaled after the mortgage was executed:
Hopkins Fine Stock Co. v. Reid, 106 Ia. 78.

“™ Hobbs z. First Nat. Bk. (Tex. Civ. App.), 39 S. W. Rep. 331. And
see Alferitz v. Ingalls, 83 Fed. Rep. 964; Cox v. Beck, Ibid. 269.

*° Cox v. Beck, supra.

MORTGAGE OF ANIMALS AND THEIR INCREASE. 109
whether by premium or otherwise,”
future earnings.?**
A mortgage of cattle described as “my herd of 1,500 cattle
. all of such cattle being marked and branded . . . and
consisting of bulls and breeding and grazing cattle of one
year old and upwards,” was held not to embrace calves less
than one year old when the mortgage was executed, or their
increase, the court saying: “Itis . . . reasonable to conclude
that the addition of words which describe the property by the
several classes of which the herd consisted, and which omitted
_ one class, namely, those less than one year old, was intended
by the parties to exclude the latter from the operation of the
mortgage. .. . There is nothing except the general words
‘my herd’ which tends at all to show that it was the purpose
to embrace the calves. The other descriptive clauses lead to
a contrary conclusion.” 232
The owner of a mare served by a stallion agreed in writing
with the owner of the latter to pay him twenty dollars twelve
months after date if his mare proved with foal, “colt holden
for payment.” It was held that the agreement created a con-
tract lien in the nature of a mortgage.?%*

was held not to cover

38. Priority of the Mortgage Lien.—It appears to be gener-
ally held that the lien of a mortgage is superior to that of an
agistor, livery stable keeper or breeder, subsequently created
by the mortgagor without the mortgagee’s consent,”** but

*\ McArthur v. Garman, 71 Ia. 34.

72 Birst Nat. Bk. v. West. Mort. & Inv. Co., 86 Tex. 636, reversing 6
Tex. Civ. App. 59.

*8 Sawyer v. Gerrish, 70 Me. 254.

"4 Sargent v. Usher, 55 N. H. 287; Charles v. Neigelsen, 15 Ill. App.
17; Reynolds v. Case, 60 Mich. 76; Petzenka v. Dallimore, 64 Minn. 472;
Sullivan v. Clifton, 55 N. J. L. 324; Easter v. Goyne, 51 Ark. 222; State Bk.
v. Lowe, 22 Neb. 68; Hanch v. Ripley, 127 Ind. 151; McGhee v. Edwards,
87 Tenn. 506; Bissell v. Pearce, 28 N. Y. 252; Jackson v. Kasseall, 30 Hun
(N. Y.) 231; Monypenny v. Sells, 28 Ohio L. Journ. 112; Chapman v.
First Nat. Bk., 98 Ala. 528; Mayfield v. Spiva, 100 id. 223; Baskin v.
Wayne, 62 Mo. App. 515; Pickett v. McCord, Ibid. 467; Lazarus v. Moran,

110 SALE AND MORTGAGE.

there is some question as to what constitutes such consent.
Thus, it has been held that the mere fact that the mortgagor
was allowed to retain possession of the mortgaged animals,
does not show the mortgagee’s consent to have them kept
or fed by another ;?*° nor does the knowledge that the prop-
erty had been subsequently placed in the hands of such third
person.*?* But if the mortgagee may be presumed from the
express contract and the circumstances of the case to have
understood that the mortgagor would place the animal with
a stable-keeper to be boarded, and makes no objection, his
consent will be implied and the keeper’s lien will have pri-
ority.237

On the other hand, the question of priority has been settled
in favor of the agistor or keeper by reason of the wording of
the statute giving the latter his lien, and it has been held that
where the intent of the statute was to give a lien as against all
persons, that intent will prevail as against a prior mort-
gagee.*88 Thus, where a statute gives a lien for the care and
keeping of horses, provided notice be given to the owner of
the intention to claim such a lien, and notice is given to the

64 id. 239; Miller v. Crabbe, 2 Mo. App. Repr. 1371; First Nat. Bk. v.
Scott, 7 N. D. 312.

And see Lee v. Vanmeter, 98 Ky. 1; Bean v. Johnson (Ky.), 32 S. W.
Rep. 175; Howard v. Burns, 44 Kan. 543; Vining v. Millar, 109 Mich.
205. Contra, Case v. Allen, 21 Kan. 217, expressly disapproved of in
Sullivan v. Clifton, McGhee v. Edwards, supra; Willard v. Whinfield,
2 Kan. App. 53.

“ Wright v. Sherman (S. D.), 52 N. W. Rep. 1093, 53 id. 425; Howes
v. Newcomb, 146 Mass. 76; Cleveland v. Koch, 108 Mich. 514.

A mortgagor of cattle cannot recover for grain fed or stabling given
to the cattle, nor for the services of his minor child, living in his family,
and not then emancipated, in caring for such cattle; nor can he, by sub-
sequently emancipating the child, give him a cause of action which he
did not have when he rendered the services: Kreider v. Fanning, 74 III.
App. 237.

** Ingalls v. Vance, 61 Vt. 582. See Ingalls v. Green, 62 id. 436.

*" Lynde v. Parker, 155 Mass. 481. And see Woodard ~@. Myers, 15
Ind. App. 42; Bowden v. Dugan, 91 Me. 141; Farney v. Kerr (Tenn. Ch.
App.). 48 S. W. Rep. 103.

*§ Jones Chat. Mort. § 474.

PRIORITY OF THE MORTGAGE LIEN. 111

mortgagee as well as to the mortgagor in possession, it has
been held that the lien may be enforced, as it was created, not
by the agreement of the mortgagor, but by the statute which,
being in force when the mortgage was executed, entered into
it. So where a statute provided that the keeping of ani-
mals at the request of the “owner or lawful possessor” should
create a lien, this was held to apply to a request made by a
mortgagor in possession and to give priority to such lien.2+°
And where a mortgagee must by law take possession im-
mediately after the maturity of the mortgage, it has been held
that an agistor’s lien on mortgaged horses remaining in the
mortgagor’s hands has priority over the claim of the assignee
of the past-due notes secured by the mortgage.24! But
where the lien of a feeder of stock is prior to a chattel mort-
gage taken with knowledge that the stock was on the feeder’s
ranch, the former lien prevails.242 The court held in the case
last cited that it was not necessary to decide whether a sub-
sequent agistor’s lien was in that State paramount to a mort-

* Corning v. Ashley, 51 Hun (N. Y.) 483, 121 N. Y. 700, distinguish-
ing Bissell v. Pearce, 28 N. Y. 252, supra, on the ground that there the
mortgagor was not allowed to create a lien by his own agreement,
whereas here the statute charged the mortgagee with knowledge of the
lien.

*° Smith v. Stevens, 36 Minn. 303. In a later case,—Meyer v. Berlandi,
39 id. 438, 444,—this decision is said to rest “upon the doctrine of agency,
—authority, implied from the circumstances, from the mortgagee to the
mortgagor to create a lien for such a purpose.”

In Hanch wv. Ripley, 127 Ind. 151, commenting on the same case, it is
said that the court held “that the mortgagee took his mortgage with a full
knowledge that under the law the mortgagor might create an agister’s
lien against it superior to his mortgage and hence was bound thereby.”

And in Sullivan v. Clifton, 55 N. J. L. 324, it is said: “Under that
statute, no other view could reasonably be taken.”

But Smith v. Stevens is expressly disapproved of in McGhee v. Ed-
wards, 87 Tenn. 506, and several of the other cases cited supra.

See also Case vw. Allen, 21 Kan. 217; Aylmore v. Kahn, 11 Ohio Circ.
Ct. 392; Vose v. Whitney, 7 Mont. 385; Colquitt v. Kirkman, 47 Ga. 555;
Auld v. Travis, 5 Colo. App. 535.

*2 Blain v. Manning, 36 Ill. App. 214. And see Shannon v. Wolf, 173
Tl. 253.

*” Tabor v. Salisbury 3 Colo. App. 335.

112 SALE AND MORTGAGE.

gage, and remarked: “Strong and very persuasive arguments
have been adduced by able judges in support of their con-
clusion that the lien of him who feeds the cattle ought to
prevail as against the mortgagee, since the mortgagee has left
the property in the possession of the one executing the se-
curity, who is thereby apparently clothed with authority to
contract with reference to the stock, and his bargain in such
a case has resulted in the preservation and betterment of the
security which the mortgagee claims. Other judges contend,
with much learning, that the agistor has notice of the exist-
ence of the security and must be presumed to have contracted
with reference to its probable enforcement. These contro-
versies, however, have arisen where the security antedated the
placing of the stock with the ranchman. It does not seem
ever to have been held that where the lien of the feeder has
had its inception prior to the giving of the security, which is
taken with knowledge of the situation of the stock, such sub-
sequent mortgage is superior to its equities.”

In a Massachusetts case, however, it was held that a lien for
the keeping of a horse, created by agreement, will not hold
against a mortgage subsequently executed and recorded, if
the owner is afterwards permitted to use the horse at his pleas-
ure, as the relinquishment of possession is an abandonment
of the lien.?48

The delivery of an instrument in writing, purporting to de-
liver possession of cattle forty-five miles away, is not such a
taking of possession by a mortgagee holding under an unre-
corded mortgage as will defeat an attachment lien secured
before the actual possession is obtained.244

Where the trainer of a race-horse accepts a bill of sale in
place of his former lien he takes it subject to a chattel mort-
gage given to a third person while he was in possession.24®

One who takes a mortgage on a flock of sheep, with knowl-

* Perkins v. Boardman, 14 Gray (Mass.) 481.
“ Blanchard v. Ingram (Ind. Ty.), 48 S. W. Rep. 1066.
* Murray v. Guse, 10 Wash. 25.

PRIORITY OF THE MORTGAGE LIEN, 113

edge of prior mortgages on a part of them, is estopped from
denying the validity of such mortgages by reason of uncer-
tainty in the description of the sheep mortgaged.?*6

Where the mortgagor is given the right to dispose of the
stock from time to time as the cattle become fit for beef and
the horses unproductive and useless and to apply the proceeds
to his own use and benefit, the mortgage is void as against
attaching creditors.247 And where, with the mortgagee’s
consent, some of the mortgaged animals are exchanged for
others, the mortgagee’s right to the latter is equitable only
and does not affect attaching creditors.?*#8

The lien of a mortgage on animals is not transferred to the
purchase price therefor in the hands of one to whom the
mortgagor sells them under authority of the mortgagee to
sell and turn over the proceeds to the latter. The lien is lost
and extinguished by such sale and the unpaid purchase money
may be attached by the mortgagor’s creditors.?*°

46 Cox v. Beck, 83 Fed. Rep. 269.
* Roberts v. Johnson, 5 Colo. App. 406.
“® Alferitz v. Perkins, 122 Cal. 391. 28 Maier v. Freeman, 112 Cal. 8.

TITLE I,

TRANSFER OF PROPERTY.

CHAPTER II.

ESTRAYS.

39. What is an estray. 40. Rights and liabilities of the
taker-up of an estray.

39. What Is an Estray—Another mode by which property
in animals is transferred is by the act of the animal itself, so to
speak, or of a third person, 7. e., involuntarily so far as the
owner is concerned. An animal found wandering may be
taken up by the finder, advertised and sold, in accordance
with statutory provisions, the proceeds, deducting expenses,
being returned to the owner if he is ascertained. This whole
subject is one regulated by statute and, therefore, requires
but brief discussion here.

An estray is usually defined to be a wandering beast whose
owner is unknown at the time to the person who takes it up.
And an animal is not an estray where the person distraining
it knew who had charge of it and where it was kept, though
he did not know who the owner was.?__ But the word has been
held to have a wider significance under the Texas statute.
“The qualification of the owner being unknown is not at-

* Roberts v. Barnes, 27 Wis. 422; Lyman v. Gipson, 18 Pick. (Mass.)
422, 426; Walters v. Glats, 29 Ia. 437.

For the meaning of “stray beast in a suffering condition,” see Sturges
v. Raymond, 27 Conn. 473.

> Lyons v. Van Gorder, 77 Ia. 600.

114

WHAT IS AN ESTRAY. 115

tached by all the authors who attempt the definition. . . .
In common acceptation it is believed that the term estray in
our statute has not been restricted to an animal ignoto domino,
and we think that the law might very properly apply to cases
where the owner, although known, might be remote or where
he would not follow and reclaim his animals that had wan-
dered off, with reasonable diligence. A citizen who would
take up such wandering animals when found on his plantation
or adjacent lands would, as we conceive, be exercising a right
conferred by statute and be not trespassing upon the property
of others.” 3

An animal turned on a range by its owner is not an estray,
though he does not know its immediate whereabouts, unless
it wanders from the range and becomes lost.*

It was held in Pennsylvania that a stolen horse may be sold
under the stray laws. “The proceeding against a stray is
in rem and not against the title of any particular owner. Its
object is not to inflict a penalty for letting the animal go at
large, but to compensate the injury done by it and secure the
residue of the value to the owner of it.”° And there is a
similar decision in Iowa, where it is said: “It is plainly im-
material how the animal escaped from the owner—whether
by his voluntary act, by the act of a trespasser upon his prem-
ises, or bya thief. It is true that a thief can confer no title to
the stolen property. But the same may be said of a bailee;
and if a bailee were to abandon an animal, surely it would be
subject to the estray laws. So, if a trespasser should open a
gate or a stable door and a horse should escape, it would be
subject to be dealt with as an estray. And in all these supposed

® State v. Apel, 14 Tex. 428, where it was held that in an indictment for
taking and using an estray the name of the owner should be stated, if
known. And see Worthington v. Brent, 69 Mo. 205, where a similar
definition is given. The indictment should also allege the value of the
estray where proof of value is essential under the statute to determine the
penalty: State v. McCormack, 22 Tex. 297.

* Shepherd v. Hawley, 4 Oreg. 206; Stewart v. Hunter, 16 id. 62.

* Patterson v. McVay, 7 Watts (Pa.) 482.

116 ESTRAYS.

cases the negligence of the owner, or his act in abandoning
the property, is no more involved than in the case where prop-
erty is stolen. The true test and the only test is that the ani-
mal should be wandering and that the owner be unknown to
the person who takes it up as an estray.”® But in New Jer-
sey it was held that a stolen horse left by a thief tied to a post
in a public road was not an estray, the court saying: “A
stolen horse abandoned by the thief in his flight is a waif; but
such a waif will become an estray so as to be the subject of
sale if it be found straying upon improved land. But no one
but the owner of such land can make the statutory seizure
and sale.” 7

40. Rights and Liabilities of the Taker-up of an Estray.—The
use or abuse of an estray is such a conversion as will support
trover or trespass: the law will not permit the working an
estray. “It is not lawful for any to use it in any manner un-
less in case of necessity and for the benefit of the owner, as to
milk milch-kine, because otherwise they would be spoiled,

but to use a stray horse by riding or drawing is tor-
tious.” ® One finding an animal and using it for his own ben-
efit, whether he knew the owner or not, is liable for the con-
sequences.® But riding a stray horse in order to discover the
owner is not conversion.’ If the finder does not use the ani-
mal, or refuse to deliver it on demand, he incurs no liability.“

* Kinney v. Roe, 70 Ia. 509.

"Hall v. Gildersleeve, 36 N. J. L. 235. Dalrimple, J., dissented, citing
Patterson v. McVay, supra. And see as to the necessity of the animal
being taken up in an enclosed and improved field, Irwin v. Mattox, 138
Pa. St. 466.

*Oxley v. Watts, 1 Term 12: Bagshawe v. Goward, Cro. Jac. 147;
Weber v. Hartman, 7 Colo. 13; Barrett v. Lightfoot, 1 Monroe (Ky.) 241.

°Murgoo v. Cogswell, 1 E. D. Smith (N. Y.) 359; Watts 7. Ward,
1 Oreg. 86.

An indictment that alleges that the animal used was an estray, suffi-
ciently avers that the ownership was unknown: State v. Andergon, 34
Tex. 611. And see State v. Fletcher, 35 id. 740.

* Henry v. Richardson, 7 Watts (Pa.) 557.

“Henry v. Richardson, supra; Nelson v. Merriam, 4 Pick. (Mass.)

RIGHTS AND LIABILITIES OF TAKER-UP OF ESTRAY. 117

The possession that must be kept of an estray is the same
that a prudent man is accustomed to take of his own animals,
and is not relinquished by letting the animal run upon a range
with cattle of like kind belonging to the taker-up.!?

As a general rule the statutes with regard to the adver-
tisement and sale of estrays must be strictly complied with.1?
Such statutes are constitutional ;'* and one who has not given
the notice they require cannot acquire property in the estray
by possession or lapse of time,!® though in Texas it has been
held that one may become the owner by continued and ex-
clusive control over the estray, though he has not complied
with the statute.1® Where one took up an estray which he
kept in possession for a year without proceeding under the
statute he was held to be a trespasser ab initio and unable to
recover possession of the animal from one into whose pos-
session it had come again as an estray.17 But where one has
attempted in good faith to comply with the estray law, though
he has not done so, he may maintain an action against a
wrongdoer for an injury to the estray.18 Where there is no
authority whatever for taking up an estray, the principle that
mere non-feasance will not make a trespasser ab initio does
not apply, and a demand is not necessary to enable the owner
to sue for conversion.?®

249,—whether or not he has complied with the statute. And see Thomp-
son v. State, 37 Tex. Cr. 654.

* Parker v. Evans, 23 Mo. 67.

* Chaffee v. Harrington, 60 Vt. 718; Harryman v. Titus, 3 Mo. 302;
Crook v. Peebly, 8 id. 344; Duncan v. Starr, 9 Lea (Tenn.) 238; McCros-
sin v. Davis, 100 Ala. 631.

The proceeding to sell an estray is a special proceeding, not an action:
In re Rafferty, 14 N. Y. App. Div. 55.

* Stewart v. Hunter, 16 Oreg. 62. * Hyde v. Pryor, 13 Ill. 64.

* Moore v. State, 8 Tex. App. 496, citing Blackburn v. State, 44 Tex.
463.

“ Bayless v. Lefaivre, 37 Mo. 119.

* Chic. & N. R. Co. v. Shultz, 55 Ill. 421. See Hawkins v. State (Tex.
Cr.), 20 S. W. Rep. 830, for evidence of possession held insufficient.

* Ray v. Davison, 24 Mo. 280. That it must be proved that the estray
has broken through a lawful fence, see Storms v. White, 23 Mo. App. 31.

118 ESTRAYS.

An advertisement which does not state the name of the
taker-up of the estray or the locality, with sufficient accuracy
to enable the owner to find the property, is defective and the
finder can acquire no title under it.2° The failure to adver-
tise is not excused because the owner has claimed the estray
and promised to bring proofs.”

The taker-up has a lien on the estray for his charges and
fees and cannot be dispossessed until they are paid." But
they include only necessary expenses actually incurred.**
Where the ownership was known, the owner may replevy
without tendering costs and expenses.?* The owner's failure
to pay the costs and legal expenses before one year does not
forfeit his right of property, if such failure is caused by the
absence or other act of the taker or there is any other legal
excuse.”5

Mandamus will not lie to compel the secretary of the State
Board of Live Stock Commissioners to pay the proceeds of a
sale of estrays to a claimant, unless the secretary abuses his
discretion and refuses to consider proofs presented to him;
but he may require further proof than that provided for in the
statute.?®

The subject of the impounding and sale of trespassing ani-
mals is discussed in another part of this work.?7

* McMillan v. Andrews, 50 III. 282.

= Wright v. Richmond, 21 Mo. App. 76.

* Garabrant v. Vaugh, 2 B. Mon. (Ky.) 327; Ford v. Ford, 3 Wis. 309;
Mahler v. Holden, 20 Ill. 363; Rice v. Underwood, 27 Mo. 551.

* Amory v. Flyn, 19 Johns. (N. Y.) 102. “A person who takes up an
estray cannot levy a tax upon it but by way of amends or indemnity.”

* Walters v. Glats, 29 Ia. 437.

* Stephenson v. Brunson, 82 Ala. 455.

* State v. Live Stock Commrs., 4 Wyo. 126. ** See §§ 81-84, infra.

TITLE II.

RIGHTS OF OWNERS OF ANIMALS.

CHAPTER I.

INJURING AND KILLING ANIMALS.

41. General liability.

42. Proximate cause and probable
consequence.

43. Dogs attacking persons or

animals.
44. Other attacking animals.

45. Injuries inflicted on trespass-
ing animals.

47. Accidental injuries to animals
trespassing or running at
large.

48. Injuries

fences.
49. Insurance on live-stock.

50. Measure of damages; evidence
of value.

from __ barbed-wire

46. Unlicensed and dangerous ani-
mals; police power.

41. General Liability.—It is proposed under the present title
to treat of the various rights of owners of animals to the pos-
session and use of their property. In this chapter we shall
consider the civil remedies against those who injure or kill
animals. The criminal liabilities arising under statutes pun-
ising cruelty and malicious mischief will be discussed here-
after.

To ground an action it is not necessary that an animal
should be actually injured. Thus, an action lies for frighten-
ing wild fowl from a decoy by firing a gun.2 At the same
time one whose game is enticed away from his land by a
neighbor is also liable to an action for exploding combusti-

* See Title VI, Ch. I, infra.
* Carrington v. Taylor, 11 East. 571; Keeble v. Hickeringill, Ibid. 574 n.
119

120 INJURING AND KILLING ANIMALS.

bles so as to be a nuisance to the neighbor, in order ta
frighten the game away from the latter's land and prevent his
killing them or enticing others.* The general liabilities
arising in consequence of the frightening of animals will be
dealt with under various heads.*

A liability may arise from accident or negligence as well
as from intention. Thus the owner ofa race track is liable in
damages for the collision of horses caused by his fault. And
where a person under a mistake kills a dog for a wolf, he will
be liable though acting in good faith.” But where plain-
tiff’s carrier pigeon was killed by defendant’s cat without evi-
dence of culpa on the part of the defendant, both animals being
trespassers, the plaintiff could not recover. So the owner of
a cat was held not liable to the owner of a canary bird killed by
it, the court considering that cats to some extent “may be
regarded as still undomesticated and their predatory habits
as but a remnant of their wild nature.” ®

It was held at the common law that “if pigeons come upon
my land I may kill them, and the owner hath not any remedy;
but the owner of the land is to take heed that he take them
not by any means prohibited by the statutes.”1° And in a
later case where the defendant warned the plaintiff to cause
the latter’s pigeons to be destroyed or prevent their injuring
his crops, and afterwards fired at them on his land, and when
they rose fired again and killed one, this was held not to be
“unlawful killing.”

*Ibottson v. Peat, 3 H. & C. 644.

*See Tit. III, Ch. IIT; Tit. IV, Ch. II: Tit. VII, infra.

“North Manchester Tri-County Agric. Assn. v. Wilcox, 4 Ind. App. 141.

"Ranson «v. Kitner, 31 Ill. App. 241. So where a dog is accidentally
killed, in firing at a fox: Wright v. Clark, 50 Vt. 130.

* Webb «. McFeat, 22 Jour. Jurisp. (Sc.) 660.

* McDonald «. Jodrey. 8 Pa. Co. Ct. 142.

“ Dewell v. Sanders, Cro. Jac. 492, per Doderidge, Croke and
Houghton, JJ. This was said to be the better opinion, though Mon-
tague, J., thought that on account of the animus revertendi an action lay.
See Tit. I, Ch. I, supra.

" Taylor v. Newman, 4 B. & S. 80.

GENERAL LIABILITY. 121

A person may justify trespass in following a fox with
hounds over the grounds of another if he does no more than
is necessary to kill the fox.1? One who wilfully kills a dog is
liable in trespass to the owner for its value.13 Where the in-
jury is done by a servant not acting within the scope of his
employment the master is not liable. “Employment as a
gamekeeper does not imply authority to shoot dogs, or do
any other illegal act.” 14 A person who finds a horse and uses
and injures it is liable to the owner for the injury. “One who
finds any species of personal property is under no obligation to
take care of it. . . . The same rule applies to a lost animal;
but if the finder takes possession of such animal and shuts
him up he would be bound to provide necessary sustenance
for it. And if he goes further and uses such animal in a way
that injures him, there can be no doubt that he is bound to
make compensation for the injury.” *®

The principles suggested in the above cases will be found
more fully developed in the following sections.

42, Proximate Cause and Probable Consequence.—To make the
defendant liable his act must have been the proximate cause
of the injury or the latter must have been a natural and prob-
able consequence of the negligent or wilful act. This rule
applies to all case of injuries to animals. The following cases
are examples of its application.

The owner of a pasture bound to maintain a division fence
was held not liable for the death of a colt, belonging to the

“ Gundry v. Feltham, 1 Term 334. And see the opinion of Doderidge,
J.. in Millen v. Fandrye, Poph. 161, 162. See Tit. I, Ch. I, supra, and
§ 130, infra.

® Wheatley v. Harris, 4 Sneed (Tenn.) 468; Jacquay v. Hartzell, 1 Ind.
App. 500.

“ Wardrope v. Duke of Hamilton, 3 Rettie (Sc. Ct. Sess.) 876.

® Murgoo v. Cogswell, 1 E. D. Smith (N. Y.) 359. See on this sub-
ject § 40, supra. Where a horse distrained for a tax is injured and the
collector explains the circumstances, the burden of proof is on the owner:
Buswell v. Fuller, 89 Me. 600.

122 INJURING AND KILLING ANIMALS.

adjoining land-owner, which strayed into the pasture by
reason of the insufficient fence and, falling into a narrow hole,
was unable to get up and died. The insufficiency of the fence
was held not to be the proximate cause of the death and the
hollow was held not to be a dangerous place: therefore the
resulting injury was “something extraordinary and not to be
expected.” 16 But where one negligently left a fence open
and the plaintiff’s mare escaped and was injured on a barbed-
wire fence, it was held error to direct a verdict for the de-
fendant on the ground that his negligence was not the proxi-
mate cause of the injury.17 So where the evidence tended
to show that the plaintiff's sheep escaped from a pasture
through the defendant’s negligence and wandered away and
were killed by bears, it was held to be for the jury to say
whether the defendant’s negligence was the proximate cause,
and that this would depend on whether it was natural or
reasonable to expect that, if the sheep escaped, they would be
destroyed in this way.18

Where one leaving a gate open is made liable by statute
for the killing of cattle by a train, he is not liable where an-
other’s cattle are killed if the latter had been negligent in per-
mitting his cattle to escape from his own premises to those
on which the crossing was.1® But, under the same facts. it
was held that, where both parties are alike bound to keep up
a division fence, the defendant cannot set up the plaintiff's
contributory negligence.?°

Where the owner of uninclosed land forming a part of the
public common dug a pit near a street, leaving it insuffi-
ciently covered, and animals were accustomed to graze in the
common, he was held liable for the value of a gelding that fell
in and was killed. The court said: “Whether it [i. e., the

* Fales v. Cole, 153 Mass. 322.

West v. Ward, 77 Ia. 323.

* Gilman v. Noyes, 57 N. H. 627.

* Pitzner v. Shinnick, 39 Wis. 129. And see Oeflein v. Zautcke, 92
id. 176.

” Pitzner 7. Shinnick, 41 Wis. 676.

PROXIMATE CAUSE AND PROBABLE CONSEQUENCE. 123

suit] can be [maintained] or not depends upon the degree of
probability there was that such accident might happen from
thus leaving exposed the partially dug well, considered, per-
haps, in connection with the usefulness of the act or thing
causing the danger. . . . If the probability was so strong as
to make it the duty of the owner of the lot, as a member of the
community, to guard that community from the danger to
which the pit exposed its members in person and property,
he is liable to an action for loss occurring through his neglect
to perform that duty. We think any reasonable man of or-
dinary understanding and extent of observation of the ways
of life would say that the probability of injury to others,
under the circumstances, from leaving the well in question in
the condition it was in, was not only strong but that it
amounted almost to certainty—a probability as strong as
would arise from an unguarded cellar or a street in the
city.” 2%

On the other hand, cutting a tree till it was nearly ready
to fall and then setting it on fire was held not to make the de-
fendant liable for its falling on the plaintiff’s mare and colt
running at large, as they had a right to do, on the defendant’s
uninclosed land. ‘When the act is lawful, the liability of the
actor for an injury occasioned by it depends in the first place
on the question whether the injury is the natural or probable
consequence of the act, or is merely accidental.” ??

And where the plaintiff’s hogs, lawfully running at large,
were accustomed to sleep in the defendant’s barn and, while
they were there, the floor broke down, the defendant having
overloaded it, and the hogs were killed, the defendant was
held not liable. “It devolves on the plaintiff to show that
there was such connection between the negligent act and the
injury as to bring it within reasonable contemplation of the
actor that such injury would naturally and probably result

= Young v. Harvey, 16 Ind. 314.
” Durham v. Musselman, 2 Blackf. (Ind.) 96.

124 INJURING AND KILLING ANIMALS.

from such act, and such as ought to have been foreseen by the
defendant as likely to flow from his act.” ?8

So where the defendant negligently placed a barrel of brine
on a public street, by drinking of which a cow was killed, he
was held liable to the owner though the brine was poured into
the street by a third person, if the latter act was “ a natural
and probable consequence of the negligent act.” **

The unlawful confinement of another’s cattle does not
make one liable for an injury caused by the malicious act ofa
third person, not connected with the confinement.?® But
where the defendant, an innkeeper, contracted for the use of
his stable for the plaintiff's horses and they were driven there-
from by a third person to whom the defendant, in breach of
his contract, let the stable, and some of them caught cold
from the exposure, which reduced their market value, this
damage was held the probable consequence of the breach of
contract and not too remote to entitle the plaintiff to re-
cover.76

In an article referring to the decision in Firth v. Bowling
Iron Co.,?7 where the defendants were held liable for the death
of a cow, caused by swallowing a piece of wire-strand, it is
said: “Suppose that the negligence would not have led to the
injurious result without something altogether odd and ex-
ceptional on the part of the animal, how then? It seems to
us that the question whether the damage in Firth v. Bowling
Iron Co. was recoverable depends on the question whether,
as a matter of experience, cattle grazing would ordinarily be
likely to swallow pieces of wire lying in the grass. If such an

™ Christy v. Hughes, 24 Mo. App. 275.

“ Henry v. Dennis, 93 Ind. 452. See Hess v. Lupton, 7 O. 216, cited in
§ 47, infra.

“ Booth v. Sanford, 52 Conn. 481.

* McMahon v. Field, 7 Q. B. D. sor.

Where an injunction prevented the erection of a stable and the plain-
tiff’s cows thereby suffered from exposure and their milk was diminished,
it was held that he could recover: Lange v. Wagner, 52 Mad. 310.

"3 C. P. D. 254, cited in § 47, infra.

PROXIMATE CAUSE AND PROBABLE CONSEQUENCE. 125

accident were an exceptional or extraordinary occurrence we
should be disposed to think that the damage would be too re-
mote. Speaking without any special knowledge of the sub-
ject, we must confess to some surprise that cattle should be
ordinarily given to swallow such substances as large pieces of
wire; but it is to be observed that the facts of the case in Firth
v. Bowling Iron Co. furnished evidence that such is the case.
. .. But it seems to us that the true principle which ought
to govern such cases was hardly sufficiently stated in the ar-
guments or judgments.” 78

Where horses on a ferry-boat are frightened by a whistle on
another boat and a horse jumps against and breaks a defective
rail and is drowned, the defective rail, and not the whistle, is
the proximate cause of the loss as the owner of the boat ought
to have taken precautions against horses being frightened in
such a way.2® Where animals are drowned in consequence
of there being no barrier on a ferry-boat, evidence is admis-
sible that just such a boat had been used for thirty years daily
without an accident occurring.®°

Where the proprietors of a fair ground charging admission
had set aside a part of the grounds for target shooting with-
out giving notice thereof, they were held liable for the shoot-
ing of a horse, hitched where others were.*!

The owner of a colt killed by falling upon a post placed in
the fence about the pasture cannot recover damages of any
kind from the owner of another colt running at large, which
the former one was running to meet when the accident oc-
curred.3?

In playing foot-ball, E. trespassed on a grass-field and the
justices convicted him of unlawfully and maliciously doing

22 Sol. Jour. 719. ™ Sturgis v. Kountz, 165 Pa. St. 358.

*® Lewis v. Smith, 107 Mass. 334.

As to what is sufficient evidence of animals having been lost in a flood
caused by the defendant’s negligence, see Hopkins v. Butte & M. Comml.
Co., 16 Mont. 356.

* Conradt v. Clauve, 93 Ind. 476.

* Johanson v. Howells, 55 Minn. 61.

126 INJURING AND KILLING ANIMALS.

damage with the intent to destroy grass for the food of beasts,
but the conviction was held wrong as the statute did not apply
to damage which was only nominal and not done with intent
to damage.®?

The mere act of shooting a dog, though tortious, is not
the proximate cause of an injury to one in delicate health,
whose fright produces a serious illness.** But where the de-
fendant, knowing himself to be a poor shot, maliciously shot
at and wounded the plaintiff's dog that was lying peaceably
near the latter’s house, and the dog rushed into the house and
ran against the plaintiff, knocking her down and injuring her,
it was held that the defendant was liable, since his acts were
the proximate cause of the injury, without an intervening
force, and that it was immaterial whether the injury was or
could have been foreseen.*5

Where a sheep-wash sold by defendant to a farmer and used
according to the former’s directions killed the sheep, they
dying from the absorption of arsenic contained in it, although
there was evidence that the same wash had been sold and used
with impunity for many years, the jury were directed that they
might find for the plaintiff, which they did, and their verdict
was sustained.%¢

But where seed-crushers sold their refuse oil-cake to graz-
iers without describing it or selling it as fit for cattle food or
knowing that it was bought for that purpose, they were held
not liable on an implied warranty that it was so fit.37

* Eley v. Lytle, 50 J. P. 308.

* Renner v. Canfield, 36 Minn. go.

* Isham v. Dow (Vt.), 41 Atl. Rep. 58s.

* Black v. Elliot, 1 F. & F. 595.

So where poison had been spilled on cow’s food, if the seller knew of
it, though he used every effort to remove it: French v. Vining, 102 Mass.
132.

* Jackson v. Harrison, 2 F. & F. 782. So where bran, not manufactured
especially for the plaintiff, contained copper clasps that killed a cow, it
was held that the seller was not liable without express warranty, as the
rule as to food sold for human use did not apply: Lukens v. Freiund,
27 Kan. 664.

PROXIMATE CAUSE AND PROBABLE CONSEQUENCE. 127

Where a dealer in feed sold oats to a liveryman, knowing
they were intended for the food of horses, and the purchaser
did not examine them, it was held that there was an implied
warranty that they were reasonably fit for feed, which was
broken if they contained castor beans, and also that where
the purchaser by agreement returned the unused portion of
the oats, receiving the same price per bushel as he had paid,
this did not rescind the contract nor deprive him of his action
on the breach of warranty. Where some of the horses were
killed, others made sick and others permanently injured, the
measure of damages was the value of the horses killed, the
difference in value of the injured ones before and after the
injury, the loss of the use of the sick horses and the expense
oi medicine and medical treatment.®®

The owner of a barn containing another man’s horse is lia-
ble for carelessly setting fire to a straw stack near by and
causing the burning of the barn and horse.®®

Where a telegram requesting that a veterinary surgeon
should be brought for a valuable horse was not delivered
promptly, the telegraph company was held liable for the death
of the horse.*°

43. Dogs Attacking Persons or Animals.—The law with re-
gard to killing dogs in active mischief was thus stated in a
North Carolina case: ‘The law authorizes the act of killing
a dog found on a man’s premises in the act of attempting to
destroy his sheep, calves, conies in a warren, deer in a park
or other reclaimed animals used for human food and unable
to defend themselves. . . . The law is different where the
dog is chasing animals fere nature, such as hares or deer in
a wild state, or combating with another dog. In these cases
a necessity for the act of killing must be made out, or the kill-

* Coyle v. Baum, 3 Okla. 605.
® McCornack v. Sornberger, 56 Ill. App. 496.
*° Hendershott v. West. Un. Tel. Co., 106 Ia. 520.

128 INJURING AND KILLING ANIMALS.

ing will not be justified.” 4 And in a leading Connecticut
case it is said: ‘“‘Whether before mischievous or not, or
whether, if so, the owner has knowledge of his disposition or
not, if actually found doing mischief or attempting to do it
alone, out of the possession of his owner or the charge of a
keeper, he may be killed and the act justified at common law.
. . . And so he may be destroyed under any circumstances
where it is absolutely necessary for the preservation of prop-
erty. . . . Other animals may become vicious and injure per-
sons or property, and the injured person may have his action
but may not kill them; and the discrimination against dogs
results legitimately from their proneness to mischief, their
uselessness and liability to hydrophobia, and the consequent
base character of property in them, and the necessity for that
protection, inasmuch as the right to an action quare clausum
is limited to one or two cases only, and no action at all can be
had at common law for the first mischief, or without proving
a scienter.”’ **

Where a dog was pursuing deer in a park or conies in a
warren or fowl in a poultry-yard, it was held a sufficient jus-
tification of the shooting to state that fact, without adding
that it was necessary to shoot to prevent his doing the in-
jury ;** but that the latter statement must be made where the
dog was running after hares in a close of which the defendant
was the gamekeeper,** or where he was pursuing a fowl not

" Parrott v. Hartsfield, 4 Dev. & B. L. (N. C.) 110. And see 4o L. R.
A. 510 n.

” Woolf v. Chalker, 31 Conn. 121.

That it is not necessary to show the plaintiff's scienter where the de-
fence is that the dog was ferocious and in the habit of attacking persons,
see Maxwell v. Palmerton, 21 Wend. (N. Y.) 407.

“Wadhurst v. Damme, Cro. Jac. 45: Barrington v. Turner, 3 Lev. 28;
Protheroe v. Mathews, 5 C. & P. 581; note to Janson v. Brown, I
Camp. 41.

See also Bennett v. Blezard (Co. Ct. case), 103 L. T. 370.

“Vere v. Lord Cawdor, 11 East 568, where the above cases were dis-
tinguished. Lord Ellenborough said: “The question is whether the plain-

DOGS ATTACKING PERSONS OR ANIMALS. 129

in an enclosure.*° And where the chasing and shooting are
all one and the same transaction the dog may not have been
actually chasing the deer at the moment he was shot.t® So
a dog killed, as allowed by statute, because he is ‘‘worrying”’
chickens need not be in the act at the very instant he is shot,
provided his conduct could excite reasonable apprehension;
and “to worry” has been held to mean “to run after, to chase,
to bark at.” 47

The general rule is that where a dog chases and bites an
animal, in order to justify killing him it must be shown that
the animals could not otherwise be separated.*® Thus; where _
a muzzled dog is attacked by another dog the latter may be
killed by the owner of the former if it is necessary to save him
from serious injury.*® But reasonable cause to believe that
a dog was going to kill hens was held not a sufficient justifica-
tion for killing him, unless there were reasonable cause to
believe that this was necessary to prevent his killing the
hens.5° And to kill a dog simply because he is suspected of
having done injury upon the premises previously is a trespass:
no one but the master, as a rule, has the right to kill a dog.®!
And the disposition of a dog to drive off stock trespassing on
his master’s premises is not a vicious propensity which will
justify the owner of the stock in killing him, unless he is a

tiffs dog incurred the penalty of death for running after a hare in an-
other’s ground. And if there be any precedent of that sort which out-
rages all reason and sense, it is of no authority to govern other cases.”

* Janson v. Brown, 1 Camp. 41, and note.

*© Protheroe v. Mathews, 5 C. & P. 581.

* Marshall v. Blackshire, 44 Ia. 475.

* Wright v. Ramscot, 1 Saund. 84; Hinckley v. Emerson, 4 Cow.
(N. Y.) 351.

* Boecker v. Lutz, 13 Daly (N. Y.) 28, where it is said, “Acts of fero-
city done at any time may be shown, but they will not make out a defence
if it should appear that for a long time the dog had ceased to be dan-
gerous.”

°° Livermore v. Batchelder, 141 Mass. 179. And see Anderson v. Smith,
7 Ill. App. 354; Leonard v. Wilkins, 9 Johns. (N. Y.) 233.

% Brent v. Kimball, 60 Ill. 211. And see Gibbons v. Van Alstyne, 9
N. Y. Suppt. 156.

9

130 _ INJURING AND KILLING ANIMALS.

common nuisance.®* Under the California statute it has
been held that a dog killed for chasing sheep must be actually
doing the act when found and immediately followed up; he
cannot be killed to prevent his return.®? A similar rule exists
in lowa.2* And at the common law it was held that where
the owner of sheep shoots a dog in a field some distance off,
this is not justifiable.*® So, in a Scotch case, when a master
issued a general order to destroy all dogs found on his
grounds and his servant accordingly killed two dogs that were
trespassing in one of the master’s fields and near a valuable
flock of sheep, it was held that both the master and the serv-
ant were liable in damages. The Lord Chief Commissioner
said: “Ifa dog is known to be a sheep-killer and is found on
the property of a gentleman having sheep, I do not say it is
necessary to wait till he is near his prey, annoying or worrying
the sheep, before he is killed. But the case is very different
when this is not the character of the dog. It is always a ques-
tion of degree what entitles the person to prevent the appre-
hended injury.” ®°

But there are many statutory exceptions to this rule, es-
pecially in the case of sheep-killing dogs. Thus in Missouri
a dog that has killed or maimed a sheep or other domestic ani-
mal must be killed by the owner and may be killed by any one:
it is not necessary that he should be on the premises, or in the
act of killing, or that scienter on the part of his owner should
be shown.®? So also in Delaware.®® And in North Caro-
lina it was held that the owner of sheep is justified in killing a

© Spray v. Ammerman, 66 III. 309.

% Johnson v. McConnell, 80 Cal. 545.

* Marshall v. Blackshire, supra. * Wells v. Head, 4 C. & P. 568.

“ Grant v. Barclay, 5 Murray (Sc.) 130.

That a dog actually worrying sheep may be killed, see Turner v.
McLaren, 3 Sc. L. Rev. (Sher. Ct. Rep.) 57.

* Carpenter v. Lippitt, 77 Mo. 242.

That the right of property in dogs exists there and an action lies for
wounding a dog, see Woolsey v. Haas, 65 Mo. App. 198. But the killing
of a dog is not a criminal offense: State v. Mease. 69 id. 58r.

“ Milman v. Shockley. 1 Houst. (Del.) 444.

DOGS ATTACKING PERSONS OR ANIMALS. 13]
dog which had destroyed some of his sheep and returned to
his premises apparently for the purpose of destroying others,
though he was not at the time in the very act of destroying
or worrying the sheep, nor was it shown that the owner knew
of his bad qualities or that the injury could not have been
otherwise prevented.°® The subject of sheep-killing dogs
will be further considered hereafter.®°

Where a person is attacked by a dog on the highway it is
justifiable for him to kill the dog.*_ But where the defendant
was riding a bicycle near the plaintiff’s residence and the lat-
ter’s dog rushed at him and tried to seize his leg and the de-
fendant shot him, the defendant was held liable in damages.®?

Where a dog bit a man who, after some minutes seeing him
again, shot him, the killing was held justifiable, though it
would not have been if the dog had been set to guard property
and killed by a person interfering.®* On the other hand,
where a fierce dog attacked a person in his owner’s yard and
was called off and while going away was shot by the person,
the shooting was held not justifiable.6* So where the dog
bit the defendant’s gaiter, and on his raising his gun the dog
ran away and the defendant shot him, this was not justifi-
able.®

Where a person “suddenly assaulted” by a dog may, by
statute, kill him, it is not necessary that he should kill the dog
instantly, but one bitten while separating two fighting dogs

* Parrott v. Hartsfield, 4 Dev. & B. L. (N. C.) 110, and see the extract
from the opinion quoted supra.

© See § 94, infra.

% Reynolds v. Phillips, 13 Ill. App. 557; Credit v. Brown, to Johns.
(N. Y.) 365.

So where his horse is repeatedly attacked by a dog in a dangerous
place: Quigley v. Pudsey, 26 Nov. Sco. 240.

West v. Costello (Co. Ct. case), 20 Ir. L. T. 166.

® Bowers v. Fitzrandolph, Addison (Pa.) 215.

“* Perry v. Phipps, 10 Ired. L. (N. C.) 259.

® Morris v. Nugent, 7 C. & P. 572. See the article in 54 J. P. 452,
quoted in § 46, infra.

132 INJURING AND KILLING ANIMALS.

is not “suddenly assaulted” within the meaning of the
statute.%°

Where a hawker knocked out a dog’s eye, it was held to be
for the jury to say whether it was in his own preservation or
wilful.&

The killing of trespassing, unlicensed, dangerous and mad
dogs will be considered later.®8

44, Other Attacking Animals.—The subject of the killing of
animals attacking others was thus spoken of in an Illinois
case: “If aman should find his neighbor's cat in his poultry
yard killing his chickens, it might be reasonable that he should
for the preservation of his fowls, if the necessity was apparent,
shoot the cat, while if a valuable horse of the same neighbor
was found in the yard, crushing the life out of the chickens,
it might not be reasonable to shoot the horse, even if he could
not protect his fowls otherwise. But if the same horse should
be found in a yard where there were other horses and, while
wrongfully there, should attack another equally valuable, and
it was apparent that the horse attacked would be killed. would
it be unreasonable for the owner of the latter horse to protect
his own property upon his own premises, even if the life of his
neighbor’s horse should be sacrificed to preserve that of his
own? The law regards the right of the slayer to his horse,
in the case supposed, as sacred as the right of his neighbor to
his property, and his horse being where he had a lawful right
to be, his owner must have the power to protect him, so long
at least as the consequences of the necessary acts of defence
are more disastrous to his neighbor than the consequences
of not acting would be to himself. It appears to me that in
cases of the character of the one at bar [where a dog killed
chickens], the jury must in a great measure be left to judge
from all the facts and circumstances in the case, not only of

“ Spaight v. McGovern, 16 R. I. 658.
* Hanway v. Boultbee, 4 C. & P. 350.
See §§ 45, 46, infra.

OTHER ATTACKING ANIMALS, 133

the necessity of any defence, but of the reasonable necessity
of the particular defence made.” ©

Cases have been already cited where no recovery was al-
lowed for the killing of a carrier pigeon and of a canary bird
by cats.*° Where a hog had killed one chicken and at-
tempted to kill another, and, when seventy-five yards away
from where chickens usually ran, was killed, it was held error
to leave to the jury whether the hog was of a predatory char-
acter and to instruct them that if so, any one had a right to
destroy it as a public nuisance. The court said: “The po-
sition that such a hog is a public nuisance and may be killed
by any one is not supported on principle or authority, and if
recognized would lead to monstrous consequences... .
This court is of opinion that the owner of the chickens, much
less a stranger, could not justify killing the hog, although it
afterwards comes upon his premises.”” They then proceeded
to quote Popham, J., in Wadhurst v. Damme,” that “The
common use of England is to kill dogs and cats in all warrens
as well as any vermin,” and to distinguish between a dog—
“which is roving in his habits and no fence can stop it—it is
of no use, if constantly confined and its service is rather for
amusement than profit to man,” and a hog—which “roves
but little, is easily restrained by fences; confinement does not
destroy its usefulness, but is necessary in order to fatten and
make it fit for food, and it is one of the most valuable of do-
mesticated animals.” 72 On the other hand, where the owner
of an ass, which he knew had the habit of pursuing and in-
juring stock, permitted him to run at large and he attacked a
cow, threw her down and stamped on her, it was held that the
cow’s owner was justified in killing the ass to save his prop-
erty.”?

® Anderson v. Smith, 7 Ill. App. 354, 359.

Webb v. McFeat, 22 Jour. Jurisp. (Sc.) 669; McDonald v. Jodrey,
8 Pa. Co. Ct. 142, cited in § 41, supra.

™ Cro. Jac. 45. ™ Morse v. Nixon, 6 Jones L. (N. C.) 293.

“Williams v. Dixon, 65 N. C. 416.

134 INJURING AND KILLING ANIMALS.

The killing of wild vermin in defence of property is not gov-
erned by the tests of imminent danger and of the duty of re-
treating to the wall that are applied in cases of homicidal de-
fence. This was held, where the defendant killed four minks
that were pursuing his geese, and a statute prohibiting the de-
struction of certain fur-bearing animals between certain
months was considered not to be applicable where such de-
struction is an exercise of the constitutional right of protect-
ing property. The court said: “It was for the jury to say,
considering the defendant’s valuable property in the geese,
the absence of absolute property in the minks, their char-
acter whether harmless or dangerous, the probability of their
renewing their pursuit if he had gone about his usual business
and left the geese to their fate, the sufficiency and practica-
bility of other kinds of defence—considering all the material
elements of the question, it was for the jury to say whether
the danger was so imminent as to make the defendant’s shot
reasonably necessary in point of time. If, but for the shot,
some of the geese continuing to resort as usual to the pond
apparently would have been killed by these minks within a
period quite indefinite, and if other precautionary measures
of a reasonable kind, as measured by consequences, would
have been ineffectual, the danger was imminent enough to
justify the destruction of the minks for the protection of prop-
erty. . . . To hold, in this case, that the geese should have
been driven away from their home would be equivalent to
holding that they should have been killed. The doctrine of
retreat would leave them a right to nothing but life in some
place inaccessible to minks, where life might be unremunera-
tive and burdensome. . . . As against the minks, they had
a right not only to live, but to live where the defendant chose,
on his soil and pond, and to enjoy such food, drink and sani-
tary privileges as they found there, unmolested by these ver-
min, in a state of tranquillity conducive to their profitable
nurture.” 74

“Aldrich 7. Wright. 53 N. H. 398. In Taylor 7. Newman, 4 B. & S.

INJURIES TO TRESPASSING ANIMALS. 135

45. Injuries Inflicted on Trespassing Animals. There is no in-
herent right to kill an animal simply because it is found tres-
passing on another’s property. Thus the owner of crops has
no right to kill turkeys trespassing on his premises. He
“would not be justified in killing a valuable animal found de-
stroying property of little value.’ 7° The same rule has been
applied in the case of hens,"® geese,’ cats,"® cattle,“® and
horses.86 And where the defendant, whose fence was not a
lawful one, shot the plaintiff's hogs which were rooting up
potatoes in the former’s patch, and the latter got the hogs and
used them, it was held that he did not waive his right to de-
mand damages for the trespass, but merely his claim for the
value of the hogs.§! On the other hand, it has been held that
if one cannot otherwise protect his property from the depre-
dations of a dog, he will be justified in killing it when dis-
covered in the act within his garden.’* So it was held that
one finding a dog coming out of his meat-house at night, and
having no means of knowing its owner, had a right to shoot
it, and it was no answer to say that he should have con-
structed the building so that the dog could not get in.**

89, cited in § 41, supra, it was argued that shooting the pigeon when
rising was unnecessary for the protection of the crops, but Mellor, J.,
said: “It would have been on the ground again after the firing of the
gun was over.” This remark was quoted in the opinion in Aldrich v.
Wright, and the court said: “That was the objection to frightening the
minks: they would have been on the ground again after the frightening
was over.”

* Reis v. Stratton, 23 Ill. App. 314. See also § 122, infra.

* Clark v. Keliher, 107 Mass. 406.

™ Matthews v. Fiestel, 2 E. D. Sm. (N. Y.) 90.

* Whittingham v. Ideson, 8 Upp. Can. L. Jour. 14, cited in § 12, supra.

® Ford v. Taggart, 4 Tex. 492; Crawford v. Crawford, 88 Ga. 234.

* Snap wv. Peo., 19 Ill. 80.

% Champion v. Vincent, 20 Tex. 811. And see Bost v. Mingues, 64
N.C. 44.

” King wv. Kline, 6 Pa. St. 318, where the dog had been found eating
fish hung up to dry. A garden was considered protected just as a park
and a warren were at common law. And see Bradford v. McKibben, 4
Bush. (Ky.) 545, decided under the Kentucky statute.

“Dunning v. Bird, 24 Ill. App. 270.

136 INJURING AND KILLING ANIMALS.

Where a dog destroys plants by lying on them this is “mis-
chief” that will by statute justify killing it, and the defendant
need not compare its value with that of the plants.S*+ But
where a dog wandered from the highway and approached an
uninclosed lily pond presumably to slake his thirst, the fact
that it would, in the opinion of the land-owner, injure the
plants, was held not to justify killing it, though such owner
had been subjected to the same annoyance from other dogs.**
So a man was held not justified in killing his neighbor’s valu-
able dog of which he had never complained merely because
it barked around his horse in the night, chased cats into trees,
left tracks on the painted porch and had been seen in the hen-
house.8& And in Rhode Island it was held that the voluntary
killing of a dog is not justified by the fact that it was trespass-
ing and had previously injured property or that the shooting
was done merely with the intention of scaring it off the
premises."

Where a buffalo bull, a wild and vicious animal, breaks into
a close, the owner of the close may kill him, if necessary to
preserve his property from destruction, though the close may
not have a lawful fence.®®

Where the defendant kept notices painted on boards out-
side of a wood that steel-traps, spring-guns and dog-spikes
were set in that wood, and the plaintiff’s dog chased a hare
into the wood and was killed by the iron spikes, the judges
were equally divided as to whether damages could be recov-

* Simmonds v. Holmes, 61 Conn. 1. Cf. Tyner v. Cory. 5 Ind. 216,
where a plea that the dog was injuring a wheat field of defendant’s father
and was killed because he could not otherwise be prevented from doing
injury was held bad.

© Ten Hopen wv. Walker, 96 Mich. 236. And see Sosat wv. State, 2. Ind.
App. 586.

“ Bowers v. Horen, 93 Mich. 420. And see Trenholm v. Mills, 4 Leg.
News (Can.) 79. Cf. Brill v. Flagler, 23 Wend. (N. Y.) 354, cited in
§ 46, infra.

*' Harris v. Eaton (R. I.), 37 Atl. Rep. 308. And see Decker v. Hol-
gate (Pa.), 5 Lack. Leg. N. 56.

* Canefox v. Crenshaw, 24 Mo. 199.

INJURIES TO TRESPASSING ANIMALS. 137

ered for the loss of the dog.®® In another case, dangerous
traps baited with flesh were placed in a wood near a highway,
and it was held that an action lay for an injury to dogs
thereby, Lord Ellenborough saying: “It appears by the evi-
dence reported that the traps were placed so near to the plain-
tiff’s courtyard where his dogs were kept, that they might
scent the bait without committing any trespass on the defend-
ant’s wood. Every man must be taken to contemplate the
probable consequences of the act he does.” °° But in a later
case where the facts were very similar to those in Deane v.
Clayton, supra, a plea that the defendant set the dog-spear
for the purpose of preserving his game and disabling dogs,
whereof the plaintiff had notice, was held good even if there
had been no allegation of notice and the fact that the dog ran
off against his master’s will was held immaterial.®1 And
placing poisoned flesh in an enclosed garden for the purpose
of destroying a dog which was in the habit of straying there
was held not to come within the words “unlawfully and ma-
liciously kill, maim or wound;” % so it is not unlawful to set
a trap in a garden to catch cats trespassing there.

But in a Connecticut case the English rule that where the
owner of land places spring-guns, etc., on an enclosure, con-
cealed in order to wound and kill any man or animal coming
on the place, he is justified, on giving proper notice, in inflict-
ing the injury on trespassers—was disapproved of, and it was
held that scattering poison within one’s enclosure for the pur-
pose of poisoning another’s fowls, if they should come there,
was unjustifiable, though notice should be given to the owner,
and that the latter might recover for the consequent killing.®*
So one putting poison where he may reasonably anticipate
that another’s dog will get it is liable for its death, and all the

® Deane v. Clayton, 7 Taunt. 489.

©” Townsend v. Wathen, 9 East. 277.

" Jordin v. Crump, 8 M. & W. 782.

” Daniel v. Janes, 2 C. P. D. 351.

*® Bryan v. Eaton, 40 J. P. 213.

“ Johnson v. Patterson, 14 Conn. 1. See Smith v. Williams, infra.

138 INJURING AND KILLING ANIMALS.

members of his firm are liable if he does this in furtherance of
partnership business.°® And one whose sheep have been
killed by dogs and who places poisoned meat on the premises
to kill trespassing dogs, is liable for killing a neighbor’s dogs
which he had reason to believe came upon his land if they had
not been engaged in killing his sheep: otherwise, by statute,
if the sheep had been killed by them.°* It has been held that
trespass v1 et armis is the proper remedy where a dog is killed
by the direct administration of poison as where it is thrown
down to him mixed with food, but that where the poison is
placed where the dog is sure to pass along, case is the proper
remedy.®”

A notice of an intent to kill hens when next found tres-
passing is only a threat to do an illegal act and is no defence
to an action for killing them.®* So, a notice that dogs tres-
passing on land will be shot, does not justify the shooting.
On the other hand, where an occupier of land sown with seed
shot domestic fowls trespassing after a previous warning that
he would shoot them unless they were kept off his land, it was
held that he could not be convicted of unlawfully killing
them.1°°

The expression “go and kill him if you want to,’ made in
May by the owner of an animal while having a heated conver-
sation with one who complained of a trespass and threatened
to kill it, was held not to be a license to such person to kill the
animal in the following September.!%

Where the owner of domestic animals has a right to past-

” Dudley v. Love, 60 Mo. App. 420.

“ Gillum v. Sisson, 53 Mo. App. 516.

“ Dodson v. Mock, 4 Dev. & B. L. (N. C.) 146.

“Clark v. Keliher, 107 Mass. 406.

“ Corner v. Champneys, 2 Marsh. 584; Harris v. Eaton (R. I.), 37 Atl.
Rep. 308.

* Smith v. Williams, 56 J. P. 840. And see as to pigeons, Taylor v.
Newman, 4 B. & S. 80, cited in § 41, supra. Cf. Johnson v. Patterson,
supra.

™ Ulery v. Jones, 81 Ill. 403.

INJURIES TO TRESPASSING ANIMALS. 139

ure them on the commons of incorporated towns this, though
it be dangerous and reprehensible, does not take away his
right to recover compensation from those injuring them.!°

With regard to driving away trespassing animals it is said:
“If J. S. chase the beast of J. N. with a little dog out of land
in the possesion of J. S., an action of trespass does not lie, in-
asmuch as J. S. has an election to do this or to distrain the
beast. But if J. S. chase the beast of J. N. with a mastiff dog
out of land in the possession of J. S., and any hurt be done
thereby to the beast, this action does lie, the chasing with
such a dog being unlawful.” 1°? And it has been accordingly
held that a person who chases a horse out of his field with a
fierce dog is liable for any resulting injury.1°* But there is
nothing illegal in driving cattle off of one’s premises with a
dog if no unnecessary injury is done.1°% “Ifa master set on
his dog to chase sheep out of his land, and the dog pursue
them into another’s land, and the master recall his dog again
quam cito vidisset, an action does not lie.” 1°* But where the
defendant’s dog killed one of a number of trespassing sheep
that were being driven home by their owner, it was held that
the latter could recover though the sheep were trespassing on
the defendant’s land and he had been warned several times
before by the defendant.1°

The rule has been thus stated in a Connecticut case:
“There is no doubt that if A. is trespassing on the land of B.,
the latter when present by himself or his servants may,

* Chic., St. L. & N. O. R. Co. v. Jones, 59 Miss. 465.

** Bac. Abr., Trespass, E.

* Amick v. O’Hara, 6 Blackf. (Ind.) 258.

And see Richardson v. Carr, 1 Harr. (Del.) 142; Totten v. Cole, 33
Mo. 138.

* Spray v. Ammerman, 66 III. 309; Clark v. Adams, 18 Vt. 425; Davis
v. Campbell, 23 id. 236. “Unless,” as was said in Wood v. La Rue, 9
Mich. 158, “there was something in the size, character or habits of the
dog, or in the mode of setting him on or pursuing, which would nega-
tive the idea of ordinary care or prudence.”

** Com. Dig. 419, citing Latch. 119.

*" Grange v. Silcock, 77 L. T. N. S. 340.

140 INJURING AND KILLING ANIMALS,

after notice to depart, use such reasonable force as is neces-
sary for his removal. He may use like force to expel an-
other’s beast from his Jand, or he may seize and impound it.
But he has no right by the English law or our own, when pres-
ent in such a case, to destroy life or inflict permanent injury,
or use greater force than is necessary for removal or pre-
vention.” 1°8 So, in an action for shooting and wounding a
dog hunting with others in the defendant’s wheat field, the
court rightly charged that if the defendant used such means
to exclude dogs as a reasonable man would, and did no more
harm than necessary, the plaintiff could not recover.t° But
where the defendant wilfully set his dogs on the plaintiff's
colts in the former’s pasture, without taking any precaution
to prevent injury and they were driven into a barbed-wire
fence, he was held liable for the injury.44° And where the
plaintiff's horse escaped through a fence which he should have
repaired into the defendant’s field, and the later driving him
back caused him to be entangled in the wires of the fence, in
consequence of which he died, it was held that there was no
contributory negligence on the plaintiff’s part to bar his re-
covery.1‘! The agreement to dispense with a partition fence
is not equivalent to a legal fence so as to justify, in a proper
case, the killing of animals breaking in.1!*

Where the land-owner is not responsible for the trespass,
he may turn the animals into the highway without liability for
their straying away.'1? And he is not responsible for an in-
jury they may subsequently suffer without his default.144 So,
one who turns cattle out of his enclosure on to public lands
whereby some of them die of starvation from want of grass,

*® Johnson v. Patterson, 14 Conn. I.

*® Lipe v. Blackwelder, 25 Ill. App. 119.

™° Aspegren v. Kotas, ot Ia. 497.

™ Bullard v. Mulligan, 69 Ia. 416.

™ Tumlin v. Parrott, 82 Ga. 732.

“’ Cory v. Little, 6 N. H. 213; Humphrey v. Douglass, 10 Vt. 71, II
id. 22; Knour v. Wagoner, 16 Ind. 414.

™ Palmer v. Silyerthorn, 32 Pa. St. 63.

INJURIES TO TRESPASSING ANIMALS. 141

is not liable for their loss, where the owner has been notified
to take care of them.1!® The rule is otherwise where the land-
owner is responsible by his negligence for the trespass.!1®
And he cannot wantonly drive the animals to a distance.
When he does so he becomes a trespasser ab initio!” \Vhere
he has no right to inclose them on his own premises and, in at-
tempting to do so, injures them, he must respond in dam-
ages.118

46. Unlicensed and Dangerous Animals; Police Power.—The
legislature by virtue of its police power may authorize a city
ordinance that dangerous animals may be destroyed by city
authorities without notice to the owner and no liability for
loss is thereby created1!® And a law is constitutional that
authorizes a justice to make an ex parte order requiring the
owner of a vicious dog to kill it immediately and provides
that, on his refusing to do so within forty-eight hours, he shall
forfeit a certain sum.’2° Statutes and ordinances regulating
the licensing, collaring and muzzling of dogs and the shoot-
ing of the animal if they are not conformed to, are very com-
mon. In Massachusetts any one may kill an unlicensed or an
uncollared dog, whenever or wherever found, provided he
can do so without a trespass and every police officer and con-
stable shall kill such dog ;1*1 and the constable may peaceably

™§ Story v. Robinson, 32 Cal. 205

“6 Roby v. Reed, 39 N. H. 461; Morse v. Glover (N. H.), 40 Atl. Rep.
396. And see Carruthers v. Hollis, 8 A. & E. 113.

™T Gilson v. Fisk, 8 N. H. 404. And see Knott v. Digges, 6 Har. & J.
(Md.) 230; Knour v. Wagoner, supra; Tobin v. Deal, 60 Wis. 87, cited in
§ 79, infra.

As to his liability for the act of his agent see Burnett v. Oechsner
(Tex.), 50 S. W. Rep. 562.

“8 Harris v. Brummell, 74 Mo. App. 433.

™” Leach v. Elwood, 3 Ill. App. 453; Blair v. Forehand, 100 Mass. 136;
Jenkins v. Ballantyne, 8 Utah 245.

But see Lynn v. State, 33 Tex. Cr. 153; Peo. v. Tighe, 9 Misc. (N. Y.)
607.

* Peo. v. Gillespie, 25 N. Y. App. Div. 91.

™ \Morewood v. Wakefield, 133 Mass. 240.

142 INJURING AND KILLING ANIMALS.

enter the premises to kill the animal without the owner's
consent,!22—the court in the latter case, after a review of
the law of property in dogs, saying, “Dogs have always been
held by the American courts to be entitled to less legal
regard and protection than more harmless and useful do-
mestic animals.” But a private citizen pursuing a dog into
the plaintiff's house after the latter’s wife has refused to give
it up is a trespasser and is not justified in killing the dog.1*
Where the statute authorizes only the killing of dogs “going
at large,” an officer is liable where he enters a house without
the owner’s leave.12+ Where a dog may be killed “found and
being without a collar,” it may be killed when outside of the
master’s enclosure, though under his immediate care.1*
Such a statute does not, however, authorize converting the
dog to one’s own use: its object is “not to confer a benefit on
an individual, but to rid society of a nuisance by killing the
dog.” 126

Where by the statute no person is liable for the killing of a
dog not having around his neck a collar of a certain de-
scription, actual notice of the ownership of such a dog will not
make the person killing him liable, and engraving the initials
of the owner’s name on the collar was held not to be a suffi-
cient notification.1?7

A city is not liable for the illegal and tortious acts of its
police officers. Therefore, where a dog actually wearing a
collar was maliciously killed by a person appointed by the
city under an ordinance providing for the killing of dogs not

™ Blair v. Forehand, supra.

™ Kerr uv. Seaver, 11 Allen (Mass.) 151.

™ Bishop v. Fahay, 15 Gray (Mass.) 61.

So, where he enters the premises and calls away and shoots a dog that
was playing with its owner’s son, such dog is not “going at large”:
McAneany v. Jewett, 10 Allen (Mass.) 151.

™ Tower v. Tower, 18 Pick. (Mass.) 262.

™ Cummings v. Perham, 1 Metc. (Mass.) 555.

“' Morey v. Brown, 42 N. H. 373.

See as to affirmance on certiorari in such cases of the judgment of a
lower court, State v. Moore (N. J.), 42 Atl. Rep. 1063.

UNLICENSED AND DANGEROUS ANIMALS, 143

wearing collars, the city was held not liable.128 So, where the
police officer while killing the dogs injured the plaintiff, the
city was held not liable for his negligence.1”®

Where, under an ordinance, the owner of a dog was ordered
by the mayor to bring it to his office to have it killed and the
dog was brought, but the killing was prevented by the order
of a competent court, and the mayor thereupon sentenced the
owner to imprisonment, the sentence was held to be null and
the mayor’s action arbitrary and oppressive.12° And where
the mayor directs a marshal to post notices requiring the
owners of dogs to muzzle them and directing that all dogs
running at large without muzzles shall be killed, but no ordi-
nance of the city has been passed authorizing such a regula-
tion, the marshal has no authority to kill dogs.13!

A statute authorizing the killing by any one of an unli-
censed dog contemplates the exercise of some judgment and
does not extend to the case of killing by another animal.
Hence where an unlicensed dog was killed by the defendant’s
dog, the fact of the want of a license was held to be no de-
fence; and it was said that, if by accident a dog’s collar is lost,
the owner must be allowed a reasonable time to discover the
fact and replace the collar.13?

A statute authorizing an officer or agent of a society for the
prevention of cruelty to animals to condemn, appraise and kill
an animal, without notice to the owner, is unconstitutional
and void as depriving such owner of his property without due
process of law.138

“8 Moss v. Augusta, 93 Ga. 797.

™ Culver v. Streator, 130 Ill. 238. And see Whitfield v. Pais 84 Tex.
431.

The same rule applies where the officer is trying to impound the ani-
mal that injures the plaintiff: Givens v. Paris, 5 Tex. Civ. App. 705.

State v. Vay, 4o La. Ann. 209.

* Stebbins v. Mayor, 38 Kan. 573.

™ Heisrodt v. Hackett, 34 Mich. 283.

™ King v. Hayes, 80 Me. 206; Loesch v. Koehler, 144 Ind. 278. See
§ 124, infra.

144 INJURING AND KILLING ANIMALS.

It was said ina Vermont case: “Some animals are common
nuisances if suffered to go at large, from their known and uni-
form instincts and propensities, such as lions and bears, and
probably wolves and wild-cats; ... and domestic animals
from their ferocious and dangerous habits becoming known
to their keepers thus become common nuisances if not re-
strained. But such an animal is quite as obviously within the
general definition of a common nuisance as a wolf or a wild-
cat or a bear and, if allowed to go at large, as really deserves
to be destroyed.1*#

And in a North Carolina case it was said that “a dog may
be of such ferocious disposition or predatory habits as to ren-
der him a nuisance to the community, and such a dog, if per-
mitted to go at large, may be destroyed by any person.” 1%
But in a later case in the same State it is said: ‘No authority
is cited for this dictwm. It is certainly erroneous in assuming
that any person other than one specially incommoded or
aggrieved may abate a common nuisance: 3 Bl. Com. 5; and
we imagine that dogs of the kind referred to that behave so
badly as to become outlaws have rarely existed except ‘mad
dogs.’ ’’ 196

There are, however, cases that seem to support the dictum
in Dodson v. Mock. Thus it has been held that a large and
furious dog accustomed to bite mankind is a common nuis-
ance and in an action to recover damages for killing him the’
defendant need not prove that he was obliged to do so in
self-defence.'** This is certainly the rule in New York.!38

™ Brown wv. Carpenter, 26 Vt. 638, 643.

™® Dodson v. Mock, 4 Dev. & B. L. (N. C.) 146, 148.

“Morse v. Nixon, 6 Jones L. (N. C.) 293, 205. And see Perry v.
Phipps, to Ired. L. (N. C.) 259; Morris v. Nugent, 7 C. & P. 572, cited
in § 43, supra.

*' Brown v. Carpenter, 26 Vt. 638, where the English cases are re-
viewed.

* See Putnam v. Payne, 13 Johns. (N. Y.) 312, where it is said: “The
dog was, generally, a dangerous and unruly animal, and his owner knew
it; yet he permitted him to run at large, or kept him so negligently that
he escaped from his confinement. Such negligence was wanton and’

UNLICENSED AND DANGEROUS ANIMALS. 145

But where one kept for the protection of his family a dog
duly licensed and collared, and confined so as not to endanger
persons properly on his premises, he may recover its market
value as a watch dog from one who killed it there without
being attacked by it, although it was a dangerous animal and
accustomed to bite those who came near it.189

A dog that is mad may certainly be killed by any one.!#°
So, it was held, may one that has been lately bitten by a mad
dog, though the court said: “We do not mean to say that this
would be allowed as a justification in killing more useful and
less dangerous animals, as hogs, etc.” 141

The inhabitant of a dwelling-house may lawfully kill an-
other’s dog that is in the habit of haunting his house by day
and night, and, by barking and howling, of disturbing the
peace of the inmates, if the dog cannot otherwise be pre-
vented from annoying him,—though a wanton destruction of
the animal may not be justified.14? And in an action for kill-
ing a dog, where there was evidence that a number of dogs
disturbed the defendant by barking and howling on his lawn
every night and that he at last shot among them without tak-
ing aim, it was held that he had a right to protect his family
from such a nuisance and that it was a question for the jury
whether he used such means as were reasonable and neces-
sary, under the circumstances, to rid himself of it.14®

cruel, and fully justified the defendant in killing the dog as a nuisance.
The public safety demands this rule.” So in Maxwell v. Palmerton, 21
Wend. 407, it is said: “If the dog be in fact ferocious, at large, and a
terror to the neighborhood, the public should be justified in dispatching
him at once.’ And see Dunlap v. Snyder, 17 Barb. 561; Peo. v. Bd. of
Police, 24 How. Pr. 481.

See also Sentell v. New Orleans & C. R. Co., 166 U. S. 6098, cited in
§ 22, supra.

* Uhlein v. Cromack, 109 Mass. 273.

“ Keck v. Halstead, 2 Lutw. 1494.

1 Putnam v. Payne, 13 Johns. (N. Y.) 312.

“ Brill v. Flagler, 23 Wend. (N. Y.) 354. And see Meneley v. Carson,
55 Ill. App. 74. Cf. Bowers v. Horen, 93 Mich. 420, cited in § 45, supra.

“8 Hubbard v. Preston, 90 Mich. 221.

10

146 INJURING AND KILLING ANIMALS.

But, as was said in another case, “it would be monstrous
to require exemption from all fault as a condition of existence.
That the plaintiff’s dog on one occasion stole an egg, and af-
terwards snapped at the heel of the man who had pursued him
flagrante delicto—that on another occasion he barked at the
doctor’s horse and that he was shrewdly suspected in early life
to have worried a sheep,—make up a catalogue of offenses
not very numerous nor of a very heinous character. If such
deflections as these from strict propriety be sufficient to give
a dog a bad name and kill him, the entire race of these faithful
and useful animals might be rightfully extirpated.1**

In an action for killing a dog where the plaintiff knows its
good character, the defendant is entitled to show its bad char-
acter and addiction to worrying sheep.1*® A witness cannot
be asked whether from his knowledge of the dog he did or did
not consider it a nuisance.1*¢

A statute providing for the payment of bounties, to be
raised by taxation, to individuals killing wolves and other
wild animals, passed for the protection of stock-raisers, was
held to be constitutional in Texas.1*7 A similar statute ex-
ists in lowa.148

With regard to escaped animals, it is said in an article in
the Justice of the Peace: “An interesting point might be
raised but so far as we know has never occurred as to the
rights of a person meeting an escaped animal of a dangerous
nature. Would he be justified in destroying it there and then,
or would he be liable to pay damages to the owner to whom
it was valuable, unless the act was in absolute self-defence?

™ Dodson v. Mock, 4 Dev. & B. L. (N. C.) 146, 148. And see Jacquay
v. Hartzell, 1 Ind. App. Soo.

“Dunlap v. Snyder, 17 Barb. (N. Y.) 561; Lentz v. Stroh, 6 S. & R.
(Pa.) 34.

“ Parker v. Mise, 27 Ala. 480.

“ Dimmit Co. v. Frazier (Tex. Civ. App.), 27 S. W. Rep. 829; Weaver
v. Scurry Co. (Tex. Civ. App.), 28 id. 836.

“ Bourrett v. Palo Alto County, 104 Ia. 350.

UNLICENSED AND DANGEROUS ANIMALS. 147

In Morris v. Nugent’*® it was decided that to justify shooting
a dog it was not sufficient to show that the dog was of a fero-
cious disposition and at large. To justify shooting him he
must be actually attacking the party at the time; therefore,
where in that case the dog ran out and bit the defendant
and ran away it was held the defendant was not justified
in shooting him as he ran away. It need scarcely be said,
however, that a dog is not one of those animals that the
owner keeps at his peril, until after knowledge of savageness
of disposition. But how would it have been had the animal
been a monkey, or a wolf escaped from its owner? After es-
cape, does the owner retain a sufficient property to entitle him
to maintain an action for loss if the animal is shot without
having done any mischief? This seems to be the true test,
rather than the dangerousness of the animal’s nature. The
action would be to recover damages for injury to property
and then the case would turn upon whether the animal was
fere nature in the sense of being a subject of property, and
the escape would be material because without possession
there could be no property in an animal fere nature in this
sense. It might be very hard upon the owner of a travelling
circus, for instance, if a valuable lion escaped and was shot
while trying merely to get out of the way of the party shoot-
ing it. But it appears to us that, however morally wrong it
might be, in law a man may shoot an escaped lion in England
with impunity and, moreover, become thereby the owner of
the skin. The trophy might be very discreditable, notwith-
standing the rarity of the feat.” 15°

47. Accidental Injuries to Animals Trespassing or Running at
Large.—The question of liability for accidental injuries to tres-
passing animals depends on various considerations, such as
on whom rests the obligation to fence, whether the injury was

149

7C. & P. 572, cited in § 43, supra.
4 J. P. 452, quoted in 24 Ir. L. T. 468.

148 INJURING AND KILLING ANIMALS.

a natural result of the trespass, etc. Some of the cases have
been already discussed in § 42, supra.

The owner of a lot on which green sorghum was growing,
who left his fence down, was held not liable for the value of a
cow killed by eating the sorghum, the court finding as a fact
that it is not generally injurious to stock.1®' So, where the
plaintiff's ox got into the defendant’s cornfield through an
insufficient fence and ate corn, from the effects of which it
died, the defendant was held not liable.1*?

An action will not lie for carelessly leaving maple syrup in
one’s unenclosed wood whereby plaintiff’s cow, suffered to
run at large, drank it and died, the cow being wrongfully in
the wood; otherwise, if she had been there by defendant’s
permission.1®3 And where oxen died from eating brine left
on uninclosed land, the situation of the place, its proximity
to the haunts of cattle, and the risk of injury must be stated
clearly in the declaration to make a case of liability for negli-
gence.154

A manufacturing company is not liable for the death of
animals where they stray upon its unenclosed land and eat a
poisonous substance deposited in the ordinary course of
manufacture,®* nor, where it has abandoned its business,
leaving some poisonous products on the land sufficiently
guarded at the time.15®

A land-owner who is under no duty to fence against his
neighbor’s cattle is not liable for the death of the latter’s
horse from eating the leaves of a yew tree growing upon the
former’s land but not projecting over the division line be-
tween them.’*? But where an adjoining owner was liable by

* Fennell v. Seguin St. R. Co., 70 Tex. 670.

* Herold v. Meyers, 20 Ia. 378.

* Bush v. Brainard, 1 Cow. (N. Y.) 78

“™ Hess v. Lupton, 7 O. 216. See Henry v. Dennis, 93 Ind. 452, cited
in § 42, supra.

** Ferguson v. Miami Powder Co., 9 O. Circ. Ct. 445.

*° Morrison v. Cornelius, 63 N. C. 346.

“" Ponting v. Noakes, [1894] 2 Q. B. 281. Collins, J.. said: “Does it,

ACCIDENTAL INJURIES TO TRESPASSING ANIMALS. 149

prescription to maintain a fence and one to whom he sold
fallage of timber cut a tree in such a way as to make a gap in
the fence without the owner’s knowledge, and the plaintiff's
cattle went through and fed on the leaves of a yew tree that
had been felled by the owner of the fallage, it was held that
the land-owner was liable for the loss of the cattle.°§ Anda
burial board was held liable for the poisoning of a horse by
eating the leaves of a yew tree growing over into the plain-
tiff's meadow, and it was not material whether they knew
that yew leaves were poisonous to cattle or not, as, in either
case, they must be held responsible for their own act in origi-
nally planting the trees. Nor was the plaintiff bound to ex-
amine all the boundaries of his hired field to see that no injuri-
ous tree was projecting over them.15® No warranty,
however, can be implied on the part of the lessor of land let
for agricultural purposes that there are no plants likely to be
injurious to cattle, such as yew trees, growing on the land.1®

A declaration that the plaintiff’s horses were poisoned by
yew clippings from the defendant’s trees must disclose facts
from which the defendant’s duty to take care of the clippings
could be inferred; otherwise it is bad.1®!

Where the defendants were obliged to fence land for the
benefit of the lessor and his tenants (among whom was the
plaintiff), and strands from the wire fence fell down, as the
result of long exposure, and the plaintiff’s cow while grazing
swallowed one of the pieces and died, it was held that the de-
fendants were liable in damages.1®

Where a confectioner placed poisoned cheese behind his

then, make any difference that a yew tree is likely to tempt a horse to
trespass? I think not, unless it were proved that it was put or kept there
for the purpose of enticing the animal to its destruction.”

*8 Lawrence v. Jenkins, L. R. 8 Q. B. 274.

* Crowhurst v. Amersham Burial Board, 4 Ex. D. 5.

1° Erskine v. Adeane, L. R. 8 Ch. 756.

** Wilson v. Newberry, L. R. 7 Q. B. 31.

2 Firth v. Bowling Iron Co., 3 C. P. D. 254. And see the article in
22 Sol. Journ. 719, quoted in § 42, supra.

150 INJURING AND KILLING ANIMALS.

shop counter to destroy rats and mice, and a customer came
into the shop with his dog which went to the cheese through
an unfenced opening at the end of the counter, ate it and died,
it was held that the confectioner was not liable for the dog’s
death, the poison being placed there for a legitimate pur-
pose, and the dog being a trespasser.’®*

Where the owner of a horse knew that a fence which it was
the adjoining owner’s duty to repair was down in places, he
was held guilty of contributory negligence where his horse
went into the adjoining land and was killed by falling into a
pit.1°* And where the owner of a mare permitted her to feed
in the same field with a bull by which she was gored, he was
held guilty of contributory negligence.1® So, where the
plaintiff had reason to believe that the defendant had cut holes
in the ice and warned his servant not to let his cattle go unat-
tended, and, the servant disregarding this, the cattle watered
in the holes and fell in—this was held contributory negli-
gence on the part of the plaintiff.16

But, in Vermont, the owner of cattle was held not guilty
of contributory negligence where the division fence was not
repaired, and under the statute his knowledge could not be
shown.'8? And, in Missouri, where the owner turned his
horse into a pasture after he had known for a month of the
existence of a hole caused by improper mining and the horse
fell in and was killed, the owner was held not as a matter of
law guilty of contributory negligence. “There may have
been many circumstances or facts connected with the act of

18 Stansfield v. Bolling, 34 J. P. 406.

** Krum v. Anthony, 115 Pa. St. 431. So, where two agreed to pasture
their stock together, and the animal of one fell into an unguarded well
on the other’s land: McGill v. Compton, 66 Ill. 327. But a statute making
one who fails to maintain his part of a division fence liable to damages
to “crops, fruit trees and shrubbery thereon, and fixtures,” does not au-
thorize a recovery for the loss of a colt straying through a defective fence
and killed by falling into a pit: Crandall v. Eldridge, 46 Hun (N. Y.) 411.

*® Carpenter v. Latta, 29 Kan. so1.

* La Riviere v. Pemberton, 46 Minn. 5.

“Eddy v. Kinney, 60 Vt. 554.

ACCIDENTAL INJURIES TO TRESPASSING ANIMALS. 151

turning in, which would tend strongly to relieve the act al-
together of negligence, or which would make it a matter of,
at least, questionable propriety.” 1®° So, where A., in occu-
pation of minerals under a field occupied by B., had sunk a
shaft for the purpose of getting minerals and, when they
ceased to work there, had not covered it over so as to
protect properly the horses in the field, and B.’s mare fell
down the shaft, without any negligence on B.’s part, and was
killed, A. was held liable for the loss, Cockburn, C. J., saying:
“T think that it is more reasonable that he who does the
work which is the cause of the danger should avert that dan-
ger by doing all that is reasonably necessary.” 1®° And ina
similar case, where a bullock fell into an unfenced quarry in
the field he was pastured in, the owner of the quarry was
held liable, following the principle in Groucott v. Williams,
supra, that “where an alteration has been made in the normal
state of things, calculated to cause injury to a neighbor, an
obligation is cast upon the person who makes such an altera-
tion to protect his neighbor from injury—in this case to
place a fence so as to prevent cattle from falling into the
quarry.” 17° So, where cattle lawfully kept in a lot wander
into a portion of the lot that has been set on fire by another’s
negligence, the latter is liable where the injury is the direct
and probable result of his wrongdoing.”

The rule is different, however, where animals stray without
justification on another’s land. Thus, even where no action
lies for a trespass by cattle pasturing on uninclosed woodland,
yet as that is not a matter of right, the owner of the land is not
liable for an injury to the cattle from falling into an unfenced
hole!’ In another case, where the plaintiff allowed his horse
to run at large and it fell into an old well on the uninclosed

*® Green v. Kan. & T. Coal Co., 53 Mo. App. 606.

* Groucott v. Williams, 32 L. J. Q. B. 237.

*® Hawken v. Shearer, 56 L. J. Q. B. 284.

™ Chic., St. L. & P. R. Co. v. Barnes, 2 Ind. App. 213.

™ Knight v. Abert, 6 Pa. St. 472. See, to the same effect, Hughes v.

152 INJURING AND KILLING ANIMALS.

land of another and was killed, it was held that he could not
recover unless the defendant was guilty of gross negligence in
leaving the well open.17? So, where a well is dug upon land
without the owner’s knowledge or consent and the animal of
another falls in and is killed, the former is not liable on the
ground of negligence.t** But where a well is dug in a place
where animals are likely to be, as near a highway, and left un-
guarded, the probability of the accident happening deter-
mines the degree of negligence.*7®

The owner of stock has no legal right to rely on the suff-
ciency of another’s fence to restrain his stock, unless it is a
partition fence, the defective portion of which it was such per-
son’s duty to repair. When his animals escape they are tres-
passers and the land-owner is not obliged to keep wells, etc.,
covered to secure their safety.17* Where the plaintiff’s colt
escapes from its pasture through a break in the division fence
which it was the defendant’s duty to repair, the latter’s lia-
bility for an injury to the animal continues as long as it is
away from the pasture, and if another person, not the plaint-
iff’s servant, negligently starts up and drives the colt and it
is killed, his negligence is concurrent with that of the defend-
ant and does not relieve the latter.177 Where, by reason of
the defendant’s failure to repair a fence the plaintiff’s horses
went into his close and were killed by the falling of a haystack,
the injury was held not to be too remote and the defendant
was held liable.1** But where a horse fell off an unfenced
precipice and injured the plaintiff who was working on the

Hannibal and St. J. R. Co., 66 Mo. 325; Turner v. Thomas, 71 id. 506;
Blyth v. Topham, Cro. Jac. 158.

And see the cases cited in § 42, supra.

** Caulkins v. Mathews, 5 Kan. 191.

™ TIL Cent. R. Co. v. Carraher, 47 Ill. 333.

*° Young v. Harvey, 16 Ind. 314; Haughey v. Hart, 62 Ia. 96.

“’McNeer v. Boone, 52 Ill. App. 181,—the common law rule as to re-
straining animals having been restored by statute in that State. See
§ 70, infra.

*" Wilder v. Stanley, 65 Vt. 145.

*° Powell v. Salisbury, 2 Y. & J. 301.

ACCIDENTAL INJURIES TO TRESPASSING ANIMALS. 153

defendants’ land, it was held that the latter were not liable,
their failure to fence being a matter that concerned only the
adjoining land-owner.1*®

The modification to this rule where the common law is de-
parted from and animals allowed by statute to run at large,
is thus stated in an Alabama case: “Where the general law of
this State prevails, a person’s right to the use of his land is,
in a measure, affected by the recognized right of others to al-
low their stock to run at large. This latter right would be
practically destroyed if upon the lands not inclosed by a law-
ful fence erections or excavations could, with impunity, be so
made that animals straying thereon would be exposed to in-
jury or destruction. It seems plain, under our law, that the
land-owner has no right to expose straying stock to such
perils. He may be under no duty to guard them from the
dangers to which they may be exposed in consequence of the
natural features of the land, such as ditches, holes, decayed
trees liable to fall, etc. Nor would he be liable for an injury
to an animal caused by a fence built in the usual way. If,
however, a fence or other erection is so negligently main-
tained on the land as to be in effect a trap to passing animals;
if the injury to animals is the natural or probable consequence
of the act and such as any prudent man may have foreseen,
then, in the event of such injury, the land-owner is liable in
damages,” 18°

48. Injuries from Barbed-Wire Fences.—It was held in a
Scotch case that a proprietor of lands bordering on a public
road is not entitled to erect a barbed-wire fence along the
road, where such fence is dangerous to persons or beasts us-
ing the road.18!_ But in a Canadian case, where a colt fol-
lowing its dam led by the plaintiff’s servant ran against a
barbed-wire fence on a country road and received injuries

*° Ryan v. Rochester & S. R. Co., 9 How. Pr. (N. Y.) 453.
*° Hurd v. Lacy, 93 Ala. 427, 420.
*1 Elgin Co. Road Trustees v. Innes, 14 Rettie (Sc. Ct. Sess.) 48.

154 INJURING AND KILLING ANIMALS.

from which it died, the owner of the fence was held not liable.
The court said: ‘““They would be a nuisance along the side-
walks of this city or along the sidewalks of most of the towns
and villages of the province, but they are not found to be so
in the country parts. ... I am disposed to allow of the
barbed-wire fence as a great improvement in fence-making in
all places where it can properly be used, as on country high-
ways and perhaps as party fences.” In this case there was no
board or cap to render the fence visible: it consisted only of
wire stretched on posts.18?

In an Indiana case, where cattle were permitted to run at
large, a land-owner negligently constructing and maintain-
ing a barbed-wire fence between his pasture and the adjacent
highway so as to be a trap to animals, was held liable for the
value of a horse which, while feeding on the highway, was
attracted by other horses within the field and by grass therein,
and, attempting to enter, was entangled in the wires and
killed ;18° and the same rule has been applied in Alabama,1**
and Missouri.18 Otherwise, where the animals are running
at large contrary to law.186

In a New Jersey case it was held that a man who led a res-
tive horse along a road within eight feet of a barbed-wire
fence and did not hold him close but gave him ten feet of
rope was guilty of contributory negligence and could not re-
cover for an injury to his horse by running against the fence.
The court said: “The case is not entirely free from the question
of contributory negligence; if it were, it would raise the bold
question whether the erection and maintenance of a barbed-
wire fence along a public highway were negligence plain and

™ Hillyard v. Grand Trunk Ry. Co., 8 Ont. 583. The colt, five weeks
old, following its dam was also held to be not “running at large.” This
case “it is to be hoped will be followed as the leading decision on this
question hereafter. ... This is an extremely well-considered case”: 16
N. J. L. Jour. 107.

** Sisk v. Crump, 112 Ind. 504. * Hurd v. Lacy, supra.

*“ Foster v. Swope, 41 Mo. App. 137; Colvin v. Sutherland, 32 id. 77.

*° Galveston Land & Imp. Co. v. Pracker, 3 Tex. Civ. App. 261.

INJURIES FROM BARBED-WIRE FENCES. 155

simple and rendered the owner thereof liable for damages oc-
casioned by contact therewith. Such a question can only be
decided when it is raised and according to the facts of the
particular case. I can conceive of a state of facts where the
law would hold the owner of the fence liable.” 187

In another case in the same State it was held that the owner
of land who erects a division fence owes it to his neighbor not
to incorporate in it anything which in view of the habits of the
animals for which the land would naturally be used would
tend to injure them,—as in this case, barbed-wires. It was
also held that the.owner of the horse might recover though
he had bailed it to one to pasture who knew of the existence
of the wire ;*88 whereas in a Pennsylvania county court it was
held that the owner could not recover in such a case, if the
agistor had consented to the fence.18® In Missouri also it has
been held that the fact of the plaintiff’s knowledge of the wire
is not essential; he cannot be deprived of the use of his prem-
ises by the defendant’s violation of duty.18° So, in Oregon,
where the plaintiff turned his stock loose in the highway with
the knowledge that a barbed-wire fence along the highway
had no board or pole thereon, as required by statute, it was
held that he was not guilty of contributory negligence.!®

Where a railway company fenced off their land from the
adjoining lands with a barbed-wire fence, they were held liable
for the death of a sheep belonging to an adjacent owner.1%
And where an owner, liable to fence, placed barbed-wire upon
his own land, but in such a position as to be dangerous to
cattle in the plaintiff’s field, he was held liable for an injury

*" Hoag v. Orange Mountain Land Co., 12 N. J. L. Jour. 243.

*® Polak v. Hudson, 10 N. J. L. Jour. 43.

* Pim v. Griffith, 3 Pa. Co. Ct. 177.

*” Gooch v. Bowyer, 62 Mo. App. 206.

™ Siglin v. Coos Bay, R. & E.R. & N. Co. (Oreg.), 56 Pac. Rep. Io1t.

22 McQuillen v. Crommellin Iron Ore Co., 26 Ir. L. T. Rep. 15. And
see Shipton v. Lucas, 26 Ir. L. T. 148.

That a company must use diligence in running trains under such cir-
cumstances, see Atlanta & W. P. R. Co. v. Hudson, 62 Ga. 679.

156 INJURING AND KILLING ANIMALS.

to the plaintiff’s mare.1? In New York it was held not to be
negligence as a matter of law for a railway company to main-
tain a barbed-wire fence by which an animal is injured. It
may or may not be dangerous according to circum-
stances.!%* But a tenant who strung a strand of barbed-wire
wholly upon his own side of an existing division fence was
held liable to the adjoining owner for the value of a horse
which became entangled in the wire and was injured so that
it was no longer of any use to the owner.’®®

In Canada, in an action brought for injury to an animal by
a barbed-wire fence, it was held that the use of barbed-wire
was not unlawful if maintained in accordance with municipal
regulations ; otherwise its erection or maintenance becomes il-
legal, if it is so placed or constructed as to be dangerous to
others.19® But in Texas it was held that the building of such
a fence without a board between the posts as prescribed by
law is not, as a matter of law, negligence so as to render the
land-owner liable for an injury toa horse. “The law does not
say that it is negligence to construct or erect a fence different
from that prescribed by the law. . . . The question of negli-
gence was for the jury.” 1°?

The law was thus stated in a California case: “The act of
the defendants in constructing the fence upon their property

*8 Bennett v. Blackmore, go L. T. 395.

™ Guilfoos v. N. Y. Cent. & H. R. R. Co., 69 Hun (N. Y.) 593; Rehler
v. W.N. Y. & P. R. Co., 28 N. Y. St. Repr. 311.

And see Gould v. Bangor & P. R. Co., 82 Me. 122, where it was held
that a company was liable where the fence had become dilapidated through
its neglect. So, where it has left a gate in the fence open: Savage v.
Chic., M. & St. P. R. Co., 31 Minn. 419.

* Buckley v. Clark, 21 Misc. (N. Y.) 138.

* Augustus v. Lynde, 29 Can. L. Jour. 301. And see Bessette v. How-
ard, 8 Leg. News (Can.) 170.

* Hester v. Windham (Tex. Civ. App.), 27 S. W. Rep. 1078. And see
Brown v. Cooper, 10 Tex. Civ. App. 512.

That a barbed-wire fence is not per se a nuisance, see Robertson wv.
Wooley, 5 Tex. Civ. App. 237; Presnall v. Raley (Tex. Civ. App.), 27 S.
W. Rep. 200; Worthington v. Wade, 82 Tex. 26.

INJURIES FROM BARBED-WIRE FENCES. 157

and along the line of the public highway did not of itself ren-
der them liable to the plaintiff for the damages sustained; but
if the fence was constructed and maintained in such a manner
as to constitute negligence, they were properly held liable.
. .. . The defendants were not bound to maintain any fence
at all, but having undertaken to maintain one, they were
bound to see that it was not made a trap for passing animals.
It is the duty of the land-owner to take notice of the natural
propensity of domestic animals and to exercise reasonable
care to prevent his fence from becoming dangerous. The
fact that the fence was constructed entirely upon defendant’s
land is no defence, if negligently constructed or main-
tained.” 198

So, in Indiana, the erector of such a fence is liable where
he lays the wire on the ground without protection; and the
owner of animals is not as a matter of law guilty of contribu-
tory negligence in permitting them to wander to and become
entangled in barbed wires left lying on the ground without
protection by an adjoining land-owner who was building a
division fence—the owner of the animals not knowing of such
fence.19°

Where there was a barbed-wire fence, though not a lawful
one, between two pastures as to the boundaries of which there
was some question, and the defendant without the other
owner’s consent and against his protest and that of the plaint-
iff, his tenant, moved the fence so that it crossed a path by
which the plaintiff’s horse was accustomed to go to water,
there was held to be a cause of action for an injury received
by the horse.2°° And where the owner of land, after allowing
the public to drive across his lot for several years, stretched
a barbed-wire fence across the track without other notice
that he had withdrawn his license, he was held liable for an

#8 T oveland v. Gardner, 79 Cal. 317, 319. ;

2 Towe v. Guard, 11 Ind. App. 472. And see McFarland v. Swihart,
Ibid. 175.

2 Boyd v. Burkett (Tex. Civ. App.), 27 S. W. Rep. 223.

158 INJURING AND KILLING ANIMALS.

injury from the wire to a horse driven across the land after
dark.?°!

In Iowa, one fencing his land with barbed-wire is not liable
for the horses of an adjoining owner injured thereby.?°?

The law on the subject of these fences has thus been
summed up respectively in leading American and Irish law
journals:

“Tt would seem from the cases I have quoted that although
in some of the States there may be room for doubt with re-
spect to division fences, it has been generally decided that the
mere maintenance of a barbed-wire fence along a highway
without proof of negligence is not sufficient to charge the
owner with liability for injuries to cattle.” 2%

“We concur with our contemporary [viz., the Justice of the
Peace] in considering that, as the general result of the de-
cisions, the erecting or maintaining of a barbed-wire fence,
while not per se an illegal act, becomes illegal if so placed as
to be dangerous to others in the exercise of their lawful rights,
such as passing along a highway, or turning out cattle into
the fields, and involves liability for all the natural and prob-
able consequences, such as tearing the clothes of travellers
or injuring cattle.” 2°*

49. Insurance on Live-Stock.—Live-stock, like other kinds of
personal property, may be insured. This insurance is usually
against loss by theft, disease or accident and the company,

** Carskaddon v. Mills, 5 Ind. App. 22, followed in Morrow v. Sweeney,
10 id. 626.

Godden v. Coonan (Ia.), 77 N. W. Rep. 852.

316 N. J. L. Jour. rr2.

4 26 Ir, L. T. 154.

As to injuries from barbed-wire due to negligence in leaving a gate
open, see West v. Ward, 77 Ia. 323, cited in § 42, supra. As to driving
animals against the wire, see Aspegren v. Kotas (Ia.), 59 N. W. Rep.
273, cited in § 45, supra. A statute requiring the consent of the adjoining
land-owner to the use of barbed-wire in a division fence is constitutional:
Buckley v. Clark, 21’ Misc. (N. Y.) 138.

INSURANCE ON LIVE-STOCK. 159

by the terms of the policy, is relieved from liability where the
death of the animal is caused by the negligence or fault of the
policy-holder or his employees.?°° Therefore, where an in-
sured animal dies as the result of striking and abuse, or over-
work, the amount cannot be recovered.2°* And where a
policy insuring one against loss for the death of a horse by
“disease or accident” provided that he should use all care for
the health and preservation of the horse and in case of sick-
ness promptly summon the best veterinarian accessible or,
if none could be had, provide the best attention, and that its
benefits should not extend to any fatal injury which occurred
through his connivance, sufferance or act, it was held that
where the horse about two hours before the policy expired
had been intentionally killed not because it was in pain, but
because it could not recover and the claim of the assured
could not otherwise be presented, the company was not liable,
although the killing was by the advice of a veterinarian sent
by them to treat the horse, and the president had directed the
plaintiff to follow such veterinarian’s instruction as to the
treatment.2°7 A requirement in a policy of written notice
within twenty-four hours of the animal’s disorder is waived
where, upon receipt of a verbal notice, the company sends its
surgeon to examine the animal and he eventually orders it to

°° Beach Ins. § 229.

A law authorizing the formation of companies “for the purpose of
insuring the lives of domestic animals, upon the co-operative or assess-
ment plan of insurance,” includes loss by fire of animals insured: O’Grady
v. N. Y. Mut. Live-Stock Ins. Co., 16 N. Y. App. Div. 567.

Where an animal may not be insured for more than half its cash value
this is an admission by the company, knowing the property, of the proper
ratio between the value and the sum insured: III. Live-Stock Ins. Co.
v. Koehler, 58 Ill. App. 557.

°° West Horse and Cattle Ins. Co. v. O’Neill, 21 Neb. 548; Same v.
Timm, 23 id. 526.

°" Tripp v. Northwestern Live-Stock Ins. Co., 91 Ia. 278. The obsery-
ance of such a condition need not be proved in an action on the policy
in the first instance: it is matter of defence: Johnston v. Northwestern
Live-Stock Ins. Co., 94 Wis. 117.

160 INJURING AND KILLING ANIMALS.

be killed.2°° And notice need not be sent of a short passing
sickness which did not recur for many weeks.2° But
where immediate notice by telegram is required, the furnish-
ing of blanks for proof of loss is not a waiver of the condi-
tion.?!°

A provision in the constitution of the company that the in-
cumbering of the insured animals by a mortgage without the
company’s consent shall cause forfeiture of the certificate does
not operate ipso facto to annul the policy, but confers upon the.
company the right to elect to declare it void, which right may
be waived.?24

Where a company are authorized by statute to insure live
stock, etc., as farm property, but by their by-laws are not al-
lowed to insure village property within one hundred feet of
other buildings, they were held not liable for live stock de-
stroyed by fire while in the barn of a village hotel that stood
within one hundred feet of other buildings.?4? But where
live stock was insured “‘in the places herein set forth and not
elsewhere,” and a mare which was at the time in a certain barn
had been removed to another two hundred feet distant, where
she was killed by lightning, it was held that the words de-
fining the location were descriptive only, and not a stipulation
that it should remain unchanged, and that the company were
liable.243_ So, a description of a horse in a policy as “con-
tained in assured’s barn” is not a promissory contract or war-
ranty that the horse is to be kept all the time in the barn and

*8 Smith v. People’s Mut. L. S. Ins. Co., 173 Pa. St. 15. But see Ill.
Live-Stock Ins. Co. v. Kirkpatrick, 61 Ill. App. 74.

A provision requiring fifteen hours’ notice is valid: Swain vz. Security
Live-Stock Ins. Co., 165 Mass. 321.

™ Kells v. Northwestern Live-Stock Ins. Co., 64 Minn. 390.

™ Alston v. Northwestern Live-Stock Ins. Co. (Kan. App.), 53 Pac.
Rep. 784, where the condition was held to be a material one.

™ Lobee v. Standard Live-Stock Ins. Co., 12 Misc. (N. Y.) 449.

* Wildey v. Farmers’ Mut. Fire Ins. Co., 52 Mich. 446.

™° De Graff v. Queen Ins. Co., 38 Minn. sor.

And see Peterson v. Miss. Vall. Ins. Co., 24 Ia. 494; Mills v, Farmers’
Ins. Co., 37 id. 400.

INSURANCE ON LIVE-STOCK. 161

that the policy shall cease to cover it the moment it leaves the
barn, but covers a loss of the horse while in the farm past-
ure.244 But where an application was for insurance on live
stock “while on the premises only” and the policy referred
to it as ‘on premises” described, and further specified that
it was “situated. . . . on and confined to premises actually
occupied by the assured,” this was held to limit the liability to
a loss occurring on the premises.?1°

A provision in a charter that the business of a live-stock
insurance company should be confined to certain coun-
ties was held, in Pennsylvania, not to prohibit members who
have insured horses within those counties from removing
them to another county for purposes of sale, and keeping
them there a reasonable time, during which time the animals
die.246 And in a later case the court went still further and
held that a similar provision will not prevent a person insured
from recovering for the death of a horse permanently re-
moved beyond the limit prescribed. This was on the ground
that there was a doubt whether the designation of the loca-
tion was not descriptive rather than a warranty, and “forfeit-
ures are not favorites of the law.” 247 Where a policy is not
void by reason of the temporary absence of the animals “in
ordinary use” by the owner, it is such use to train for speed
a stallion of fancy stock at a driving park.?18

There are cases holding that where a policy embraces dif-
ferent classes of property insured the contract is entire, and
when vitiated as to a part the policy is vitiated as to the
whole; and therefore, where work horses are insured with

24 Haws v. Fire Assn. of Phila., 114 Pa. St. 431; followed in Amer.
Cent. Ins. Co. v. Haws (Pa.), 11 Atl. Rep. 107.

"5 Lakings v. Phenix Ins. Co., 94 Ia. 476, distinguishing the Iowa cases
cited supra.

76 Coventry Mut. Live Stock Ins. Assn. v. Evans, 102 Pa. St. 281.

27 Reck v. Hatboro Mut. Live Stock & P. Ins. Co., 163 Pa. St. 443.

As to the waiver of a condition of non-liability, if the horse should die
out of the State, unless written permission given, see Ill. L. S. Ins. Co.
v. Koehler, 58 Ill. App. 557.

38 Eddy v. Farmers’ Mut. Ins. Co., 18 Misc. (N. Y.) 297.

11 '

162 INJURING AND KILLING ANIMALS.

other personal property in a barn in one gross premium, the
policy, if vitiated as to one item, is so as to all.24® On the
other hand it has been held that insurance on a cow killed by
being blown against a barbed-wire fence is not defeated by the
forfeiture of insurance on buildings under the same policy by
reason of a mortgage on the premises, the policy providing
that it shall be void in case “the property or any part thereof
. is incumbered by mortgage or otherwise.” 2° So, the
insurance on a colt killed by lightning is not defeated by the
fact that the premises on which it was killed and on which
the buildings insured in the same policy also were, had been
sold and the insurance on the buildings thereby forfeited.?”4
The fact that an animal was not owned by the assured at
the time the policy was issued was held not to avoid the lia-
bility of the company where such animal was subsequently
acquired by him in exchange for others that were on the
premises at the former date.??_ And where there was a policy
on merchandise in a warehouse “not specifically insured” and
the insured person had a policy on poultry which was con-
stantly changing, it was held that such poultry was specifically
insured and did not fall within the terms of the former policy,
although no special lots were designated and there was no
attempt to distinguish between different kinds of packages
of poultry.??8
A marine policy of insurance on live cattle against all risks,
including mortality from any cause whatsoever, renders the
insurer liable for the extra cost of fodder supplied to the cattle
while the vessel is detained in a port of refuge for necessary
repairs due to perils of the sea, there being danger of total

*° Garver v. Hawkeye Ins. Co., 69 Ia. 202; Beach Ins. § 383. And see
Phoenix Ins. Co. v, Public Park Amusement Co., 63 Ark. 187.

*° German Ins. Co. v. Fairbank, 32 Neb. 750.

*2 Phoenix Ins. Co. v. Grimes, 33 Neb. 340; Beach Ins. §§ 225, 226.

* Mills v. Farmers’ Ins. Co., 37 Ia. 4oo.

* Firemen’s Fund Ins. Co. v. West Refrg. Co., 162 Ill. 322, reversing
55 Ill. App. 329.

INSURANCE ON LIVE-STOCK. 163

loss unless the expense is incurred.?#4 And recovery may be
had on a policy warranted free from mortality and jettison
where the animals are killed by a storm,?”* or, in consequence
of one, break down the partitions by which they are separated
and injure one another so that they die.?6

50. Measure of Damages, Evidence of Value-—The measure of
damages for an injury resulting in the death or permanent
disability of an animal is the value of the animal and the
reasonable medical and other expenses, if any, including per-
sonal services, incurred in trying to cure it and care for it
afterwards, deducting, in a proper case, the value of the car-
cass.227, But expenditures incurred where a reasonable man
would have known an injury to be incurable cannot be re-
covered.??8 Nor can damages be given for love and affec-
tion.??® A reasonable compensation for the loss of the use
of the animal while under treatment may be recovered.?®° In
an action for injuries to a horse it was held that the money
expended for the hire of another horse to take its place while
under treatment might be considered.” But it has been

4 The Pomeranian, [1895] P. 349.

28 Tawrence v. Aberdein, 5 B. & Ald. 107.

"6 Gabay v. Lloyd, 3 B. & C. 793.

1 Smith v. Consumers’ Ice Co., 52 N. Y. Super. Ct. 430; Watson v.
Bridge Co., 14 Me. 201; French v. Vining, 102 Mass. 132; Gillett v. West-
ern R. Corp., 8 Allen (Mass.) 560; Sullivan Co. v. Arnett, 116 Ind. 438;
Ellis v. Hilton, 78 Mich. 150.

Damages for hunting for and feeding other animals which the plaintiff
feared would be killed also are not recoverable: Harmon v. Callahan
(Tex. Civ. App.), 35 S. W. Rep. 705. That damages for the trespass are
recoverable, even where the plaintiff has waived his claim to the value
of the animal, see Champion v. Vincent, 20 Tex. 811, cited in § 45, supra. _

See also §§ 60, 137, infra.

28 Murphy v. McGraw, 74 Mich. 318.

2° Crawford v. Internat. & G. N. R. Co. (Tex. Civ. App.), 27 S. W.
Rep. 263.

20 Keyes v. Minneapolis & St. L. R. Co., 36 Minn. 290. And see § 69,
infra.

8 Hutton v. Murphy, 9 Misc. (N. Y.) 151. But see Hughes v. Quen-
tin, 8C. & P. 703.

164 INJURING AND KILLING ANIMALS.

held that the plaintiff may not recover what the horse would
have made for hire from the time of the injury to its death ;?5?
otherwise, where the animal is only temporarily disabled from
service; in the latter case reasonable hire may be recovered.2%3
Where a mare is killed, her value may be recovered, but, with-
out alleging injuries to her sucking colt, evidence thereof is
inadmissible.28* And where mares are caused to slink their
foals, the measure of damages is the reduced value of the ani-
mals, not the value of the unborn colt.285 If the injury is
accompanied by circumstances of aggravation, exemplary
damages are sometimes allowed, even if the animal has no
pecuniary value.28® One suing for the killing and wound-
ing of his cows may recover for the loss of milk from the
wounded cows while they were recovering but not for the
anguish of his wife by reason of her fear of the defendant.?°7

Where stock were killed by a tornado the measure of dam-
ages under an insurance policy was held to be ascertained by
showing their value immediately before and after the injury
and not what they were sold for a considerable time after-
wards.788

Where a statute gave selectmen the power to estimate dam-
ages for the killing of sheep by a dog, it was held to render
such estimate binding and, in the absence of fraud or mis-
take, not to allow any recovery in excess thereof.239

In a New York case it was held that the opinions of wit-
nesses as to the value of a dog were admissible.24° But ina

™ Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145

*8 Atlanta & W. P. R. Co. v. Hudson, 62 Ga. 679.

™ Gamble v. Mullin, 74 Ia. go.

* Baker v. Mims, 14 Tex. Civ. App. 413.

*° Parker v. Mise, 27 Ala. 480; Ten Hopen v. Walker, 96 Mich. 236;
Lewis v. Bulkley, 4 Daly (N. Y.) 156.

*" Donahoo v. Scott (Tex. Civ. App.), 30 S. W. Rep. 385.

*° Lewis v. Burlington Ins. Co., 80 Ia. 259.

Van Hoosear v. Town of Wilton, 62 Conn. 106, distinguishing Town
of Wilton v. Town of Weston, 48 Conn. 325.

“Brill v. Flagler, 23 Wend. (N. Y.) 354. See, in general, as to evi-
dence of a dog’s value, go L. R. A. 518 n.

MEASURE OF DAMAGES; EVIDENCE OF VALUE. 165

later case this rule was not followed and it was held that “the
jury are the competent judges of the value of such property,
after hearing the evidence as to the particular qualities and
properties of the animal.” 244. And in a still more recent case
it is said: “Opinions in regard to the value of dogs which
have no standard or marketable value are necessarily fanciful,
depending upon the fancy or predilection of the witness, and
are not competent. In order to render opinions as to the
value of a dog competent it should first be shown that the dog
in question is a marketable animal, either belonging to some
peculiar breed, or possessing some peculiar qualities which
make him an animal usually vendible, at some proximately
regular price. Nothing of the kind was shown here. It was
shown that he was a trained farm dog, and it was offered to
be shown that the witness, who was the plaintiff himself, was
acquainted with the value of such dogs and had seen them
bought and sold. This fell far short of offering to prove that
the dog was a marketable animal or had any market value,
which the witness was acquainted with. I am of the opinion
therefore that the evidence was properly excluded.” 747

But these latter cases were disapproved of in a Michigan
case, where it was said: “It is not necessary that personal
property must have a market value in order to render such
opinions competent. The value of a horse depends upon his
qualities for farming or trotting or family use or for many
other kinds of work. Clearly, jurors who were not farmers
would not be competent to determine the value of a farm
horse simply from a description of the horse, statements of
the work he will do and the qualities he possesses. No doc-
trine is better settled than that in such case the evidence of
farmers who know the value of horses is competent to aid the
jury in determining the value. This principle applies with

"1 Dunlap v. Snyder, 17 Barb. (N. Y.) 561.
"2 Brown v. Hoburger, 52 Barb. (N. Y.) 525; followed in Smith v.
Griswold, 15 Hun (N. Y.) 273.

166 INJURING AND KILLING ANIMALS,

equal force to the case of a shepherd dog, whose value, like
that of a horse, depends upon his qualities.” 248

In Texas it was held to be sufficient to show that a dog was
useful and of special value to its master, though no market
value was shown."44 The pedigree of a dog may be shown
by books kept to register the same.?*° Testimony of a dog’s
bad character for rushing into the highway and springing at
people may be given as going to show his value, though he
may not have been actually so engaged when shot.?**

The testimony of a veterinary surgeon is not privileged as
being a professional communication.?47

The measure of damages for taking, carrying away and de-
stroying game-cocks, kept for an illegal purpose, is their ac-
tual value to the plaintiff as articles of merchandise or sale,
whether the market for them is in the State or elsewhere.?*8

* Bowers v. Horen, 93 Mich. 420. See Spray v. Ammerman, 66 III. 300.

As to evidence of the value of horses, see Loesch v. Koehler, 144
Ind. 278.

4 Heiligman v. Rose, 81 Tex. 222.

*® Citizens’ Rapid Transit Co. v. Dew, 100 Tenn. 317.

*° Meneley v. Carson, 55 Ill. App. 74.

*" Hendershott v. West. Un. Tel. Co., 106 Ia. 520.

*8 Coolidge v. Choate, 11 Metc. (Mass.) 79.

TITLE III.

RIGHTS OF OWNERS OF ANIMALS.

CHAPTER II.

THEFT AND REMOVAL OF ANIMALS,

51. The felonious intent. 57. Cattle, sheep, hog, deer.
52. The taking. 58. Living and dead animals; evi-
53. Asportation, killing, removal dence.
to another county or State. 59. Driving animals from the
54. Ownership; want of consent. range.
55. The description in the indict- 60. Altering brands and marks.
ment, 61. Civil remedies; measure of
56. Horse, mare, gelding, etc. damages.

51. The Felonious Intent—We have already considered the
question what animals are the subjects of larceny.1. Nor is it
necessary in the present work to discuss at large the general
principles of larceny at common law and by statute. The
rules with regard to the felonious intent, the taking and
asportation, the distinctions between servants and bailees,
etc., apply as well to the larceny of this kind of property as
of any other. Notwithstanding this, there are so many pe-
culiarities to be considered arising from the essential nature
of animal life that it has been thought expedient to adopt such
a systematic order of treatment here as might be followed
in a general treatise on the law of larceny. A few words will
be said afterwards on the subject of civil remedies for the de-
privation of property in animals.

The whole question of guilt depends, as in other cases of

* See Title I, supra.
167

168 THEFT AND REMOVAL OF ANIMALS.

larceny, on the design formed at the time the animal is taken,
of depriving the owner of his property therein.? If this de-
sign is subsequent to the taking, the offense does not amount
to larceny. Thus, one who obtains possession of a horse as
bailee without any intent at the time to appropriate it, is not
guilty of larceny if he subsequently sells it and converts it to
his own use.2 So, where one takes a horse intending to ride
and afterwards leave and not return it or make any further
use of it, this is trespass, not larceny.* This has been held
where the taking was to enable the accused to escape punish-
ment,® or pursuit,® or to catch a train,’ or to make off with
stolen goods. On the other hand, it has been held that,
where one inadvertently drove away another’s lamb with his
own and sold it for his own use and denied knowledge of it,
the first act was trespass and the resolution to appropriate
made it felony.®

Where the hiring was fraudulent and done animo furandi
the offense.is larceny,!® even if the hirer does not sell or dis-

* State v. Moore, 101 Mo. 316; Starck v. State, 63 Ind. 285; Harrell v.
State (Tex. Cr.), 40 S. W. Rep. 799; State v. McKee (Utah), 53 Pac. Rep.
733-

The stealing of domestic animals is, in Oklahoma, a more serious of-
fense than grand larceny: Hughes v. Ty. (Okla.), 56 Pac. Rep. 708.

* Smith v. Com., 96 Ky. 85; Hill v. State, 57 Wis. 377; Morrison v. State,
17 Tex. App. 34; Stokely v. State, 24 id. 509; Reg. v. Carter, 47 J. P. 759;
Reg. v. Cole, 3 Cox C. C. 212; Rex v. Smith, 1 M. C. C. 473.

So, where one kills a cow not intending to steal it, but immediately
afterwards steals and appropriates the carcass, he is not guilty of “cattle
stealing:” Nightengale v. State, 94 Ga. 395. And the mere failure to
comply with the estray laws will not make the use and sale of the animal
larceny: McCarty v. State, 36 Tex. Cr. 135.

* Rex v. Phillips, 2 East P. C. 662. «

A fortiori, where an intention to return is shown: McDaniel v. State,
33 Tex. 419; In re Mutchler, 55 Kan. 164. Cf. State v. Ward, 19 Ney. 297.

* Dove v. State, 37 Ark. 261. * State v. York, 5 Harr. (Del.) 493.

"Lucas v. State, 33 Tex. Cr. 290.

* Rex v. Crump, 1 C. & P. 658. * Reg. v. Riley, 6 Cox C. C. 88.

* Rex v. Pear, 1 Leach C. C. 212; Rex v. Tunnard, Ibid. 214 n.; State
v. Woodruff, 47 Kan. 151.

Not, however, where the false pretense simply relates to the purpose
for which the animal is wanted: Berg v. State, 2 Tex. App. 148.

THE FELONIOUS INTENT. 169

pose of the horse.1!_ And where the indictment does not
charge such false pretense and the evidence shows the own-
er’s consent, evidence of the false pretext or guilty intent can-
not be given.t? If the borrowing is animo furandi, the fact
that the accused afterwards changes his mind and returns the
horse does not purge the offense.1® It is otherwise where
there has been no conversion at all, only an intent to con-
vert."4

A bailee may in many cases be guilty of statutory larceny
though the receipt of the property was in good faith, and it
has been held that where an animal hired bona fide has been
subsequently stolen the accused may be convicted on an in-
dictment of larceny as bailee in the common form: the stat-
ute need not be especially set out.15 But where the owner
of horses placed them in the defendant’s possession under
an agreement of sale by which the property was not to vest
in the latter till paid for, and the latter refused to pay or to re-
turn the horses, it was held that as he was not obliged to
return the identical property he was not bailee in such a sense
as to be guilty of larceny as bailee.1® And where a man found
two stray heifers and took them into his possession and after-
wards, when he found out who the owner was, sent them away
to be kept for himself, having had no intention of stealing
them when he first found them, it was held that he was guilty
neither of larceny nor of larceny as bailee.!”

The distinction between the cases of a servant and bailee
is that, the possession of the former being a continuation of
that of the owner, the fact that the intent to steal is formed
subsequently to the receipt of the goods does not prevent the
offense amounting to larceny, no title having been parted

* State v. Humphrey, 32 Vt. 569. * Marshall v. State, 31 Tex. 471.

** State v. Scott, 64 N. C. 586.

™ Reg. v. Brooks, 8 C. & P. 295; State v. Hayes, 111 N. C. 727.

* Reg. v. Tweedy, 23 U. C. Q. B. 120, following Reg. v. Haigh, 7 Cox
C. C. 403.

* Krause v. Com., 93 Pa. St. 418.

™ Reg. v. Matthews, 12 Cox C. C. 480.

170 THEFT AND REMOVAL OF ANIMALS.

with by the owner in the beginning. So, it has been held
that where a man hired to drive cattle sells them, it is larceny,
he being a servant, though a general drover.1® But doubt
was thrown on this case in a later one, where it was held that
a drover of pigs was a bailee and not a servant, and conse-
quently not guilty of larceny where his intent was subsequent
to the bailment.?®

Taking a horse found astray upon the taker’s land with the
intention of concealing it until the owner should offer a re-
ward and of then returning it for the sake of the reward, or
with the intention of inducing the owner to sell it astray for
less than its value, has been held to be larceny.2° The con-
trary has been held in Texas.*1_ But in a later case it was
more correctly laid down that if the original intent was to
appropriate the animal if no reward was offered, then the
taking was larceny; otherwise, if even in that event, the taker
intended finally to return the horse.??

Where one furtively and fraudulently took a mule and killed
it for revenge and not for gain, he was held indictable for
larceny.?8 The doctrine of lucri causa is one, however, which
it is out of place to discuss here on general grounds.?*

Where the taking of the animal is in good faith, even
though wrongful, this is not larceny. Thus, where the seller
of a horse recovered possession of it on the failure of the pur-
chaser to pay, title being contingent on payment, and the
latter re-took the animal in the night, believing he was en-
titled to do so, this was held not to be larceny ;?° so, where one
openly took an unbranded yearling under claim that the

* Rex v. McNamee, 1 M. C. C. 368. And see Reg. v. Jackson, 2 id. 32.

* Reg. v. Hey, T. & M. 209.

* Com. v. Mason, 105 Mass. 163, citing Reg. v. O’Donnell, 7 Cox
C. C. 337.

* Micheaux v. State, 30 Tex. App. 660.

* Dunn wv. State, 34 Tex. Cr. 257.

* Warden v. State, 60 Miss. 638. And see Delk v. State, 64 id. 77.

* See Whart. Crim. Law §§ 895, etc.

* State v. Thompson, 95 N. C. 506.

THE FELONIOUS INTENT. 171

owner had forfeited his title to it ;?® where one led a horse be-
longing to himself from a livery stable where it had been
placed by a constable who had levied upon it under a writ of
attachment ;?7 where one who had fraudulently exchanged a
horse which was not his, afterwards took it from the posses-
sion of the one with whom he had made the exchange, with-
out the latter’s consent, with the bona fide intention of return-
ing it to the true owner;?8 where one drove away and sold
stock, believing that he owned it;?® where a boy took to his
mother a horse resembling hers which was used and loaned ;?°
where one took possession of a horse which had been running
astray for years, without any known owner;*! where one
took and re-marked a sheep believing it to be his own;*?
where one killed hogs under the authority of a person whom
he believed to be the owner.**

52. The Taking.—The animal must be taken from the pos-
session of the owner into that of the accused in order to con-
stitute larceny. In large grazing countries animals on their
accustomed range have been universally held to be in the con-
structive possession of their owner ;34 so also where they are
not on the owner’s range, if they are not in the actual pos-
session and control of another.*> And, in general, an animal
astray and at large is yet in the constructive possession of the
owner, so that one taking it is guilty of larceny.?®

* Debbs v. State, 43 Tex. 650. 7? Clarke v. State, 41 Neb. 370.

*® Gooch v. State, 60 Ark. 5. 7° Peo. v. Devine, 95 Cal. 227.

® Gardiner v. State, 33 Tex. App. 692. * Johnson v. State, 36 Tex. 375.

*® Barnes v. State, 103 Ala. 44.

3. Lawrence v. State (Tex. Cr.), 30 S. W. Rep. 668.

% Moore v. State, 8 Tex. App. 496; Huffman v. State, 28 id. 174; Jones
v. State, 3 id. 498; Deggs v. State, 7 id. 359; McGrew v. State, 31 Tex.
Cr. 336.

%® Bennett v. State, 34 Tex. Cr. 216.

* Burger v. State, 83 Ala. 36; Peo. v. Kaatz, 3 Park Cr. (N. Y.) 120;
State v. Martin, 28 Mo. 530; State v. Everage, 33 La. Ann. 120; Borer
v. State (Tex. Cr.), 28 S. W. Rep. 951.

A statute making it an offense to “take up and use” any horse without
the owner’s consent was held to relate only to a horse running at large,

172 THEFT AND REMOVAL OF ANIMALS.

It is essential that the accused person should have had pos-
session to some extent of the animal. Therefore where a
person pointed out an animal in a pound to a pound-keeper
as his and received money as the purchase price and the
pound-keeper afterwards turned it out on his range where it
was found by the owner, it was held that there was no taking
possession sufficient to constitute larceny.*7 But in Texas,
where no asportation need be shown, it was held that one
who pointed out a cow and a calf on a range, saying he owned
them, and selling them, was guilty of larceny.?® And one
who sells and delivers an animal to one person and, without
re-purchasing, sells and delivers it to another, is guilty of
theft.39

Where one called up gentle hogs in their range and sold
them to another who was present, these acts were held to con-
stitute a taking, as the seller exercised control over the ani-
mals by calling them up and had them constructively in his
possession and converted them by delivery accompanied by
actual possession, but it was said that a mere sale was not
equivalent to a taking.4#° Thus, where it was shown that
A., falsely claiming an animal running on the range to be his,
made a bill of sale of it to W., receiving pay from the latter,
but the animal was never in the possession, actual or con-
structive, of either A. or W., it was held that there was no
taking sufficient to constitute theft.

Proof that the defendant shot a hog and pursued it but did
not catch it or kill it, and that it was found by the owner, but
not in the defendant’s possession, is not sufficient to sustain
a conviction.*2 And in another case an instruction that the

not to one saddled and bridled and hitched to a tree: Cochran v. State,
36 Tex. Cr. 115.

7 Peo. v. Gillis, 6 Utah 84.

* Doss v. State, 21 Tex. App. 505. Cf. Hardeman v. State, infra.

*° Hooper v. State (Tex. Cr.), 25 S. W. Rep. 966.

“Madison wv. State, 16 Tex. App. 435.

“ Hardeman v. State, 12 Tex. App. 207. Cf. Doss v. State, supra.

“ Minter v. State, 26 Tex. App. 217.

THE TAKING. 173

defendant was guilty of larceny if, after he shot the hog, he
was near enough to exercise control over it, with intent to
steal it, was held erroneous—actual possession being essen-
tial to guilt.*%

The recapture of stolen hogs after they had escaped from
the control of their takers was held to constitute a fresh lar-
ceny, the escape being from a pen into a pasture insufficiently
fenced, though they did not leave the pasture.**

53. Asportation, Killing, Removal to Another County or State.
—At common law the property must be carried away to con-
stitute larceny. Thus, merely killing an animal with intent
to steal it is not alone sufficient, where there is no removal.*®
An indictment for stealing an animal is not supported by
proof that it was shot and skinned,** or had its ears cut off.*7
But the degree of asportation may be very slight. Thus,
where one shot another’s cow in a wood, taking possession
of her when shot, handling her carcass so as to progress half
way in skinning it and leaving it only when frightened by a
dog’s barking and the apprehended approach of somebody,
this was held a sufficient asportation to constitute larceny.

“The position of the cow must have been changed from
that in which her owner left her free to move.” #® So, where
the defendant shot a hog and cut its throat, causing death,
an instruction was held correct that the “least removal of the
hog by the defendant after he shot and killed it would be an
asportavit in law; and if the jury believe from the evidence
beyond a reasonable doubt that the defendant shot and killed
the hog and then took hold of it and cut its throat, that would
constitute a taking and carrying away in the eyes of the

*® Molton v. State, 105 Ala. 18. “Trimble v. State, 33 Tex. Cr. 307.

* Peo, v. Murphy, 47 Cal. 103; State v. Seagler, 1 Rich. L. (S. C.) 30;
Alexander v. State, 60 Miss. 953.

* State v. Alexander, 74 N. C. 232.

*" State v. Butler, 65 N. C. 300.

* Lundy v. State, 60 Ga. 143.

174 THEFT AND REMOVAL OF ANIMALS.

law.” *° But where the defendant dragged a hog twenty
yards and struck it with an axe and it squealed and he then
ran away, leaving it where it was, there was held to be no
asportavit. “The controlling principle in such cases would
seem to be that the possession of the owner must be so far
changed as that the dominion of the trespasser shall be com-
plete.” °° Thus, it is a sufficient asportation of sheep if they
are removed from the flock and even for an instant under the
control of the defendant.54. And if a person takes and leads
a horse any distance with felonious intent, the asportation is
complete, though the animal is not removed from the en-
closure or lot which he was on at the time.5? And the lar-
ceny in such cases is continuous during the removal, and any
one participating in it at any stage is guilty of the offense,®*
but it is otherwise of the mere receipt of stolen animals,
though with guilty knowledge.®*

Where by statute asportation need not be shown, there may
be a conviction of stealing an animal on proof of killing it
with felonious intent, even if it has never actually passed into
the possession of the slayer.5° So, an indictment for the
theft of animals would be sustained by proof of fraudulently
killing them and selling their hides;5* or illegally marking
and branding them with felonious intent.5?

“ Croom v. State, 71 Ala. 14. And see Kemp vw. State, 89 id. 52; Frazier
v. State, 85 id. 17; State v. Gilbert (Vt.), 34 Atl. Rep. 697.

*° Edmonds wv. State, 70 Ala. 8. And see Wolf v. State, 41 id. 42.

1 State v. Gray, 106 N. C. 734; State v. Carr, 13 Vt. 571.

° State v. Gazell, 30 Mo. 92. And see Delk v. State, 64 Miss. 77.

* Peo. v. Wiley, 20 N. Y. Suppt. 445.

* Wheeler v. State, 34 Tex. Cr. 350.

* Coombes v. State, 17 Tex. App. 258, overruling Martin wv. State, 44
Tex. 172; Hall v. State, 41 id. 287.

But under an indictment for theft there cannot be, in Texas, a conviction
of unlawfully killing without the owner’s consent: Beavers v. State, 14
Tex. App. 541.

* Musquez v. State, 41 Tex. 226, citing Rex v. Rawlins, 2 East P. C.
617, where an indictment for stealing lambs was held to be sustained by
proof that the carcasses were found on the owner’s ground and only the
skins taken away. And see McPhail v. State, 9 Tex. App. 164.

* Coward v. State, 24 Tex. App. 590.

ASPORTATION, KILLING, REMOVAL. 175

A statute reducing theft to a misdemeanor or on the volun-
tary return of stolen property before prosecution, does not
apply where the character of the property has been changed
as from live hogs to pork.®®

Where one was indicted for killing a sheep with intent to
steal the whole carcass, proof of the killing with intent to
steal a part of the carcass was held sufficient, but it was ques-
tioned whether merely removing a live sheep for the purpose
of killing it to steal a part of the carcass, was an asportation.®°
And in a Missouri case it was held that a statute punishing
the killing of an animal with intent to steal it did not apply to
the killing of an animal which the defendant already had on
his own premises. “The taking and asportation in this case
occurred first, and hence the larceny was complete before the
animal was killed.” ®

Cutting off part of a sheep while it is alive with intent to
steal that part will support an indictment for killing with in-
tent to steal a part of the carcass, if the injury must occasion
the animal’s death.*

Where an animal is stolen in one county and brought into
another, the offense is regarded as continuous and the thief
may be indicted in the latter county. It has been held that
the same rule applies as between the different States,®* though
there are authorities to the contrary.** But this question is
beyond the scope of the present treatise, belonging to the
general treatment of larceny as a crime.®° Where two per-
sons indicted for horse-stealing in County A. were found in
joint possession of two horses in that county, which they had
jointly taken at different times and places in County B., it

*8§ Horseman v. State, 43 Tex. 353. ® Rex v. Williams, 1 M. C. C. 107.

State v. Crow, 107 Mo. 341; on rehearing, 17 S. W. Rep. 748.

® Rex v. Clay, R. & R. C. C. 387. And see Reg. v. Sutton, 8 C. & P.
201.

® + Whart. Crim. Law § 928.

* State v. Hill, 19 S. C. 435; State v. Ellis, 3 Conn. 185.

* Lee v. State, 64 Ga. 203; Harrington v. State, 31 Tex. Cr. 577.

® See 1 Whart. Crim. Law § 930.

176 THEFT AND REMOVAL OF ANIMALS.

was held that as each taking in the latter county was a separ-
ate felony the prosecutor’s counsel must elect on which to
proceed.®®

A conviction of larceny for carrying one head of cattle into
another county was held no bar to a prosecution for another
head of cattle carried at the same time to the same place but
belonging to a different owner and stolen at another time and
place, on the ground that the rule of such driving constitut-
ing one theft was a fiction of the common law.®* The animal
when brought into the second county must have been at the
time under the control of the thief.*§

The subject of the killing and removal of animals fere
nature, in so far as they do or do not constitute one continu-
ous act, has been already considered.®®

54, Ownership; Want of Consent.—The owner’s want of con-
sent to the taking is one of the essential ingredients in the
crime of larceny.”° The “owner” in this sense need not
necessarily be the one who has the legal title to the animal.
For example, one in actual possession of a horse so as to be
responsible to the true owner, is the owner as against one
who tries to steal it." So, where an estray is in the posses-
sion of one over whose land it ranges, his want of consent
must be proved.’* And, as against the defendant, one who
has taken up an estray has property in the horse to his full
value and not merely for charges for posting.™? To render the
taking larceny, it is not necessary that the defendant should
have known at the time who the owner was: he is guilty
where his original intent was felonious and he afterwards ap-
propriates the animal to his own use, knowing it to be an

“ Rex v. Smith, Ry. & Moo. 295. “ Harrington v. State, supra.
* Lucas v. State, 62 Ala, 26. ® See § 6, supra.
® 1 Whart. Crim. Law § 883. As to wilfully driving or riding an animal
without the owner’s consent, see Duckett v. State, 93 Ga. 415.
ze Blackburn v. State, 44 Tex. 457. And see Wilson v. State, 37 Tex.
YT. 373.
™ Spruill v. State, 10 Tex. App. 695. “ Quinn v. Peo, 123 Ill. 333.

OWNERSHIP; WANT OF CONSENT. 177

estray."* So, one who drives away cattle which have wan-
dered from the owner’s enclosure is not less guilty of larceny
because he is ignorant of the true owner and the latter does
not know where they are.*® But where an agent of cattle-
owners, employed by them to catch thieves with their con-
sent and authority, co-operates with suspected thieves in
planning and effecting the taking of the cattle, for the pur-
pose of having the thieves arrested while driving the cattle
away, this is not larceny, the property having been taken with
the owner’s consent.”® ;

Where one borrowed a horse to go to church and, while
there, the horse was stolen, such temporary custodian was
held not to be legally in possession of the horse so that his
want of consent had to be shown.’”_ But it is otherwise where
one has been for some time in the actual and exclusive pos-
session and control of the animal, though he is not the real
owner.7® Where a horse got loose from the owner and was
taken in the field of a third person and put in the stable,
whence he was stolen, it was held that he was in the con-
structive possession of the owner and the actual possession
of the third person, and that the indictment might well allege
the possession to be in either.7° In the case of an estray that
has been taken up, it may be alleged that the ownership is in
the taker-up, and not that it is unknown.8° So, an animal
may be said to be the property of an agistor.*

Though it may not be necessary to allege the ownership in
the indictment, if it is alleged it must be proved.8?. The fol-
lowing were held to be fatal variances: Where it was alleged

™ Lamb v. State, 41 Neb. 356; State v. White (Mo.), 29 S. W. Rep. sor.

*® State v. Martin, 28 Mo. 530.

State v. Hull (Oreg.), 54 Pac. Rep. 159.

™ Emmerson v. State, 33 Tex. Cr. 80.

7% Von Emons v. State (Tex. Cr.), 20 S. W. Rep. 1106.

7 Owen v. State, 6 Humph. (Tenn.) 330.

°° Swink v. State, 32 Tex. Cr. 530; Jinks v. State, 5 Tex. App. 68.

5 Rex v. Woodward, 1 Leach C. C. 357 n.

® Smith v. State, 43 Tex. 433. And see Murray v. U.S. (Ind. Ty.), 35
S. W. Rep. 240.

12

178 THEFT AND REMOVAL OF ANIMALS.

that J. was the owner of a horse and that it was in his posses-
sion and the evidence was that he was the owner but not in
possession at the time ;°* where the ownership of a cow was
alleged to be in B. and possession in A. and W. and the evi-
dence showed that the possession was in B. alone.** But it
is sometimes provided that where the animal may be other-
wise identified, a mistake in the allegation of ownership shall
not be material.®®

55. The Description in the Indictment.—The animal should
be sufficiently described in the indictment for the purpose of
identification. Where a hog was described as the property
of A. this was held sufficient, without further description of
the hog.8* But to call an animal a “yearling,” where the kind
of animal was not disclosed, was held insufficient.87 The fol-
lowing descriptions were held sufficient: “Two certain
oxen;’ 88 “one certain calf of the neat cattle kind;’ 5° “one
beef cattle.” °° A designation of the species is enough with-
out using the generic term “‘cattle’”’: hence a “beef steer” is a
sufficient description.®! But where the proof was that the
animal so described was a steer but not a beef steer, the vari-
ance was held to be fatal, though the description need not
have been so full.°? So, although an indictment need not de-
scribe a brand, if that be done, a variance in the proof thereof
will be fatal.°?

An indictment should specify the number of animals

® Hall v. State, 22 Tex. App. 632. And see Alexander v. State, 24 id.
126; Williams v. State, 26 id. 131.

* Owens v. State, 28 Tex. App. 122.

*® See McBride v. Com., 13 Bush. (Ky.) 337.

* Peo. v. Stanford, 64 Cal. 27.

** Stollenwerk v. State, 55 Ala. 142.

* Henry v. State, 45 Tex. 84. * Grant v. State, 3 Tex. App. 1.

” Duval v. State, 8 Tex. App. 370.

" Robertson v. State, 1 Tex. App. 311; State v. Lawn, 80 Mo. 2qr; State
v. Bowers (Mo.), 1 S. W. Rep. 288.

* Cameron v. State, 9 Tex. App. 332.

*® Allen v. State, 8 Tex. App. 360. So, of a description of ear-marks:
Robertson v. State, 97 Ga. 206.

DESCRIPTION IN INDICTMENT. 179

stolen.** But under an indictment for stealing two animals,
proof of the stealing of one will warrant a verdict of guilty.*®

An indictment charging the defendant with stealing “three
eggs” was held bad for not stating the species of eggs, be-
cause it did not show that the eggs stolen might not be such

as are not the subject of larceny ;9* but in a later case a doubt
was thrown on the correctness of this ruling.®”

As has already been said, where the animal stolen is fere
nature, the fact of its being dead, reclaimed or confined must
be set out in the indictment.®®

The older doctrine was that where a statute enumerated
several things and the words were so broad in meaning as to
overlie one another, the less specific ones would be narrowed
in their interpretation to prevent this consequence. But this
doctrine has been to a great extent abandoned both in Eng-
land and in this country.°® The meanings attached to the
statutory nomenclature of animals will be discussed in the
following sections.

56. Horse, Mare, Gelding, Ete——IJt was held in England that
the words.“horse, gelding or mare” in a statute punishing lar-
ceny included foals and fillies ;3°° also, under a later statute,
that “horse” would include a mare, a gelding, a colt or a
filly.1°! In this country a great diversity of opinion prevails.
In California, where the words “horse” and “mare” were both
used in the code, it was held that, as at common law the word

" Matthews v. State (Tex. Cr.), 48 S. W. Rep. 980.

*% Alderson v. State, 2 Tex. App. 10; Lowe v. State, 57 Ga. 171;
Matthews wv. State, supra.

*® Reg. v. Cox, 1 C. & K. 494.

Reg. v. Gallears, 1 Den. C. C. 501, per Pollock, C. B.

*® 2 East P. C. 777. See § 5, supra. An indictment for stealing oysters
need not cover that they had been gathered or were in the prosecutor's
possession: State v. Taylor, 27 N. J. L. 117.

” Bish. Stat. Cr. §§ 247-8.

1 Rex uv. Welland, Russ. & Ry. C. C. 494.

For the meaning of “horse” in exemption laws, see § 61, infra.

1 Reg. v. Aldridge, 4 Cox C. C. 143.

180 THEFT AND REMOVAL OF ANIMALS.

“horse” was used in its generic sense, it would be presumed
that the legislature had not intended to modify this interpre-
tation but had inserted the word “mare” possibly for more
definiteness, so that where one was indicted for the theft of
a “horse,” proof that the animal was a mare was no vari-
ance.1°? And the word also includes a gelding? And
there are similar decisions in Illinois,t°* Missouri,!°® Tennes-
see,1°6 South Carolina,®* Utah,!°® and Wyoming. But
where the statute requires the nature, character and sex of the
animal to be stated, it was held in Georgia that the word |
“horse” was not sufficiently specific.?° In Alabama, where
the statute uses the words “horse, mare, gelding,” etc., it was
said: “When a generic term employed in a statute is suc-
ceeded by one more definite in its meaning, it is necessary
in an indictment predicated upon such statute that the latter
term should be used” ; and it was accordingly held that a geld-
ing could not be shown, under an indictment for stealing a
“horse.” 111. So in Texas, where the statute was similar, the
court said that “horse” was “used as synonymous with the
word ‘stallion’ or at least was not in that connection intended
to include ‘gelding, mare or colt.’” 142 But under the Re-
vised Penal Code “horse” is used in a generic sense and in-
cludes a gelding’! and a mare.!1+

Peo. v. Pico, 62 Cal. 50.

*8 Peo. v. Monteith, 73 Cal. 7.

** Baldwin v. Peo., 2 Ill. (1 Scam.) 304.

5 State v. Donnegan, 34 Mo. 67.

* Wiley v. State, 3 Coldw. (Tenn.) 362. That a gelding cannot be
shown, see Turley v. State, 3 Humph. (Tenn.) 323.

*7 State v. Dunnavant, 3 Brev. (S. C.) 9.

7° Peo. v. Butler, 2 Utah 504; Peo. v. Sensabaugh, Ibid. 473.

*” Fein v. Ty., 1 Wyo. 376.

™° Taylor v. State, 44 Ga. 263; Brown v. State, 86 id. 633.

™ State v. Plunket, 2 Stew. (Ala.) 11. And see Shubrick v. State, 2
S. C. 21, 23.

™ Banks v. State, 28 Tex. 644. And see Jordt v. State, 31 id. 571; Gibbs
uv. State, 34 id. 134; Gholston v. State, 33 id. 342.

"See Valesco v. State, 9 Tex. App. 76.

™ Davis v. State, 23 Tex. App. 210.

HORSE, MARE, GELDING, ETC. 181

In other States also it has been held that the word “horse”
in a statute is used in the sense of “stallion,” and that, conse-
quently, evidence that the animal was a gelding is a vari-
ance.t!® In Montana, where the indictment was for stealing
a “gelding,” evidence that the animal was a horse or colt was
held to be a fatal variance, the court saying: “In the indict-
ment we have the description of one definite well-known ob-
ject—in the proof a term which may be applied to a half-
dozen different objects.’’ 116

A mule is not a “horse, mare or gelding” in a statute
against larceny.1!7

A ridgling (7. e., a half castrated horse) is not a “gelding”
but a “horse,” and evidence of the animal being a ridgling
was held not to support an indictment for stealing a “geld-
ing ;” and where the court below instructed the jury that proof
which showed that the animal, though but partially castrated,
was so castrated as to appear and be considered as a gelding,
would sustain the allegation that it was a gelding, this was
held erroneous as upon the weight of the evidence.118

Under a statute imposing a penalty on receiving and con-
cealing stolen “goods or articles,” a horse is included in these
terms.119

5%. Cattle, Sheep, Hog, Deer—The term “cattle” in an indict-
ment has been held to designate domestic quadrupeds gener-
ally, while “neat cattle” includes only cattle of the bovine
genus.12° But where a code made express provision for the
punishment of the theft of sheep, goats, horses, etc., it was

‘held that “cattle’’ meant domesticated animals of the bovine

™ State v. Buckles, 26 Kan. 237; Jordt v. State, 4 O. 348. And see
State v. McDonald, 10 Mont. 21, 23.

4° State v. McDonald, supra. ™™ Com. v. Edwards, 10 Phila. 215.

“* Brisco uv. State, 4 Tex. App. 219.

4° State v. Ward, 49 Conn. 420.

See also as to horse-stealing, Wells v. State, 11 Neb. 409; U. S. v.
Flanakin, Hempst. (U. S.) 30; Davis v. State, to Lea (Tenn.) 707.

*° State v. Lawn, 80 Mo. 241. See also § 121, infra.

182 THEFT AND REMOVAL OF ANIMAIS.

genus and did not include the other animals.’*1_ And in the
same State it was held that “cattle” in an indictment must
be thus confined in its application.1??

Where on an indictment for stealing a cow it was shown
that the animal was only two and a half years old and had
never had a calf, and that such a female, however old, if she
has never had a calf, is called a heifer, it was held that as the
English statute particularly mentions both cows and heifers,
the variance was a fatal one.1*3 But in this country it appears
to be held that the word “cow” includes a “heifer.” 14

Upon an indictment for stealing a “cow,” one cannot be
convicted of stealing a bull.12® But a steer has been held to
be an “animal of the cow kind” within the meaning of a stat-
ute.12® Under an indictment for stealing a steer which is a
castrated animal, proof of the beast being a bull is a vari-
ance.177 A “beef” includes a bull, a cow or an ox in their
full-grown state.1°

Although the English statute specifies “ram, ewe, sheep or
lamb,” it has been held that the word “sheep” includes the
others and is a sufficient designation of the animal stolen.12°
And, under the Delaware statute, a “sheep” includes a
lamb."#° One who receives a sheep feloniously stolen alive
and killed may be stated to have received “mutton.” 131

A pig may be described as a “hog” in an indictment.12?

™ McIntosh v. State, 18 Tex. App. 284; Hubotter v. State, 32 Tex. 479.

1%? State v. Murphy, 39 Tex. 46.

™ Rex v. Cook, 2 East P. C. 616; 1 Leach C. C. 10s.

That the species and sex of cattle must be stated in an indictment, see
Rex v. Chalkley, R. & R. C. C. 258.

™ Peo. v. Soto, 49 Cal. 67; State v. Crow, 107 Mo. 341; Parker v. State,
39 Ala. 365.

% State v. McMinn, 34 Ark. 160.

¥° Watson v. State, 55 Ala. 150. And see as to “‘steer” in an indictment,
State v. Abbott, 20 Vt. 537; State v. Lange, 22 Tex. sg1.

1 State v. Royster, 65 N. C. 530. ™ Smith v. State, 24 Tex. App. 290.

™ Reg. v. McCulley, 2 M. C. C. 34; Reg. v. Spicer, 1 C. & K. 699.

* State v. Tootle, 2 Harr. (Del.) 541.

™ Rex v. Cowell, 2 East P. C. 617.

Washington v. State, 58 Ala. 355; Lavender v. State, 60 id. 60.

CATTLE, SHEEP, HOG, DEER. 183

On the other hand, it has been held that where a statute uses
the word “hog,” an indictment for stealing a “pig” was
wrong.!83 A shoat may be shown under an indictment for
stealing a “hog.” “For animals of this description swine is
the original generic term. But the legislature of this State,
in legislating on the subject of mismarking, use the term hog
as the generic term and consider all animals of that kind as
hogs irrespective of their ages.” 184

The word “deer” in a statute includes all kinds of deer of
all ages and both sexes—consequently a fawn is a “deer.” 195

58. Living and Dead Animals; Evidence.—An indictment for
the larceny of a live animal need not state it to be alive, as that
will be presumed. It is otherwise of a dead animal, and evi-
dence that the animal was dead when stolen cannot be given
unless that fact is especially alleged in the indictment, even
where the animal has the same appellation whether dead or
alive.8® Therefore, under an indictment for stealing “one
peahen” and “one turkey,” it cannot be shown that they were
taken alive in another State and brought dead into the State
where the charge was brought.187 But where A. was in-
dicted for receiving a lamb, and it was dead at the time he re-
ceived it, the indictment was held sufficient under the circum-
stances, it being immaterial as to his offense whether it was
then alive or dead, the offense and punishment being the same
in either case.188 If an animal fere nature be alleged as dead,
but the proof shows it to have been alive when taken, the vari-
ance is fatal: there is no larceny.1°®

A statute making it larceny to steal a domestic animal

*8 State v. McLain, 2 Brev. (S. C.) 443.

See Shubrick v. State, 2 S. C. 21, where it was held that under an in-
dictment for shooting a hog, evidence may be given of shooting a sow.

4 State v. Godet, 7 Ired. L. (N. C.) 210.

* Reg. v. Strange, 1 Cox C. C. 58.

8 Rex v. Edwards, Russ. & Ry. C. C. 497; Com. v. Beaman, 8 Gray
(Mass.) 497. See State v. Jenkins, 6 Jones L. (N. C.) 19.

7 Com. v. Beaman, supra. ® Rex v. Puckering, 7 M. C. C. 242.

* Reg. uv. Roe, I1 Cox C. C. 554.

184 THEFT AND REMOVAL OF ANIMALS.

means a living one and not a carcass, and where an animal is
killed and carried away, the defendant can be convicted only
where the killing as well as the carrying away was done with
the intent to appropriate the body.t#® In an English case
where it was held that “one ham of the value of . . . of the
goods and chattels of . . .” was a sufficient description of
the article stolen, it was said: “The doctrine respecting the
description of animals in an indictment applies only to live
animals, not to parts of the carcasses of animals when dead,
such as a boar’s head. Do you find in works on natural his-
tory that there is any living animal called a ham?” **t

Possession of the animal is not alone prima facie evidence
of guilt42 In a prosecution for stealing a particular horse,
it was held that evidence could not be given that the defend-
ant was associated with horse thieves and subsequently con-
spired to steal horses.1#8 So, it was held that the State could
not prove the possession by the accused of other cattle than
those named in the indictment unless it were shown that they
were taken at the same time and by the same persons, and
that, if such testimony were admitted, it would be error to
exclude evidence that the defendant had been tried for the
theft of other cattle and acquitted.1** Where persons steal
two animals from two different herds having different owners,
taking one about an hour after the other, the stealing of each
animal was a complete and independent offense and an ac-
quittal as to one is not an acquittal as to the other.145 Evi-
dence as to what became of the stolen animals after the de-
fendant’s arrest is inadmissible.1*®

“ Hunt v. State, 55 Ala. 138. And see Peo. v. Smith, 112 Cal. 333.

™ Patteson, J., in Reg. v. Gallears, 1 Den. C. C. soz.

™ Schindler v. State, 15 Tex. App. 304; Pettigrew v. State, 12 id. 225;
Alexander v. State, 60 Miss. 953. See Gomez v. State, 15 Tex. App. 64.

“ Cheny v. State, 7 O. 222. As to the admissibility of the sayings and
doings of an accomplice, see State v. Cole, 22 Kan. 474.

“ Ivey v. State, 43 Tex. 425. And see State v. Labertew, 55 Kan. 674.

“ State v. English, 14 Mont. 390.

“° Clay v. State (Tex. Cr.), 51 S. W. Rep. 212.

LIVING AND DEAD ANIMALS; EVIDENCE. 185

In a trial for the larceny of a cow it was held not error to
allow the hide sold by the defendant to be exhibited to the
jury and pieces of the ears and dewlap found at the place of
killing to be fitted to the hide in the jury’s presence, this
being done to identify the animal and show that the marks
and brands had been mutilated.14"

It is not necessary to prove by direct evidence that the ani-
mal was of some value. This may be shown inferentially.1*®
In the absence of a market price for the animals, evidence of
their actual value is admissible.1*

59. Driving Animals from the Range.—Kindred to the crime
of larceny is the statutory offense of driving animals from
their accustomed range with felonious intent. It was for-
merly held in Texas that under an indictment for theft the
defendant might be convicted of this offense.®° But this rule
was departed from in a later case, on the ground that the of-
fense in question contains other elements than ordinary theft
and requires a different character of proof.1®

One who under the owner’s instruction drives out of a
pasture cattle owned by a third person that had been turned
into the pasture without permission, is not guilty of “wilfully”
driving them from their accustomed range, though the owner
of the cattle owned acres enclosed by his own consent in the
pasture without reserving to himself a right of pasturage.’*?
The word “wilfully” in this connection means “with evil in-
tent or without reasonable ground to believe that the act was
lawful.” 153 Where by one act the cattle of different persons

47 State v. Crow, 107 Mo. 341. And see Ledbetter v. State, 35 Tex.
Cr. 195.

“8 Houston v. State, 13 Ark. 66.

“° State v. Walker (Mo.), 24 S. W. Rep. rort.

2” Foster v. State, 21 Tex. App. 80; Smith v. State, Ibid. 133; Campbell
v. State, 22 id. 262.

*) Long v. State (Tex. Cr.), 46 S. W. Rep. 821.

*? Wells v. State (Tex. App.), 13 S. W. Rep. 889.

*8 Yoakum v. State, 21 Tex. App. 260; Mahle v. State (Tex. App.), 13
S. W. Rep. 999.

186 THEFT AND REMOVAL OF ANIMALS.

are driven from their range, the act may be prosecuted in one
indictment.1*4

In an indictment for unlawfully driving cattle out of the
country without inspection, it must be alleged that they were
not the defendant’s property and were driven without the
owner’s authority.1°° Where they are driven from a range
it is not necessary to describe the range nor to allege how far
they have been driven.15* “The expression ‘range’ or ‘ac-
customed range,’ as used in the statute, is matter of local de-
scription and, unlike a generic term requiring the species to
be stated, it admits of proof under the general allegation,
without defining by averments the limits of the range.” 1°”

60. Altering Brands and Marks.—Another statutory offense
similar to larceny is the altering of the brands or marks of
animals with fraudulent intent. This intent is an essential
ingredient :15° the want of the owner’s consent is not alone
sufficient.15° The intent and want of consent should both be
alleged in the indictment ;1®° and so should the ownership of
the animal.1®! And a variance in the proof of ownership is
fatal.16? But an indictment will lie for unlawfully branding
a colt whose owner is unknown.1®* And where the mother
of the animal branded was milked by the defendant and went
with his cattle for four years but the defendant always said she
was an estray, a charge that the possession for four years
made her the defendant’s property was erroneous.!®* Mere

™ Long v. State, 43 Tex. 467. *5 Heard v. State, 8 Tex. App. 466.

*° Darnell v. State, 43 Tex. 147.

*7 State v. Thompson, 4o Tex. 515; Foster v. State, 21 Tex. App. 80.

*8 Morgan v. State, 13 Fla. 671; State v. Matthews, 20 Mo. 55.

* Fossett v. State, 11 Tex. App. 40; Montgomery v. State (Tex. App.),
13 S. W. Rep. tooo.

© State v. Hall, 27 Tex. 333.

In State v. Stelly, 48 La. Ann. 1478, it was held that an indictment for
feloniously marking a hog need not allege the intent to steal nor whose or
what the mark was.

™ State v. Faucett, 15 Tex. 584. °™ Mayes v. State, 33 Tex. 340.

7° State v. Haws, 41 Tex. 161.

* Reed v. State (Tex. Cr.), 22 S. W. Rep. 402.

ALTERING BRANDS AND MARKS. 187

declarations of the owner and others are not sufficient to show
want of consent.1®

In the indictment it is not necessary to set forth the original
mark nor in what manner the alteration was made.1®* But
where a particular method of alteration is alleged, it must be
proved as averred.1® Putting a different brand on an ani-
mal with intent to claim it, though without defacing the
former brand, is a violation of the statute.1®* So an altera-
tion may be effected by merely clipping the hair at the orig-
inal brand so as to change it toa new one. “The questions
are, was the act done with a fraudulent intent, and has the
brand been changed or altered from what it was to another
and different brand? . . . Ifso, it matters not by what means
the alteration was effected ; the offense is complete.” 1°

Where the only evidence was that the lamb was found in
an open wood with the mark of the owner changed to that
of the defendant, the conviction was set aside.17° The evi-
dence must show the identity of the animals marked.1™

Where the indictment alleged the horse to be the property
of an estate, this was held bad.17? So, where it simply
charged the offense of marking a hog without using the stat-
utory words “wilfully and knowingly.” +78

The subject of brands and marks as evidence of ownership
has been already considered.'"4

61. Civil Remedies; Measure of Damages.—The usual civil
actions may of course be brought in cases of unlawful depriva-
tion or detention of animals, and the ordinary defences may

**© West v. State, 32 Tex. 651.

* State v. O’Neal, 7 Ired. L. (N. C.) 251. And see State v. Stelly,
supra.

*" Davis v. State, 13 Tex. App. 215.

**8 Atzroth v. State, 10 Fla. 207; Linney v. State, 6 Tex. 1.

7 Slaughter v. State, 7 Tex. App. 123.

” Dobson v. State, 67 Miss. 330. And see Mizell v. State, 38 Fla. 20.

7 Peo, v. Swasey, 6 Utah 93. ™” Peo. v. Hall, 19 Cal. 425.

™8 State v. Roberts, 3 Brev. (S. C.) 139.

4 See § 18, supra.

188 THEFT AND REMOVAL OF ANIMALS.

be pleaded. Where one drove from his own pasture into the
highway another’s cow and notified a field-driver to impound
it, after the owner had failed to remove it on notice, the
former was held not liable for the conversion.17°

If the owner of a horse, which has been sold without au-
thority by his bailee, forcibly enters the premises of the pur-
chaser and takes the horse, he commits a trespass.17* But,
without a previous demand, he may bring an action against
such a purchaser, though a bona fide one, for conversion.17*

Where the plaintiff had only a possessory right to animals
and they strayed voluntarily on the defendant’s premises and
the latter merely permitted them to remain there till they
were carried off by soldiers, it was held that he was not liable
in trespass for their taking and carrying away.!78

A stranger’s horses tied on the premises are not distrain-
able for rent, if in actual use at the time of the distress,1"® nor
are animals of which no view has been had or which, after
view, have gone out of the lord’s fee, unless they have been
driven out by the tenant.18° And, under a law exempting
certain property from forced sale in order to secure to each
family a means of support, it was held that the words “two
horses” would include geldings, mares or mules.18! So the
word “horse” in an exemption law has been held to include
an ass'®? and an unbroken colt.188

The measure of damages where a horse or working animal
is unlawfully taken and detained is not merely its value but

the value of its use during the time of detention, when that
exceeds legal interest.184

*° Bonney v. Smith, 121 Mass. I55.

*° Salisbury v. Green, 17 R. I. 758—wrongful taking from the owner’s
possession and fresh pursuit not being shown.

*’ Gilmore v. Newton, 9 Allen (Mass.) 171.

** Pope v. Cordell, 47 Mo. 251.

* Couch v. Crawford, 10 U. C. C. P. gor.

*° Co. Litt. 161 a. ™ Allison v. Brookshire, 38 Tex. 199.

* Richardson v. Duncan, 2 Heisk. (Tenn.) 220.

*8 Hall v. Miller (Tex. Civ. App.), 51 S. W. Rep. 36.

™ Hartley State Bank v. McCorkell (Ia.), 60 N. W. Rep. 107, where it

CIVIL REMEDIES; MEASURE OF DAMAGES. 189

But the general rule that the plaintiff is confined to his legal
interest is applicable to working animals where he had re-
ceived them in pledge under an express contract to sell them
and account for the proceeds, and the original owner had
ceased to work them, and no longer intended to do so—the
plaintiff having no absolute ownership nor any right to work
the teams.186

Where the owner of horses attached had to hire others to
do the work of those taken, in order to perform a previous
contract, it was held that this expense might be recovered.1%¢
But, in an action of trespass for wrongfully carrying away
the plaintiff's mule and mare while he was engaged in farm-
ing, it was held that damages resulting therefrom to his farm-
ing operations were too remote to be recovered.1®’ In
another case, it was held that the measure of damages for the
seizure of exempt horses at a time when others could not be
procured to cultivate crops, was the damage to the crop if
that exceeded the value of their use, but, if others could have
been procured, the measure of damages would be the value of
their use during the time of detention, the court adding,
“The last measure might not be the correct rule for a long
period of detention.” 18°

A bona fide purchaser of stolen animals sold in market overt
cannot, in answer to a claim for them by the original owner
after the conviction of the thief, counter-claim for the cost of

was said: “Cases are cited wherein it is held that the value of the prop-
erty with interest was the measure of recovery. Such a rule would afford
full compensation in instances where the use of which the party was de-
prived had no value, or its value did not exceed the interest allowed. In
many cases, and especially where work animals were the subject of the
controversy, a different rule has been applied.”

See, also, Hutchinson v. Hutchinson, 102 Mich. 635; Allen v. Fox,
51 N. Y. 562; Williams v. Phelps, 16 Wis. 80; Farrar v. Eash, 6 Ind.
App. 238.

*® Johnson v. Bailey, 17 Colo. 59.

© State v. McKeon, 25 Mo. App. 667.

*" Street v. Sinclair, 71 Ala. IIo.

#8 Steel v. Metcalf, 4 Tex. Civ. App. 313.

190 THEFT AND REMOVAL OF ANIMALS.

their keep while they were in his possession, as they were his
property until on the conviction the title revested in the orig-

inal owner.18®

Where, under an order of attachment, cattle were taken
and removed from their accustomed range and placed in a
herder’s charge on a new range where there was little and
poor grass and water, and, owing to the removal and inferior
care, they failed to make the customary growth in weight, it
was held that though they did not lose in weight, the failure
to make the ordinary increase therein was a gain prevented,
for which the owner was entitled to be compensated, if the
attachment was wrongfully obtained. The court said: “Of
course, absolute certainty is not attainable, as in casting up
the figures of an account; but nevertheless there are certain
laws of feeding and growth well understood among cattle-
men and whose results work out with sufficient certainty for
business calculations and judicial investigations. The raising
of cattle for market has been an extensive and ofttimes profit-
able business in this State, and it would be strange if one
could wrongfully take from the owner a herd of cattle, remove
them to a poorer range, feed them on inferior food and so
treat them that during the growing season they do not grow
at all, and then at its end return them, saying, as did the un-
faithful servant in the parable who returned the single talent
without increase, ‘Lo! there hast thou that is thine,’ and still
be under no liability to respond in damages to such owner.
We do not think the law so deficient. It seems clear that
the owner is damaged, that the damages may be determined
to a reasonable certainty, and that the wrongdoer is bound
to make good the damages.” 19°

The effect of driving away and close herding cattle during
the calving season may be testified to by an expert, and evi-
dence is admissible as to the increase that year as compared

*° Walker v. Matthews, 8 Q. B. D. roo.
™ Hoge v. Norton, 22 Kan. 374.

CIVIL REMEDIES; MEASURE OF DAMAGES. 191

with other years.!®! Where no injury has been done and the
land to which animals are removed is superior to the other,
the court has refused to reverse a judgment for the defend-
ant.19?

Under a statute making it unlawful to tear down a division
fence except upon six months’ notice, it was held that one
damaged thereby might recover the value of his cattle that
escaped and were not recovered after due diligence, but not
of those alleged to have died during the ensuing winter
months; and that he might also recover the reasonable ex-
pense of gathering and trying to gather the scattered cattle,
and damages for the injury to his pasture and the consump-
tion of grass by the defendant’s cattle.1%*

™ Proctor v. Irvin (Mont.), 57 Pac. Rep. 183.
™ Hecht v. Harrison, 5 Wyo. 279.
*® St. Louis Cattle Co. v. Gholson (Tex. Civ. App.), 30 S. W. Rep. 269.

TITLE. i

RIGHTS OF OWNERS OF ANIMALS.

CHAPTER III.

INJURIES TO ANIMALS ON HIGHWAYS.

62. Injuries resulting from acci- 65. Where fright is caused by the

dental fright and a defect in defect.
the highway; the Massachu- 66. Character of objects causing
setts rule. fright.

63. Exceptions to the above rule 67. Injury from other causes.
where the lack of control is 68. Contributory negligence.
but momentary. 69. Evidence; damages.

64. The rule that the municipality
is liable in such cases.

62. Injuries Resulting from Accidental Fright and a Defect in
the Highway; the Massachusetts Rule—A very common ele-
ment in injuries received by or through animals in public
places is fright, making them, for a time at least, pass out of
the control of those in charge of them and become factors in
working their own harm or that of others.1 Complicated
questions of responsibility and of cause and effect naturally
arise in such cases, and it is not surprising to find that decided
differences of opinion exist as to the persons on whom the
final liability rests. We shall consider, in the first place, the
position of municipal corporations with respect to injuries
sustained by reason of frightened animals coming in contact
with a defect in a road, bridge, etc., where the fright is not

*For the liability of railway companies for injuries resulting from the
fright of animals, see § 133, infra.

192

INJURIES FROM FRIGHT AND DEFECT IN HIGHWAY. 193

caused by such defect. As two distinct and irreconcilable
rules have been laid down on this subject, it will be convenient
to group together the decisions under each head according to
States.

In Massachusetts it was said in an early case that “when
the loss is the combined result of an accident and of the defect
in the road and the damage would not have been sustained
but for the defect, although the primary cause be a pure ac-
cident, yet, if there be no fault or negligence on the part of
the plaintiff, if the accident be one which common prudence
and sagacity could not have foreseen and provided against,
the town is liable. This doctrine in no respect conflicts with
the well-settled rule requiring the plaintiff to use ordinary
care and diligence, and that without showing this he cannot
recover, though the road be defective and the damage be
occasioned by the combined effect of a defective road and
want of care and skill in avoiding the injury.”* And ina
later case it is said that the plaintiff must not only be driving
with due care and skill but that he “must be using a proper
horse and vehicle, with strong and suitable harness, and that,
if there be any defect in any of these particulars, and such
defect contributes to the disaster, the town is not liable, al-
though the way be defective. The reason is, because it is
impossible to know what proportion of the damage is oc-
casioned by one and what by the other, or whether there
would have been any damage at all but for the traveller’s own
default.” 8

These cases seem to hold that the plaintiff may recover,
except where he is in some way negligent.* But in Davis v.

* Palmer v. Andover, 2 Cush. (Mass.) 600, 608.

® Murdock v. Warwick, 4 Gray (Mass.) 178.

* See Rowell v. Lowell, 7 Gray (Mass.) 102, where it is said: “We think
the only exception to the rule that the plaintiff cannot recover unless the
defect in the highway was the sole cause of the injury, must be one like
that in Palmer v. Andover, where the contributing cause was a pure
accident and one which common prudence and sagacity could not have
foreseen and provided against.”

13

194 INJURIES TO ANIMALS ON HIGHWAYS.

Dudiey® it was held broadly that where a horse, frightened
by an accident, breaks away from his driver and escapes from
all control and afterwards is injured by a defect in the high-
way, the town is not liable in damages unless the final accident
would have happened even if the horse had been under con-
trol. The court distinguished Palmer v. Andover thus:
“Here the accident and injury were not coincident, but were
separate and produced by separate causes. The effect of the
accident as a procuring cause was complete when the horse,
frightened by the falling of the crossbar and thills upon his
heels, became detached from the sleigh and had escaped from
the control of the driver. The blind violence of the animal,
acting without guidance or direction, became, in the course
and order of incidents which ensued, the supervening and
proximate cause of the injury inflicted by his running against
the wood-pile, which constituted an unlawful obstruction and
defect in the highway. In this succession of events, it hap-
pened that the accident placed the owner in a situation where
it was out of his power to exercise the care over the horse
while this new cause was in operation and until it had con-
tributed to produce the disaster by which his leg was broken.”
This case has been followed in the later cases and undoubt-
edly lays down the law as it is at this day: the defect in the
highway must have been the sole cause of the injury, in order
for the plaintiff to recover. Accordingly towns are not re-
quired to fence their roads with a view to prevent a frightened
animal from escaping out of them. The essential fact where
a railing is required is that there is some dangerous object
outside upon which the traveller may come, if not sufficiently

°4 Allen (Mass.) 557.

°‘See Titus v. Northbridge, 97 Mass. 258; Horton v, Taunton, Ibid.
266 n.; Babson v. Rockport, 101 id. 93; Wright v. Templeton, 132 id. 49;
Fogg v. Nahant, 106 id. 278, where it is said: “Tf, without his fault or
negligence on his part, his horses have escaped from his control, ... and
this condition of things is not produced by a defect in the way, the town
is not responsible.”

INJURIES FROM FRIGHT AND DEFECT IN HIGHWAY. 195

warned. The necessity of the railing “must be determined by
the character of the place or object between which and the
travelled road it is claimed that the barrier should be inter-
posed.” 7 And where a horse, driven along a private way
toward a street at right angles to it, became uncontrollable so
that the driver could not make him turn safely but drove him
directly across the street and down an unfenced bank oppo-
site, it was held that the want of a railing, even if it had been
useful, was not the sole cause of the injury. “The uncon-
trollable condition of the horse contributed directly to it, and
that condition arose outside of the limits of the highway and
at such a distance from the place of the alleged defect that
the city is not responsible.” ®

In Maine, a similar rule to that in Massachusetts prevails,
and it is well established that where the animal is frightened
by a cause for which the town is not responsible, no liability
is incurred by his subsequent injury through a defect in the
highway, where such injury would not otherwise have oc-
curred.®

In Pennsylvania, where a horse was frightened at an object
on a highway for the presence of which the township was not
responsible and, turning suddenly, broke off a wheel and
dragged and overturned the carriage on a stone heap at the
roadside at a point where the roadway was not unsafe for
ordinary travel, it was held that the township was not liable.
The court said: “The township is not an insurer against all
possible accidents, nor is it bound to anticipate the danger to
which a broken wagon or a frightened horse may expose the
driver. . . . It is necessary to inquire further whether the
accident was the natural or probable result of any act or omis-

7 Adams v. Natick, 13 Allen (Mass.) 4290. And see Scannal v. Cam-
bridge, 163 Mass. 91.

* Higgins v. Boston, 148 Mass. 484.

® Moore v. Abbot, 32 Me. 46; Farrar v. Greene, Ibid. 574; Coombs v.
Topsham, 38 id. 204; Anderson v. Bath, 42 id. 346; Moulton v. Sanford,
51 id. 127; Perkins v. Fayette, 68 id. 152; Spaulding v. Winslow, 74 id. 528.

Cf. Verrill v. Minot, 31 Me. 299.

196 INJURIES TO ANIMALS ON HIGHWAYS.

sion of the township officers which rendered the highway un-
safe for the purposes of travel, conducted in the ordinary
means of conveyance. If it was, then the plaintiff ought to
recover, and the fright of her horse, the breaking of her
wagon, and her inability to guide her frightened animal
should not stand in the way of her recovery.” *°

In another case it was held that where an injury was caused
in part by the fright of a horse and in part by the negligence
of the township supervisors, the township was liable“? But
in a later case, this decision was overruled and it was held that
where a horse fell and, in its struggle to regain its feet, went
over a declivity where the city had neglected to erect a bar-
rier, the fall was the proximate cause of the injury and the
city was not liable.”

But the rule in Massachusetts and Maine was not clearly
adopted till it was decided where a horse hitched to a vehicle
took fright at a donkey drawing a cart loaded with tin cans
and ran away, wrecking one of the wheels, which dragged
upon the ground till it came to a hole negligently left upon
the highway by the township, and the occupants were thrown
out and injured—that the proximate cause of the injury was
the horse’s fright and, as that was not caused by any neglect
of duty on the part of the authorities, the township was not
liable. The court said: “The concurrence of that which is
ordinary with a party’s negligence does not relieve him from
responsibility for the resultant injury. Examples of such
concurrence may be found in cases where, by reason of causes
known to the public authorities, horses are likely to become
frightened and in their sudden fright plunge over an un-
guarded precipice or rush upon some danger within the high-
way for the existence of which the authorities are responsible.

* Jackson Tp. v. Wagner, 127 Pa. St. 184. And see Worrilow v. Upper
Chichester Tp., 149 id. 4o; Lehigh Co. v. Hoffort, 116 id. 119; Bishop v.
Schuylkill (Pa.), 8 Atl. Rep. 449; Heister 7. Fawn Tp., 189 Pa. St. 253.

Wagner v. Jackson Tp., 133 Pa. St. 61.

* Herr v. Lebanon, 149 Pa. St. 222.

INJURIES FROM FRIGHT AND DEFECT IN HIGHWAY. 197

In such cases the consequences of the neglect of duty are
natural and probable and ought therefore to be foreseen.
But when, from extraordinary causes, for the existence of
which the supervisors are not responsible and of which they
cannot be presumed to have had notice, a driver loses control
of his horses and they come in contact with a defect in the
highway, there is no more reason for holding the township
answerable for a resultant injury than there is for holding any
_ other party responsible for the result of the concurrence of
something which he could not foresee with his negligence.
. . . The cases must be rare in which an injury can be said
to be the result of the negligence of a party when there is an-
other and primary efficient proximate cause, wholly independ-
ent of such negligence and for which the party charged with
negligence is in no way responsible. In such cases it would
be incumbent on the plaintiff to show that the accident would
have happened without the concurrence of the primary effi-
cient proximate cause.” 1%

With reference to the degree of care that municipal authori-
ties must exercise in order to avoid the consequences of the
fright of animals, it was said in Lower Macungie Tp. v.
Merkhoffer :1* “It was not a defence to the township to show
that by careful driving accident might have been avoided at
the place in question. That would fall far short of what is
the purpose of a public highway. It must be kept in such
repair that even skittish animals may be employed without
risk of danger on it, by reason of the condition of the road.”

So, if a dangerous place is left unfenced and a horse in con-
sequence of sudden fright goes over it, the municipality is lia-
ble,!5 and it is no defence that the injury was the combined

* Schaeffer v. Jackson Tp., 150 Pa. St. 145. See also Chartiers Tp. v.
Phillips, 122 id. 601.

“1 Pa. St. 276, 280. But see Trexler v. Greenwich Tp., 168 id. 214,
where this statement is qualified and called ‘“‘too broad.”

“ Hey v. Philadelphia, 81 Pa. St. 44; Newlin Tp. v. Davis, 77 id. 317;
Pittston v. Hart, 89 id. 389; Wellman v. Susq. Depot, 167 id. 239;
Plymouth Tp. v. Graver, 125 id. 24; Kitchen v. Union Tp., 171 id.. 145;

198 INJURIES TO ANIMALS ON HIGHWAYS.

effect of its own negligence and that ofa third person.*® The
question of the municipality’s negligence is one for the jury.’”
But where a frightened horse rushed into an unfenced pond
it was held that under the circumstances the defendants were
not liable, the court saying: “The precise limits of liability
where the element of an unruly or frightened horse enters into
the causes of an accident on a public highway, have been the
subject of controversy and some difficulty. It is conceded
that our cases hold the township authorities to a more exact-
ing rule than obtains in some other States, but none of them
go so far as to say that they must make the roads safe for run-
away horses. . . . Apart from the fright of the horse, there
was nothing to show any danger to travel from the existence
of the pond and the absence of a fence between it and the
road. It is in this respect that the present differs from the
line of cases of which Plymouth Tp. v. Graver!® . . . is the
exemplar. There, as here, the roadbed was without defect,
but it was along and immediately adjacent to the tracks of
the railroad, where the passage of trains had a natural ten-
dency to frighten horses. The road, therefore, as it existed,
contained the elements of danger to ordinary travel; and this
court held that it was the duty of the township to anticipate
and provide against such danger. The element of danger
to ordinary travel is wanting in the present case; and there-
fore the jury should have been instructed that there was no
sufficient evidence on which to hold the defendants liable.” !°

So a pile of stones on a roadside will not render a borough
liable for an injury to a person thrown upon them by the fall
of a horse he is riding, where the fright of the horse is caused

Yoders v. Amwell Tp., 172 id. 447; Cage v. Franklin Tp., 8 Pa. Super.
Ct. 89.

* Burrell Tp. v. Uncapher, 117 Pa. St. 353.

* Ewing v. Versailles Tp., 146 Pa. St. 309; Bitting v. Maxatawny Tp.,
180 id. 357.

* 125 Pa. St. 24, cited supra.

* Horstick v. Dunkle, 145 Pa. St. 220, 229. And see Card v. Columbia
Tp., 197 id. 254.

INJURIES FROM FRIGHT AND DEFECT IN HIGHWAY. 199

by the shooting of guns near the road and plenty of room
has been left for travel on the highway, which is not shown
to be either insufficient or defective. ‘The shooting was an
extraordinary circumstance for which the borough was in no
sense responsible and against the consequences of which they
were not bound to take precautions.” ?°

The decisions in Wisconsin seem to have gone through
somewhat the same process of change as those in Massachu-
setts, which they profess to follow. In Dreher v. Fitchburg”?
it was held that an injury due in part to the breaking of an
axle and in part to a defect in the highway was one for which
a town was liable. The Maine cases are especially disap-
proved of, and those of Vermont and New Hampshire [to be
considered later] followed. In Houfe v. Fulton?* the prin-
ciple laid down in Palmer v. Andover?* was adopted, and it
was held that where the plaintiff's horse suddenly stopped,
staggered, fell sideways and went over the side of a bridge
where there was no railing, the town was liable, there being
no negligence on the plaintiff’s part. The court said: “The
question thus presented is by no means an easy one and, as
naturally might be expected, there is clear conflict of author-
ity upon it. It has undergone most thorough examination
in the courts of several States where the statutes are in all
material respects like our own, and with directly opposite re-
sults. In Maine it has been held in a series of decisions that
the town is not liable under such circumstances. . . . In New
Hampshire and Vermont a broader construction has been
given to the statute in favor of the traveller, and a more ex-
tensive liability on the part of towns and cities been held to
be created by it... . The principle of these decisions has
been adopted by this court [citing Dreher v. Fitchburg,
supra]. . . . In Massachusetts there seems to be some con-
flict of decision upon the point. . . . The only exception to
the principles thus laid down, as yet to be found in the re-

” Kieffer v. Hummelstown, 151 Pa. St. 304.
1 22 Wis. 675. * 29 Wis. 296. *° 2 Cush. (Mass.) 600, cited supra.

200 INJURIES TO ANIMALS ON HIGHWAYS.

ported cases, is that above noted, where horses became un-
manageable in the manner and for the cause stated; and in
such cases it has been frequently decided that there can be no
recovery against the town, although the plaintiff or the driver
was in no fault. . . . Some of these cases seem to go upon
the principle that the horse being actually uncontrollable, the
plaintiff is unable to show the exercise of ordinary care or of
any care at the time of the injury in order to avoid it. Others
say that the flight or unmanageableness of the horses is the
misfortune of the traveller, of which he must bear the loss.
A better reason would seem to be, that it is not within the
spirit or intent of the statute that the towns shall be bound to
provide roads that shall be safe for frightened and runaway
horses; that the remedy is presumed to have been given only
to those who have their horses and carriages under their con-
trol at the time. But, whatever the true ground of such de-
cisions may be, or whether they are sound or not, it is un-
necessary to inquire here, since a recognized exception to
them is, that a horse is not to be considered uncontrollable
that merely shies or starts or is momentarily not controlled by
his driver.”

The exception last stated, within which the case may prop-
erly be considered as falling, is one that will be treated of in
the next section. It is extremely doubtful, however, whether
the dictum of the court as to the doctrine in Palmer v. An-
dover being still in full force in Massachusetts can be sus-
tained, in view of the later cases in that State. It should be
observed, however, that the court in Houfe v. Fulton refused
in terms to decide the point whether the rule as to the non-
liability of towns applied where a horse’s flight or unmanage-
ableness was not caused by a defect in the highway. This
point, however, arose in Jackson v. Bellevieu,2+ and it was

* 30 Wis. 250. And see Schillinger v. Verona, 96 id. 456; Ritger v. Mil-
waukee, 99 id. 190; Johnson v. Superior (Wis.), 78 N. W. Rep. 1100.

As to evidence of the condition of a street, see Olson v. Luck (Wis.),
79 N. W. Rep. 29.

INJURIES FROM FRIGHT AND DEFECT IN HIGHWAY. 201

there held that if the horse was running away and uncon-
trollable at the time and that condition was not caused by a
defect in the highway and the accident would not otherwise
have occurred, the plaintiff could not recover. “The town
is not liable because the owner or driver was in no situation
to exercise ordinary care or prudence to prevent the injury
at the time it happened, which proof is in all cases necessary
in order to charge the town, unless the situation or disability
of the driver in this respect is caused by the same or some
other defect in the highway.”

This rule was again laid down in Kelley v. Fond du Lac 75
where, however, under the circumstances the town was held
liable, the plaintiff being obliged to deviate from the trav-
elled part of a highway by reason of an obstruction therein
and one of his frightened horses being killed by a defect out-
side of the travelled part, though it was held that ordinarily
a town was not bound to keep its highways in a suitable con-
dition for their entire width. Where a steep bank was left
unguarded and a team ordinarily quiet became frightened
and backed over it, the city was held liable, the loss of con-
trol being but momentary, on the principle announced in
Houfe wv. Fulton, supra.?®

In West Virginia it was held that a county is liable in dam-
ages for an injury which is the combined result of the fright
of a horse at a pile of rock beside the roadway and the failure
of the county to provide a suitable guard rail along the ap-
proach toa bridge. After examining some of the cases above
cited, the court say: “From these authorities the proposition
is deduced that if sufficient time elapses between the fright
of the horse and the accident to permit the driver, being a
man of ordinary prudence, to make a proper effort to regain

* 31 Wis. 179. And where a buggy ran into a ditch across the highway,
making the horses run away, and the plaintiff later was thrown out and
injured, the ditch was held to be the proximate cause of the injury:
Donohue v. Warren, 95 id. 367.

Olson v. Chippewa Falls, 71 Wis. 558.

202 INJUKIES TO ANIMALS ON HIGHWAYS.

control of the frightened animal, even though he should fail,
the county would not be liable for its negligence, as the in-
jury must be attributed to the viciousness of the horse, rather
than to the defect in the highway. But if no such time inter-
venes, but the fright and accident are concurrent events, then
the county would be liable, for the very purpose of the law
in requiring dangerous approaches to bridges to be protected
by a sufficient railing is to guard against just such accidents,
rendered unavoidable by reason of their suddenness.” **

In an earlier case it was held that the frightening of horses
by calves coming out of bushes was the proximate cause of an
injury resulting to them, and not the narrowness of the road,
where the accident might have happened if the road had not
been narrow.?®

The decisions in Maine, Pennsylvania and Wisconsin were
approved of in a Colorado case.”9

63. Exceptions to the Above Rule Where the Lack of Control
is but Momentary.—An exception to the rule above given has
been already suggested in the quotations from some of the
opinions, viz.: that when an animal merely shies and starts and
the lack of control is but momentary, it is not considered un-
controllable so as to relieve the municipality from liability if
it is immediately injured by a defect in the highway.° This
is the well-established rule in Massachusetts.2!_ So, in Maine,
where a well-broken horse shied at a bird in the bushes and
jumping from the road fell through a defective part in a

* Rohrbough v. Barbour Co. Ct., 39 W. Va. 472.

78 Smith v. Kanawha Co., 33 W. Va. 713.

* Farmers’ High Line Canal & R. Co. v. Westlake, 23 Colo. 26.

See, also, the Michigan cases cited in § 64, infra, some of which seem
to lean to the Massachusetts doctrine.

® See Houfe v. Fulton, Olson v. Chippewa Falls, Rohrbough v. Bar-
bour Co. Ct., cited supra.

= Titus v. Northbridge, 97 Mass. 258; Horton v. Taunton, Ibid. 266 n.;
Britton v. Cummington, 107 id. 347; Wright v. Templeton, 132 id. 49;
Hinckley v. Somerset, 145 id. 326; Harris v. Great Barrington, 169 id. 271.

WHERE LACK OF CONTROL IS MOMENTARY. 203

bridge, it was held that the shying was not the proximate
cause of the injury and that the town was liable.22 And in
Wisconsin it was held that where one driving a team along
a public street could not keep them from leaving the beaten
track and turning into a ditch along the side thereof, the loss
of control being but momentary, this was not negligence
which would preclude his recovering.®?

In New York, where the plaintiff drove his horse and cart
on a pier belonging to the city which had become unsafe, and
the horse was frightened by a rush of water seen through a
hole and backed against the string-piece of the pier, which
was decayed, and the horse and cart fell into the water and
were lost, there being no evidence that the animal was unusu-
ally vicious or excitable, it was held that the fact of the fright
did not preclude recovery and that the horse was not uncon-
trollable because it shied or was momentarily not under the
driver’s control, and, as the cause of the fright was occasioned
by the defendant’s negligence, the question was one for the
jury.24 Whether the court adopted the principle of Titus v.
Northbridge was left undecided, but the later cases, to be con-
sidered in the next section, would seem to settle that question
in the negative, as the Massachusetts case only establishes an
exception to a rule which is not itself followed in New York.

64. The Rule that the Municipality is Liable in Such Cases.—
The rule considered in the preceding sections is not, however,
the one generally prevalent, and we shall now examine, by
States, the decisions that lay down a contrary doctrine.

In New Hampshire the rule is that where an injury is
caused in part by a defect in a highway and in part by such

® Aldrich v. Gorham, 77 Me. 287. And see Cleveland v. Bangor, 87
id. 259; Morsman v. Rockland, g1 id. 264.

* Hein v, Fairchild, 87 Wis. 258. And see Houfe v. Fulton, Olson v.
Chippewa Falls, cited supra.

* Macauley v. City of New York, 67 N. Y. 602. And see to the same
effect Kennedy v. Same, 73 id. 365.

204 INJURIES TO ANIMALS ON HIGHWAYS.

an accident as could not have been prevented by ordinary
care and prudence, the town is liable.*® If the vices of the
horse or a defect in the harness contributed, the plaintiff must
show both that he did not know of them and also that he
was in no fault in not so knowing. He must also have been
in the exercise of ordinary care in managing the team, which
is such care as mankind in general, not such as persons of the
same class as himself, are accustomed to exercise.?* If, not-
withstanding the horse’s fright, the accident would not have
happened but for the defect in the highway, the plaintiff may
recover, if exercising due care: all these questions are for the
jury.°6

The same rule was laid down in an early Vermont case,
where it was held that, notwithstanding the primary cause of
the injury was the failure of a nut or bolt which was insuffi-
ciently or improperly fastened, the plaintiff might recover for
the consequences of the defect in the road where he is himself
guilty of no negligence. The court said: “In every case of
damage occurring on the highway, we could suppose a state
of circumstances in which the injury would not have occurred.
If the team had not been too young or restive or too old or
too headstrong, or the harness had not been defective or the
carriage insufficient, no loss would have intervened. It is to
guard against these constantly occurring accidents that towns
are required to guard, in building highways. The traveller is
not bound to see to it that his carriage and harness is always
perfect, and his team of the most manageable character, and
in the most perfect training, before he ventures upon the high-
way. If he could be always sure of all this, he would not re-
quire any further guaranty of his safety, unless the roads were
absolutely impassable. If the plaintiff is in the exercise of
ordinary care and prudence, and the injury is attributable to

* Norris v. Litchfield, 35 N. H. 271; Clark v. Barrington, 41 id. 44.
* Winship v. Enfield, 42 N. H. 107.

* Tucker v. Henniker, 41 N. H. 317.

* Stark v. Lancaster, 57 N. H. 88,

RULE THAT MUNICIPALITY IS LIABLE. 205

the insufficiency of the road, combined with some accidental
cause, the defendants are liable.” *°

And in a somewhat similar case it is said: “Very good
reasons could be given that a traveller who ventures upon the
highway with an unsafe horse, a defective carriage or harness,
takes that risk upon himself; and if he thereby suffers injury,
though innocent, it is his misfortune, which he cannot cast
upon the town. Such is the well-established rule in Massa-
chusetts [citing Murdock v. Warwick*®]. . . . But there has
been a long and unbroken line of decisions in this State that
“if the plaintiff is in the exercise of ordinary care and pru-
dence, and the injury is attributable to the insufficiency of
the road, conspiring with some accidental cause, the defend-
ants are liable,’ . .. or, as was comprehensively stated in
Kelsey v. Glover*4 ...: ‘It has long been considered and
repeatedly adjudged that a duty does exist which binds the
town or corporation to provide reasonable security in refer-
ence to such accidents as may be expected to happen.’ ” *#

But where horses became frightened and ran into a hole in
ice near the highway, negligently left unguarded, and were
drowned, it was held that their owner, though free from neg-
ligence, could not recover from one whose duty it was to
place a guard around the hole, if the horses’ speed was so
great that a guard would not have prevented the accident.*

In Connecticut, where a horse, frightened by the breaking
of a carriage owing to a defect for which the plaintiff was
not responsible, ran away and fell over the side of a bridge
by reason of a defect in the railing, it was held that the turn-
pike company was liable, following the Vermont cases and
dissenting from those of Maine and Massachusetts.** And
in a similar case it was held not to be a decisive fact against
the right to recover, that the horses at the time they were

* Hunt v. Pownal, 9 Vt. 411. And see Kelsey v. Glover, 15 id. 708;
Allen v. Hancock, 16 id. 230.

4 Gray (Mass.) 178, cited in § 62, supra. * Cited supra.

” Hodge v. Bennington, 43 Vt. 450. * Sowles v. Moore, 65 Vt. 322.

“ Baldwin v. Greenwoods Turnp. Co., 40 Conn. 238.

206 INJURIES TO ANIMALS ON HIGHWAYS.

frightened were hitched outside of the highway upon the
owner’s premises and broke loose and ran along the highway
to the bridge.**

In New York it was decided in Ring v. Cohoes*® that,
though a municipal corporation is not bound to keep a street
in such a condition that damage may not be caused to run-
away horses, yet where the injury would not have been sus-
tained but for a defect in the highway and the driver has not
been at fault, the fact that the horse was at the time beyond
contro! is no defence. The rule in Massachusetts, Maine,
and Wisconsin is expressly dissented from and that in Ver-
’ mont, New Hampshire and Connecticut followed. In an-
other case it was held that a barricade built while a bridge
was being repaired need not serve as a barrier against a run-
away horse.** And where a road thirty feet wide was in good
condition and had a sidewalk ten feet wide, beyond which was
an unfenced bank twelve feet deep and no accident had hap-
pened in twelve years and the plaintiff’s horse, frightened by
a bicycle, went over the bank, injuring the plaintiff, it was
held that the failure to build a railing was not negligence.
“This was one of that class of accidents whose occurrence is
so rare, unexpected and unforeseen, that to hold the city re-
sponsible for a failure to guard against it, is to hold it toa
most extensive liability and to cause it to become substantially
an insurer against any accident which human care, skill or
foresight could prevent.” #8

The decision in Ring v. Cohoes, supra, has been followed
in the later cases.?®

* Ward v. North Haven, 43 Conn. 148. %o7 N. Y. 83.

“Lane v. Wheeler, 35 Hun (N. Y.) 606. And see Stacy v. Phelps, 47
id. 54, where it is said: “The warning required to protect the traveller
was not necessarily such as would stop a runaway team of horses and
save them from injury.”

* Hubbell v. Yonkers, 104 N. Y. 434.

” See Ivory v. Deer Park, 116 N. Y. 476; Wood v. Gilboa, 76 Hun (N.
Y.) 175; Roblee v. Indian Lake, 11 N. Y. App. Div. 435.

That a defect in the harness of which the plaintiff was ignorant is no
defence, see Putnam v. N. Y. Cent. & H. R. R. Co., 47 Hun (CN. Y.) 439.

RULE THAT MUNICIPALITY IS LIABLE. 207

In Georgia the negligent failure to put rails at the side of
a street or bridge renders the city liable as against one whose
horses are at the time frightened and running away.®°

In Iowa an action against the city may be maintained for
a defect in the highway, though the primary cause is an ac-
cident, as the running away of a horse, the breaking of a car-
riage, harness, etc., if the plaintiff was not at fault.54 But
where the plaintiff securely tied his horse to a post on a street
running along a precipitous ravine which was unfenced and
the horse, becoming frightened, broke loose, ran along the
street and plunged down the precipice, it was held that the
city was not liable.”

In a later case Moss v. Burlington, supra, was thus com-
mented on: “In that case the horse was not being driven by
the owner, so that if it were possible he could have controlled
it and directed its course. He had left it tied to a post. The
city was not liable for the insufficient fastening of the horse,
or for its escape through fright from sufficient fastenings.
The plaintiff’s injury was caused by the escape of the horse.
After it escaped it was free to go anywhere. In the case be-
fore us, plaintiff was attempting to exercise control of his
horse. Had there been no defect in the street, the accident
would not have happened.” The city was accordingly held
liable.53 So, if a horse backs off of the approach to a bridge
where ordinary care required a railing to be placed.**

In Indiana it was held in Crawfordsville v. Smith,®> adopt-

% Atlanta v. Wilson, 59 Ga. 544; Wilson v. Atlanta, 60 id. 473; Augusta
v. Hudson, 94 id. 135, disapproving of Brown v. Laurens Co., 38 S. C.
282, cited in § 65, infra.

* Manderschid v. Dubuque, 25 Ia. 108, expressly disapproving of Davis
v. Dudley, 4 Allen (Mass.) 557, cited in § 62, supra.

® Moss v. Burlington, 60 Ia. 438.

* Byerly v. Anamosa, 79 Ia. 204.

‘4 Miller v. Boone Co., 95 Ia. 5, distinguishing McClain v. Garden Grove,
83 id. 235, where the horse’s falling against a rail which gave way was
caused by disease or his being improperly harnessed. And see Gould v.
Schermer, 1o1 id. 582; Faulk v. Iowa County, 103 id. 442.

79 Ind. 308.

208 INJURIES TO ANIMALS ON HIGHWAYS.

ing the rule in the above cases, that where the driver exercises
due care he may recover for an injury received by his fright-
ened horse through a defect in the highway. The rule in
Massachusetts and Maine was said to “rest upon peculiar stat-
utory provisions,” which proposition, however, it would be
difficult to support.

So, one injured by her horse being frightened by a hog
under a bridge and backing off where there was no railing
is not deprived of her right to recover by the fact that she had
opportunity for knowing what the condition of the bridge
was and might have avoided it by going out of her way. “As
neither party was to blame for the fright of the horse, and as
the appellant was alone to blame for the defect in the bridge,
it is quite evident that the appellant cannot escape responsi-
bility.” *§ And in a similar case it was said: “It is not un-
usual nor unnatural for horses upon bridges to shy or start.
. .. It cannot be overlooked in considering whether in a
given case the bridge should be supplied with a railing.” *”
Where the plaintiff had safely crossed a bridge and the horse,
becoming frightened, backed the buggy on it again and over
the side where there was no railing, the county was held lia-
able®® The general rule as to the liability of municipalities
for injuries resulting from fright and a defect in the road was
re-asserted in the late case of Fowler v. Linquist.5®

In Illinois, where the injury was caused by the horses run-
ning away and the wheel of the wagon going into a hole, the
city was held liable, and it was also said that if a sidewalk is
used both by vehicles and foot-passengers, the municipality
must keep it safe for both classes of travellers.2° But a vil-
lage is not liable where a runaway team strikes a stone placed

* Boone Co. Commrs. v. Mutchler, 137 Ind. ro.

* Sullivan Co. 7. Sisson, 2 Ind. App. 311.

“Parke Co. Commrs. v. Sappenfield, 6 Ind. App. 577. And see Eads
v. Marshall (Tex. Civ. App.), 29 S. W. Rep. 170, cited infra.

138 Ind. 566. And see Mount Vernon v. Hoehn (Ind. App.), 53 N. E.
Rep. 654.

® Lacon v. Page, 48 Ill. 490.

RULE THAT MUNICIPALITY IS LIABLE, 209

at a street corner to protect a sidewalk, where the stone does
not interfere with reasonable travel on the street.*4 In Joliet
v. Shufeldt ®* the rule in Massachusetts, Maine and Wiscon-
sin was expressly dissented from, and it was held that the city
is liable though the accident would not have happened if the
harness had not broken and the horse run away. But where
a runaway team frightened a horse hitched to a post set up
by the city and the horse broke the post and ran against and
injured a person in the street, the injury was held too remote
to render the city liable. “If there may be supposed to be
any duty resting upon the city in regard to the sufficiency of
the posts, as arising from having undertaken to set them,
there could be no such duty to see that absolutely safe posts
were set.” 6

In Kansas the general rule adopted in the above cases was
followed and a city was held liable for an injury to a horse
running away without the driver’s fault.*

In Kentucky the exact point does not appear to have
arisen. Where a road ran along a steep embankment and
the plaintiff’s horse shied and fell down the bank, which was
unfenced, the turnpike company was held liable, whether or
not the plaintiff knew of the condition of the road.

In Maryland the plaintiff’s recovery is not affected by the
fact that his horses were frightened or running away at the
time. “To make a road safe, the track must be wide enough
to allow for the possible shying and starting of teams, with-
out danger to those travelling with them of being thrown over
embankments or against obstacles in or along the road.” ®

* Bureau Junction v. Long, 56 Ill. App. 458.

? 144 Ill. 403, affirming 42 Ill. App. 208. “ Rockford v. Tripp, 83 Ill. 247.

* Union St. R. Co. v. Stone, 54 Kan. 83. And see Topeka v. Hemp-
stead, 58 id. 328.

“© Southworth v. Owenton & S. G. Turnp. Co., 91 Ky. 485. And see
Henderson & C. Gravel-Road Co. v. Cosby (Ky.), 44 S. W. Rep. 639;
Canton, C. & H. Turnp. Co. v. McIntire (Ky.), 48 id. 980.

* Balt. & H. Turnp. Co. v. Bateman, 68 Md. 389. And see Kennedy
v. Cecil Co. Commrs., 69 id. 65.

14

210 INJURIES TO ANIMALS ON HIGHWAYS.

In Michigan, where a horse shied at an object by the road
and the wagon struck a log, but there was no evidence that
the horse was running away or uncontrolled, the court below
charged that if the cause of the injury was not the want of re-
pair in the highway but the fright of the horse, the plaintiff
could not recover. This was held to be too favorable to the
defendant, as it could not be said as matter of law that the
mere shying of the horse and not the obstruction in the high-
way was the proximate cause of the injury.°” But where a
horse hitched in front of a shop was frightened by the fall of
a window-sash and ran down the street and was injured by a
pile of iron rails against the curb, the street being one hun-
dred feet wide, it was held that the fright of the horse and
not the piling of the rails was the proximate cause of the in-
jury.®® In a later case the rule is said to be that “if there be
no fault on the part of the plaintiff, and the loss be the com-
bined result of accident and the insufficiency of the road, the
plaintiff may recover.” °

Where the backing of a horse off a bridge was not caused
by the defective condition of the bridge, it was held imma-
terial whether the railing of the bridge was sufficiently strong
or not.”°

In Minnesota, where a horse frightened by a street car ran
away and the driver was injured by collision with a dangerous

” Langworthy v. Green Tp., 95 Mich. 93. And see Gage v. Pontiac,
O. & N. R. Co., 105 id. 335, where the company was held liable though
the horse’s shying contributed to the accident.

“ Bleil v. Detroit St. R. Co., 98 Mich. 228, approving of some of the
cases cited in § 62, supra. And see Lambeck v. Grand Rapids & I. R.
Co., 106 id. 512; Murphy v. Mich. Cent. R. Co., 107 id. 627; Doak v.
Saginaw Tp. (Mich.), 78 N. W. Rep. 883.

® Shaw v. Saline Tp., 113 Mich. 342, following Gage v. Pontiac, O. &
N. R. Co., supra.

® St. Clair Mineral Springs Co. v. St. Clair, 96 Mich. 463. And see
Kingsley v. Bloomingdale Tp., 109 id. 340; White v. Riley, 113 id. 295;
Bratfisch v. Mason Tp. (Mich.), 79 N. W. Rep. 576.

The approach to a bridge constitutes a part of such bridge: Shaw v.
Saline Tp., supra.

RULE THAT MUNICIPALITY IS LIABLE. 211

obstruction in the street, it was held that the obstruction was
the proximate cause of the injury, the court saying: “Where
several concurring acts or conditions of things—one of them
the wrongful act or omission of the defendant—produce the
injury, and it would not have been produced but for such
wrongful act or omission, such act or omission is the prox-
imate cause of the injury, if the injury be one which might
reasonably be anticipated as a natural consequence of the act
or omission.” 7}

In Missouri the rule in New Hampshire is followed and the
municipality is liable for an injury produced by a defect in
the highway and some accidental cause."* This was held to
be the case where one, to avoid the kick of a mule, fell into
an excavation and was injured.7? But where a road was wide
and good enough for persons in the exercise of ordinary care,
it was held that the fact of a gully into which a runaway team
falls being outside of the travelled part, would not make
the city liable. “It would certainly be a most unreasonable
demand to require the corporate authorities of a city not only
to provide safe and commodious streets for all ordinary pur-
poses of travel, but to provide thoroughfares of such ample
dimensions and such matchless grade that accidents, even
from runaway teams, would be absolute impossibilities.” ™*

In North Carolina, where a frightened horse ran into an
obstruction and the plaintiff was injured, it was held that the
obstruction and not the running of the horse was the prox-
imate cause of the injury.”®

In Texas a plaintiff may recover where his horse, acciden-
tally frightened, backs off a bridge insufficiently fenced,’®

™ Campbell wv. Stillwater, 32 Minn. 308.

* Hull v. Kansas City, 54 Mo. 598; Vogelgesang v. St. Louis, 139 id.
127—where the fright was momentary.

* Bassett v. St. Joseph, 53 Mo. 290.

* Brown v. Glasgow, 57 Mo. 156, approving of Titus v. Northbridge,
97 Mass. 258, cited in § 62, supra.

* Dillon v. Raleigh (N. C.), 32 S. E. Rep. 548.

*® Baldridge & C. Bridge Co. v. Cartrett, 75 Tex. 628.

212 INJURIES TO ANIMALS ON HIGHWAYS.

even though it had crossed in safety before becoming fright-
ened.77

In Washington, where a horse was frightened at bicycles
and backed off of a planking in a street where there was no
guard-rail, the city was held liable on the ground that “streets
must be so constructed that the ordinary horse with the or-
dinary disposition, allowing for the ordinary incidents of
caprice or fright, can be driven with reasonable safety on
them.” 8 But where a bridge was in a reasonably safe con-
dition, the fact that a runaway team of horses dashed over the
side at a point where there was no guard rail was held not to
render the city liable.79

In Upper Canada, where a horse shied at new planks in a
bridge and backed to the end of it and the hind wheels of the
buggy went over an unfenced bank, resulting in injury to the
plaintiff’s wife, it was held that the want of a fence was the
proximate cause of the injury and that the township was lia-
ble.8° And where the plaintiff with a wagon and a load of
bricks was coming down hill and his horses ran away and
went down a precipice through an opening in a fence, it was
held that the mere fact of their running away and becoming
unmanageable would not prevent the plaintiff’s recovering if
he had not been guilty of a want of reasonable care or skill.
The rule in New Hampshire was adopted as against that es-
tablished in Maine and Massachusetts.*! In a later case it
was held that, where runaway horses caused an injury by run-
ning into a large stump in the highway, the municipality was
not liable, as the road, notwithstanding the stump, was in a
reasonable state of repair. “Repair,” in the statute, was

“Eads v. Marshall (Tex. Civ. App.), 290 S. W. Rep. 170. And see
Parke Co. Commrs. v. Sappenfield, 6 Ind. App. 577, cited supra.

* White v. Ballard, 19 Wash. 284.

® Teater v. Seattle, 10 Wash. 327. The court said: “The city is not an
insurer of the safety of its streets, but is only required to keep them in a
safe condition for ordinary travel.”

©” Toms v. Whitby, 35 U. C. Q. B. 195; 37 id. too.

“ Sherwood v. Hamilton, 37 U. C. Q. B. gto.

RULE THAT MUNICIPALITY IS LIABLE. 218

said to be a relative term, and it was held that the road need
not be kept so as to guard against injuries by runaway horses:
it was sufficient if it were kept in a reasonable state of repair
for ordinary travel. The court intimated that if it had not
been for the case of Sherwood v. Hamilton, cited supra, it
would have held the running away to have been the proximate
cause of the injury, even if the road had not been in a reason-
able state of repair.6? The Court of Appeal, however, re-
versed this decision and held that a highway in which such
a stump stood was out of repair and that, where horses were
running away with no fault of the driver, he was entitled to
recover damages under such circumstances, nor would the
contributory negligence of the driver be an answer in an
action brought for injuries to the occupant of a carriage who
had in good faith entrusted himself to the driver’s care.84 A
telephone pole in the highway has also been held to be an
obstruction and, where runaway horses came into contact
with it, the city was held liable.8*

In a Federal case, also, it was held that where a municipality
permits the erection of a telephone pole which is a dangerous
obstruction in the highway, it, as well as the telephone com-
pany, is liable for an injury to one driving a gentle horse
which had become unmanageable from fright, but that the
company was not liable if a third person unhitched the horse,
which ran away and struck the pole.8° And a street railway
company leaving snow in the street in masses, is responsible
for resulting injuries to a traveller whose horse became fright-
ened owing to some other cause.®*

And see Price v. Cataraqui Bridge Co., 35 id. 314, where a bridge com-
pany was held not liable as the action should have been brought against
lessees covenanting to work the drawbridge.

*” Foley v. East Flamborough Tp., 29 Ont. 139.

*® Same v. Same, 35 Can. L. Jour. 167.

* Atkinson v. Chatham, 29 Ont. 518.

* Wolfe v. Erie Teleg. & Teleph. Co., 33 Fed. Rep. 320. And see
Lundeen v. Livingston Elec. Light Co., 17 Mont. 32.

* McDonald v. Toledo Consol. St. R. Co., 74 Fed. Rep. 104.

214 INJURIES TO ANIMALS ON HIGHWAYS.

The rule considered in the present section would, therefore,
appear to have the weight of authority on its side. Asa mat-
ter of public policy, moreover, it is to the advantage of the
community that municipalities should be compelled to pro-
vide good and safe roads and bridges rather than escape from
such liability for a reason connected with the well-known
habits of animals that ought to be taken into account in con-
structing and repairing highways over which they are to
travel. Asa question of the law of Negligence, too, it seems
reasonable, as was said in Boone Co. Commrs. v. Mutchler,*?
that as in these cases neither party is to blame for the animal’s
fright and the municipality is alone to blame for the defect,
the latter should not escape responsibility for the resulting
injury.

65. Where Fright is Caused by the Defect—Whatever doubt
there may be as to municipal liability in cases where the fright
is purely accidental, there would naturally seem to be none
where the fright itself is produced by the defect in the high-
way. Nevertheless, even here, there is not entire unanimity
of opinion.

In Massachusetts, for example, the rule appears to be that
the town is no case liable for the consequences of the fright of
animals caused by a defect in the highway unless the animal
comes into actual contact with the defect, and then only for
an injury immediately resulting, without any escape from the
driver’s control.8§

In Marble v. Worcester,®® by reason of a defect in the high-
way, a sleigh was turned over, the driver thrown out, the
horse became frightened, broke away from the driver’s con-
trol, ran through an adjacent street for a distance of fifty rods
and there struck and injured a person travelling on the high-
way and using all due care. It was held that the city was

"137 Ind. 140, cited supra. * See 15 L. R. A. 368 n.
*° 4 Gray (Mass.) 305.

WHERE FRIGHT IS CAUSED BY. THE DEFECT. 215

not responsible for the injury because the defect in the way
was its remote, not its proximate, cause.

In Keith v. Easton®® a large vehicle used as a daguerreau
saloon, standing partly within the limits of the highway but
several feet from the travelled path, was held not to be a de-
fect by reason of which a traveller could recover damages for
an injury resulting from his horse’s fright. The court said:
“In no case has it been held that an object existing within
the limits of a highway, but leaving the travelled part unob-
structed, so that the traveller is safe from all collision with it,
is a defect in the way merely because it exposes the traveller’s
horse to become frightened by the sight of it, either at rest
or in motion, or by sounds or smells that may issue from it.
. . . The discussion of the present case suggested many other
illustrations. Cattle or horses running at large might
frighten the traveller's horse; the sight of flags displayed, or
a window curtain fluttering in the wind over the street
through a raised window; the goods displayed in front of
shops; the numberless operations of business and amusement
constantly carried on in our cities and villages within the
limits of the highway; the gatherings at agricultural fairs,
military trainings and other public occasions, may any or all
of them tend to frighten many passing horses; yet it would
be a novel doctrine to hold that highway surveyors may inter-
fere in such cases under their authority to repair highways,
or that the attributes of a way include them because they may
frighten horses.”

Nor does the fact that the object causing the fright is in
the travelled path make the town liable, as, for example,
gravel left in a road;*! or a dead horse;®? or a bright stone

2 Allen (Mass.) 552. Judge Redfield says of this case in 8 Am. L.
Reg. N. S. 81 n.: “‘The decision may be sound but we should have deemed
it a case of such doubt as to be submitted to a jury, as was done in the
principal case [Morse v. Richmond, 41 Vt. 435, cited infra].”

™ Kingsbury v. Dedham, 13 Allen (Mass.) 187.

® Cook v. Charlestown , 13 Allen (Mass.) 190 n.

216 INJURIES TO ANIMALS ON HIGHWAYS.

with which the horse does not come into contact ;®? or a stone
against which the wheel scrapes, making a noise.** “It is
well settled in this Commonwealth that cities and towns are
not liable for injuries caused by the fright of horses from ob-
jects in the highway, even if the object is one that would be
ever so likely to frighten horses. Can it make any difference
whether the fright is from sight or sound? In general and
on principle, we think the answer should unhesitatingly be,
No.” The question as to whether the scraping was the prox-
imate cause of the injury was, however, held to be for the
jury.°*

Nor is the fact that the horse would have come into con-
tact with the object if he had not been frightened, a material
one. Ona second hearing of Cook v. Charlestown, supra,
it was said: “The bill of exceptions now presented contains
but one statement of fact which distinguishes the case from
that which was before us upon the exceptions taken at the
previous trial. . . . That fact is that when the plaintiff’s horse
was frightened at the dead horse in the street and ran away,
he was going directly upon it, was within a few feet of it and
would have gone upon it if he had not sprung to one side.
This does not, in our opinion, change the aspect of the case
materially. . . . Nor can it make any difference that the ob-
ject which frightened the horse is one which would have been
an obstruction and defect in the way if he had come in con-
tact with it. It is not its quality as an obstruction which
causes the injury complained of, but its quality as an object
of terror to the horse. There is nothing to show that the
horse was more frightened than he would have been if it had
lain close beside his path, instead of directly in it.” 9°

Where a gentle horse is obliged to step aside by reason of
an object in the highway, the town is liable for the resulting
injury—not where he shies as the consequence of a vicious

* Cook v. Montague, 115 Mass. 571.
“ Bowes v. Boston, 155 Mass: 344. * Tbid.
°° 98 Mass. 8&0.

WHERE FRIGHT IS CAUSED BY THE DEFECT. 217

habit.°* And where a trough causes a horse to shy and drive
a carriage into a defect in the highway, without the driver’s
fault, the town may be liable. “The jury would be justified
in finding that the plaintiff's loss of the control of his horse
was momentary or partial.” °> But where a horse, frightened
by an object in the highway, sprang aside and was injured
by collision with a carriage driven on the proper side, the
town was held not liable, although beyond that carriage was
a ridge which was a defect in the highway and prevented the
carriage from being driven further off—the court saying that
as the carriage “could have been driven rightfully where it
was driven, it may also be that if the road had been in no de-
gree narrowed by the ridge, the accident would still have oc-
curred.”®? Where a horse was frightened by a defect in a
highway and the driver turned him towards a bank and he
ran into a post outside of the highway and the plaintiff was
injured, it was held correct to charge that, if the horse’s vice
caused his running away, the plaintiff could not recover,
though the vice was unknown to him and he used reason-
able care.

In Michigan, where a horse was frightened at a stone dug
out of the roadbed and lying outside of the travelled portion
of the highway and upset the buggy, the stone having been
left till it could be removed by one who had asked for and ob-
tained it for building purposes, it was held that the town was
not liable, as the statutory provision applied only where the
want of repair of the highway was the immediate cause of the
injury and did not prohibit allowing things which form no
part of it to stand in it temporarily. “But if it is admitted,
and the court below allowed the jury so to assume, that a city
is liable for leaving or allowing in its streets that which is dan-
gerous by reason of its tendency to frighten passing teams,

* Stone v. Hubbardston, 100 Mass. 49.
* Cushing v. Bedford, 125 Mass. 526.
*® Bemis v. Arlington, 114 Mass. 507.
® Brooks v. Acton, 117 Mass. 204.

218 INJURIES TO ANIMALS ON HIGHWAYS.

the question arises how far this record presents such a case.
It will not do to apply any far-fetched and unreasonable rule
in such cases. ... It is customary in all towns to allow
ditches to be dug and building materials of all kinds and
colors to be piled up and kept for considerable periods in the
body of the street. . . . The use of streets for such purposes
is too common to justify the owners of horses to assume it
will not be allowed, and they should be prepared to guard
against their animals’ freaks and fears of such ordinary ap-
pearances.”’ 1°

Where a horse took fright at a log at the side of a narrow
road and, when struck with a whip, jumped down a bank, it
was held that the proximate cause of the injury was not the
narrowness of the way and that the township was not liable.
But it is otherwise where the object at which the horse takes
fright is a defect in the travelled part of the road.

Where a bridge was without railings so that the horses
could see the water and one of them became frightened and
backed off, the court below directed a verdict for the defend-
ant on the ground that the want of barriers was not the prox-
imate cause of the loss. This was held to be erroneous, as
the question of proximate cause was for the jury. The ques-
tion of the city’s negligence depended on whether it was
reasonable to suppose horses of ordinary gentleness would
take fright and back and whether ordinary care would have
dictated placing barriers in consequence."

In Maine, it was held in an early case that where a horse
was frightened by the appearance of an ordinary repair of the
highway, the town was not liable. “It is not to be expected

Agnew v. Corunna, 55 Mich. 428.

Beall v. Athens Tp., 81 Mich. 536. So, a city is not liable for in-
juries resulting from the fright of a horse at a trench being excavated
for the purpose of laying water-pipes; it is not bound, where sufficient
room to pass is left, to close the street or erect barriers along the trench
during the daytime: O’Rourke v. Monroe, 98 id. 520.

*® Simons v. Casco Tp., 105 Mich. 588.

* Ross v. Ionia Tp., 104 Mich. 320.

WHERE FRIGHT IS CAUSED BY THE DEFECT. 219

that the aspect of the road would not undergo a change by
filling a hole and rendering the place where it was, safe as a
carriage road, so as to occasion no danger. It would prob-
ably be impossible to find materials and so place them that
the spot should appear precisely as it did before the defect
existed, but if repaired in the usual manner, so that the ap-
pearance was not unlike roads when similar injuries were re-
paired, the town could not be liable therefor on an indictment
and consequently not to an individual for an injury re-
ceived,” 19

So, where a horse was frightened at blocks of granite on a
road, procured for the purpose of repairing and left there but
a few hours, the town was held not liable.1°* And mere
knowledge that there is an obstruction, such as a boiler, in
a road will not make the inhabitants of a town liable: they
must know that it is unnecessarily and illegally there. Ifa
defect in a highway causes such a breaking of a safe vehicle
that a well-broken horse is naturally frightened beyond the
control of a reasonably careful driver and the horse falls while
running down a steep hill and the plaintiff is thrown out and
injured, the jury may find the defect to be the sole cause of
the accident. The horse’s fall “cannot be reckoned as a con-
tributory cause. It is as much a natural and direct conse-
quence as the fall of the plaintiff herself from the wagon. It
is part of the accident caused by the defect.” 1° And where
a wagon was loosely loaded with barrels and passed over
boards negligently laid in the street, thereby frightening the
horse, it was held that the accident to the driver was a result
to be reasonably expected from the misconduct of the person ,
putting the boards in the way.1°

But, as opposed to the Massachusetts rule, where the object
of fright is situated within and is per se a defect upon the trav-

*% Merrill v. Hampden, 26 Me. 234. *” Farrell v. Oldtown, 69 Me. 72.
™ Bartlett v. Kittery, 68 Me. 358.

8 Willey v. Belfast, 61 Me. 569. And see Clark v. Lebanon, 63 id. 393.
2 Lake v. Milliken, 62 Me. 240.

220 INJURIES TO ANIMALS ON HIGHWAYS.

elled portion of the highway, the traveller may recover with-
out having come into contact with it. If the plaintiff were
dismounting to prevent upsetting while the horse was rest-
less from fright, the defect in the way would be the proximate
cause of her injury, but if the horse was manageable and the
plaintiff was dismounting to lead him by the defect, when he
started up and threw her down, the defect would not be such
proximate cause.1!° But a tree on a wagon left standing ina
road temporarily is not an “obstruction left” on the highway,
at which if a horse is frightened the town is rendered liable.“™

In Pennsylvania, where damages resulted from a horse
being frightened at a stone along the highway, it was held
that whether this would frighten an ordinarily quiet horse was
a question for the jury, and that the plaintiffs need not show
affirmatively that their negligence did not contribute to the
injury, as this was a matter of defence.14* But where horses
struck an ash-heap on a road, were frightened, ran away and
were killed by a train, the negligence in leaving the ash-heap
in the road was held to be the remote, not the proximate,
cause of the injury.1!8

Where the plaintiff’s horse was frightened at a pile of lum-
ber at the side of the road, the township having notice there-
of, it was held that he could recover against the latter, though
he might have sued the person who deposited the lumber.
“The fright of a horse may, perhaps, as often be attributable
to the place in which an object is unexpectedly found as to
the frightful appearance of the object itself; still there are ob-

"° Card v. Ellsworth, 65 Me. 547. And see the comments on this case
in Nichols v. Athens, 66 id. 402, where it is said: “Whether a recovery
can be had where the fright is caused by an object outside of the travelled
road, but within its located limits and, if so, to what extent and under
what limitations and conditions, we are disposed to regard as questions
not yet judicially decided in this State.”

™ Davis v. Bangor, 42 Me. 522.

™ Mallory uv. Griffey, 85 Pa. St. 275. And see Potter v. Natural Gas
Co., 183 id. 575.

™8 West Mahanoy Tp. v. Watson, 116 Pa. St. 344.

WHERE FRIGHT IS CAUSED BY THE DEFECT. 221

jects which are well known to present such an appearance as
may be expected to, and naturally will, alarm ordinarily well
broken and roadworthy horses, and it is the duty of super-
visors of highways to remove all such impediments to safe
travel. It makes no difference that the lumber was not in
the travelled route; the fact that it was piled upon the margin
instead of the path of the highway, does not alter the rule of
liability, for the result produced in either event is that the
travelled route is thereby rendered unsafe. It is the duty of
road officers to forbid and prevent the use of the roadside as a
place of deposit for private property, particularly if it be of
a character to alarm or frighten ordinary horses.” It was
also held proper, as affecting the question of notice, to admit
evidence showing that lumber was often piled at that place,
as it was the duty of the township to know that fact and in-
terfere.144 Some other important Pennsylvania cases belong
more properly to the next section, where they will be con-
sidered.

In New York a city was held not liable for the shying of a
horse caused by a boulder of great size left in its natural place
with the road around it, as its removal would have been diffi-
cult and the town officers used their discretion in determining
to avoid rather than remove it. To make the town liable,
the character of the object should be such as to make the
frightening of horses an obvious result.7> But a turnpike
company was held liable for frightening horses by means of
a pile of stones placed by the travelled part of the road for
making repairs, when it has received reasonable notice and
has neglected to remove them.!1® And it is not essential that
they should be so placed as necessarily to frighten horses."**
Where the plaintiffs horses were frightened by the defend-
ant’s steam boilers which lay between the sidewalk and the

™ North Manheim Tp. v. Arnold, 119 Pa. St. 380.
™ Barrett v. Walworth, 64 Hun (N. Y.) 526.

26 Egeleston v. Columbia Turnp. Co., 82 N. Y. 278.
™ Wilson v. Spafford, 32 N. Y. St. Repr. 532.

222 INJURIES TO ANIMALS ON HIGHWAYS.

gutter, and the horses ran away and were killed, it was held
that one owning property next to the street has the right to
obstruct traffic temporarily in the street when it is necessary
to take articles from or to his place of business, but not to use
the street for the purpose of storing property to the damage
of others.48 A person, it has been held, even if he is the
owner of land over which a highway passes, commits a
nuisance, if he places in the highway an obstruction with
which horses or vehicles may come in contact or which is
calculated to frighten horses of ordinary gentleness, unless
the obstruction is reasonably necessary for the conduct of his
business and at the same time does not unreasonably interfere
with the right of the public to use the highway.1!®

In Connecticut, the Massachusetts rule as to the non-
liability of the town for the fright of horses is not followed,
and it is held that objects that would cause fright to horses
of ordinary gentleness are a defect for which the town is lia-
ble, if the plaintiff observes proper caution.12° The court
said in Ayer v. Norwich: “It is conceded that the object is
a nuisance. It must also be conceded that the nuisance in
both cases is the direct and immediate cause of the injury, and
that the injury is the natural and probable consequence of the
nuisance. If I strike a horse and cause him to run, whereby
persons in the carriage are injured, I am liable in trespass for
all the damage. If by my negligence I frighten him and
thereby cause injury, | am liable in case. Ifa town or other
corporation by its negligence produce the same result, why
should it not be liable? We must confess we are unable to
discover any good reason for holding towns liable for injuries
caused by collision and not liable for injuries caused by fright.

™ Stewart v. Porter Mfg. Co., 13 N. Y. St. Repr. 220. That the use
of a steam roller is not a technical “defect,” see Mullen v. Glens Falls,
11 N. Y. App. Div. 275.

™ Tinker v. N. Y., O. & W. R. Co., 157 N. Y. 312.

™ Dimock v. Suffield, 30 Conn. 129; Hewison v. New Haven, 34 id.
136, 142; Ayer v. Norwich, 39 id. 376. And see the note to Hewison v.
New Haven, 7 Am. L. Reg. N. S. 777.

WHERE FRIGHT IS CAUSED BY THE DEFECT. 223

The cause and effect in each case being the same, the manner
and detail are unimportant.”

In a Georgia case, where a horse was frightened by the
scraping of the wheels of the cart on street car tracks which,
contrary to ordinance, were several inches above the street
level, and the horse ran away and injured the plaintiff, it was
held that the proximate cause of the injury was the vice of the
horse—it being a high-blooded animal and having previously
tried to run away.1?1

In Illinois, it is the duty of the municipality to remove ob-
jects in the street calculated to frighten horses. Where a
horse died in the afternoon and, with the knowledge of a
policenian, the body lay in the street till the following after-
noon, when the plaintiff’s horse was frightened by it, the city
was held liable.1??

In Indiana the same rule prevails;}?3 and where a horse
was frightened by a hole in a turnpike, the company was held
liable, the court saying that the Massachusetts cases “are
based entirely upon statutes of that State, which are utterly
unlike any of our statutes.” 124 But where horses before en-
tering a bridge took fright at planks standing upright on the
bridge and threw the plaintiff out, the county was held not
liable, as it was responsible only for maintaining bridges so
that they might safely be travelled on, and was not required
to keep them so that horses might not be frightened at
them.175 And where the duty of repairing highways is im-
posed by statute on township trustees, the county is not re-
sponsible for their negligence in leaving lumber on highways
so as to frighten horses, as such persons are independent
public agents and are personally responsible.'*®

In Kansas, where the plaintiff’s horses which he was driv-

* Macon v. Dykes, 103 Ga. 847. ™ Chicago v. Hoy, 75 Ill. 530.
*8 Rushville v. Adams, 107 Ind. 475.

™ Brookville & C. Turnp. Co. v. Pumphrey, 59 Ind. 78.

* Fulton Co. Commrs. v. Rickel, 106 Ind. 501.

™ Abbett v. Johnson Co. Commrs., 114 Ind. 61.

224 INJURIES TO ANIMALS ON HIGHWAYS.

ing sank into a mudhole, became frightened and ran away
and were injured in another place before they could be
stopped, it was held that the damages were not too remote
to be recovered from the city.’*”

In Mississippi, a municipal corporation was held not liable |

for a horse’s fright at articles deposited in a street outside
of the travelled way within two hours of the accident, as that
was not a sufficient time for notice of the defect.1?*

In New Hampshire, an action may be brought for injuries
resulting from fright at objects in the road, such as stones,
where they are the direct and proximate cause of the acci-
dent ;!?® and also where the objects are out of the travelled
portion of the highway, unless the person placing them there
was at the time using the highway in a manner necessary and
proper under all the circumstances.18° Thus, a declaration
that the highway was obstructed by a pig-sty projecting into
it and occupied by five swine and that the plaintiff met with
an accident by her horses taking fright at their movement
and noises, was held good on demurrer, the court saying: “If
objects are suffered to remain (except for the merest tem-
porary purposes) resting upon one spot or confined within
any particular space within the highway, and are of such a
shape or character as to be manifestly likely to frighten horses
of ordinary gentleness, injuries caused by the fright thus oc-
casioned may properly be said to happen ‘by reason of the
obstructions’ or ‘insufficiency’ of the highway, unless the per-
son placing or continuing those objects upon the highway
was, in so doing, making such use of the highway as was,
under all the circumstances of the case, reasonable and

™ Topeka v. Tuttle, 5 Kan. 311, 425.

** Butler v. Oxford, 69 Miss. 618.

™ Littleton v. Richardson, 32 N. H. 50.

*° Winship v. Enfield, 42 N. H. 197; Chamberlain v. Enfield, 43 id. 356.

Where an engine, owned by a private corporation, was placed near, but
outside of the limits of, the highway and concealed from view, this was
held not to be a defect rendering the town liable for the fright of horses:
Hebbard v. Berlin (N. H.), 32 Atl. Rep. 220.

WHERE FRIGHT IS CAUSED BY THE DEFICT. 225

proper. . . . Objects calculated to frighten horses would
often be far more dangerous and much less easily guarded
against by the traveller than many obstructions with which
he comes in actual contact or collision; and when they have
been suffered to remain in the highway so long that the town
may fairly be said to have had notice of their existence there
and a reasonable opportunity to remove them, . . . there can
be no hardship to the town in holding it liable for damages
caused by horses taking fright at them.” 18! The court ex-
pressly disapproved of the Massachusetts cases of Kingsbury
v. Dedham and Cook v. Charlestown.13?

Where horses, frightened by the overturning of their load
caused by a defect in the highway, ran and collided with a
traveller, the town was, accordingly, held liable°? But
where horses took fright at the large number of sleds used by
boys in sliding for sport, it was held that a nuisance might be
committed which did not amount to an “obstruction,” that
this was not such an “obstruction” and, consequently, the city
was not liable.484 And where the horse’s fright was caused
by the act of a fireman in throwing a stream from a hose into
the street, in order to test the force and capacity of a hydrant,
the city was held not liable on the ground that this was not
a “defect in the street” and also because “‘a town is not liable
for damage done by the fire department.” **°

In Rhode Island, a town is liable where a horse is fright-
ened by an object allowed to remain in the highway, and it
is held that the town and the person leaving the object in
the road are not joint tort-feasors, the former being liable by
statute, the latter at common law.18® And where the dam-
age was caused by a stream of water, thrown from a city

Bartlett v. Hooksett, 48 N. H. 18. 2 Cited supra.

*8 Merrill v. Claremont, 58 N. H. 468.

**4 Ray v. Manchester, 46 N. H. 59.

8 Edgerly v. Concord, 59 N. H. 78, distinguishing Aldrich v. Tripp,
infra.

*6 Bennett v. Fifield, 13 R. I. 139.

15

226 INJURIES TO ANIMALS ON HIGHWAYS.

hydrant across a highway by employees of the water commis-
sioners, frightening a horse and causing its death, it was held
that the water commissioners and their employees were
servants of the city and that the latter was liable.1*” Where
A. was injured by a horse driven by B. being frightened by
the overturn of a sleigh on snow and ice wrongfully left in
the highway by C., it was held that C.’s act was the proximate
cause of the injury.7*8

In South Carolina, the liability of municipalities is con-
fined to injuries resulting from an actual defect. Accord-
ingly where a mule was frightened by a placard placed on a
bridge without the knowledge of the county commissioners,
who removed it as soon as they had notice, it was held that
the county was not liable, and doubted whether it would be
even with notice, as the statute gave an action only for in-
juries “through a defect in the repair.” 19° And where a
horse took fright at a piece of timber and backed the vehicle
off a bridge where there was no railing, it was held that the
absence of the railing was not a “defect in the repair” and was
not the proximate cause of the accident.1*® Nor is a city
liable for an injury caused by the fright of a horse at a booth
which it has permitted to be erected in the street on the
ground that it is a “defect’”’ caused by neglect or mismanage-
ment, the intent of the act being to make municipal corpora-
tions liable only for something connected with the keeping of
the streets, etc., in proper and safe repair.1"

In Texas, a city is negligent in allowing stones calculated

* Aldrich v. Tripp, 11 R. I. 141. In Edgerly v. Concord, supra, it is
said: “With these authorities Aldrich v. Tripp, ... is not in conflict.
The decision in that case was put on the ground that the injury com-
plained of resulted from the careless management of a hydrant by the
water commissioners, and not by the fire department.”

*8 Lee v. Union R. Co., 12 R. I. 383.

* Acker v. Anderson Co., 20 S. C. 495.

*° Brown wv. Laurens Co., 38 S. C. 282. This case was disapproved of in
Augusta v. Hudson, 94 Ga. 135, cited in § 64, supra.

“1 Dunn v. Barnwell, 43 S. C. 398.

WHERE FRIGHT IS CAUSED BY THE DEFECT. 227

to frighten horses of ordinary gentleness to remain by the
road for an unreasonable time.1#?

In Vermont, a town is responsible for leaving frightful ob-
jects on the margin of a highway, so that teams are terrified,
and the responsibility is greater with reference to the removal
of obstructions made by the unlawful deposit of private prop-
erty on the road than of those which exist naturally in the
soil or are cast on the margin while the road is being made
or repaired. The court dissent from the Massachusetts cases
and say: “It is beyond doubt that the placing of an obstruc-
tion upon a public way which, by its frightful appearance or
otherwise, would ‘hinder or impede passing,’ might subject
the party who made the obstruction to fine and damages, and,
if continued, might subject the town to indictment or to dam-
ages if the cause of an accident by collision. It is not easy
to see the ground upon which the town should be entirely
exempted from liability for the other and natural consquence
of the obstruction—an accident by fright.” 1#*

But where trustees having charge of streets purchased a
stone-crusher, which frightened a horse, they were held not
responsible for the resulting accident on the ground that a
municipal officer is not liable to a private individual for the
consequences of an act strictly within the official powers and
duties.1**

In Wisconsin, Morse v. Richmond, supra, was followed and
it was held that an object naturally calculated to frighten
horses of ordinary gentleness, though it may be so far re-
moved from the travelled path as to avoid all danger of col-
lision, is a defect for which the town is liable.14® And it is
the duty of the overseer to remove it at once, the intervention

1” Patterson v. Austin (Tex. Civ. App.), 39 S. W. Rep. 976, approving
of the decisions in Connecticut, Indiana and Vermont.

48 Morse v. Richmond, 41 Vt. 435. And see the note to this case in
8 Am. L. Reg. N. S. 81.

™ Bates v. Horner, 65 Vt. 471.

* Foshay v. Glen Haven, 25 Wis. 288.

228 INJURIES TO ANIMALS ON HIGHWAYS.

of Sunday not suspending such duty.’*® But the owner of
property adjoining the highway was held to have a right to
the temporary use of a reasonable portion of the street for
the deposit of material used in plastering his house, and the
village permitting this was held not liable for the fright of
horses caused thereby, though the material was of a character
to frighten horses of ordinary gentleness.*47

In Canada it has been held that, where the bad state of the
road is due to proprietors or lessees, the municipality is not
responsible for a resulting runaway.’*8 Otherwise, where the
excavation of a new tunnel was carelessly filled, whereby an
axle broke by reason of a flaw unknown to the plaintiff and
the horse ran away and was hurt.14° And where a runaway
was caused by a sleigh being caught in the defendant’s track,
elevated above the road-bed of the street, the defendant was
held liable.1°? Where the object causing fright was left
over night on the highway unguarded and unlighted and
some of the town councillors knew of the fact, it was held
that, under the circumstances, there was not sufficient notice
or a sufficient lapse of time to impose liability upon the cor-
poration.1®' And a municipal corporation is not responsible
for damages resulting from a horse taking fright at railway
ties piled, without the authority of the corporation, on the
untravelled portion of a highway: the person who piled the
ties is liable.15?

The weight of authority in these cases is, therefore, opposed
to the Massachusetts doctrine on the reasonable ground that

“ Bloor v. Delafield, 69 Wis. 273.

“ Loberg v. Amherst, 87 Wis. 634.

“8 O'Neil v. Quebec, 16 Low. Can. 4o4. Nor where it is due to a con-
tractor, though the municipality may have otherwise negligently allowed
the highway to get out of repair, unless the assent of the latter can be
shown: Howarth v. McGugan, 23 Ont. 306.

™ Archambault v. Montreal, 2 Leg. News (Can.) 41.

* Coristine v. Montreal City Pass. R. Co., 3 Leg. News (Can.) 220.

™ Rice v. Whitby 25 Ont. App. ror, reversing 28 Ont. 508. ‘

™ O'Neil v. Windham, 24 Ont. App. 341, following Maxwell v. Clarke,
4 id. 460. And see McDonald v. Dickenson, 24 id. 31. ‘

WHERE FRIGHT IS CAUSED BY THE DEFECT. 229

fright, if well founded, is as natural a consequence of an ob-
struction in a highway as a collision, and that, where the
objects are of a kind to cause fright, the persons placing
them on the highway or permitting them to remain there
should be held liable for the result of their actions.

66. Character of Objects Causing Fright.—It has been shown
that, where the fright results from actual contact with an ob-
struction or defect in the highway, the municipality is re-
sponsible for the consequences. We shall consider in the
present section what the objects are, the mere appearance
of which is deemed to warrant a recovery on the part of one
injured by the fright caused thereby to his animals.

The question here is not merely one of probable cause and
effect, but rather one of negligence under all the circum-
stances of the case. The principles that govern such cases
were admirably laid down by Cooley, Ch. J., in a Michigan
case. He says: “The bringing of an unsightly object into
the common highway is no more of a wrong because of its
tendency to frighten horses of ordinary gentleness, than is
the construction of a bridge over a river a wrong because of
its tendency to delay vessels. The one may be a wrong under
some circumstances and so may the other; but it is equally
true that both may be proper and lawful under other circum-
stances. It would be difficult to pass through the streets of
our large towns without encountering objects moving along
them which are well calculated to frighten horses of ordinary
gentleness until they become accustomed to them, but which
nevertheless are used and moved about for proper and lawful
purposes. The steam engine for protection against fire may
be mentioned as one of these; and though this is usually
owned and moved about by public authority, there can be no
doubt of the right of a private individual to keep and use one
for his own purposes, and to take it through the streets when
necessary. But other things which are sometimes moved
about on wheels along the streets are equally alarming to

230 INJURIES TO ANIMALS ON HIGHWAYS.

horses when first used. Wild animals collected and moved
about the country for exhibition are always more or less
likely to frighten domestic animals; but they may neverthe-
less be lawfully taken on the public highways under proper
precautions. . . . In some of the large cities of the country
sufficient means of transit by the old methods have become
practically out of the question and steam power is permitted
as a matter of necessity, not only as a means of moving
vehicles by the side of teams in the street, but also over their
heads, where the liability to cause fright would perhaps be
still greater. Horses of ordinary gentleness would at first
be liable to take fright but after a time they become accus-
tomed to the objects that at first are so fearful to them, just as
in the country they become accustomed to see trains of cars
passing near them along the ordinary railways which some-
times for a considerable distance run in immediate proximity
to the common roads. Horses may be, and often are, fright-
ened by locomotives in both town and country, but it would
be as reasonable to treat the horse as a public nuisance from
his tendency to shy and be frightened by unaccustomed ob-
jects as to regard the locomotive as a public nuisance from
its tendency to frighten the horse. The use of the one may
impose upon the manager of the other the obligation of ad-
ditional care and vigilance beyond what would otherwise be
essential, but only the paramount authority of the legislature
can give to either the owner of the horse or the owner of the
locomotive exclusive privileges. If one in making use of his
own means of locomotion is injured by the act or omission of
the other, the question is not one of superior privilege, but it
is a question whether, under all the circumstances, there is
negligence imputable to some one and, if so, who should be
accountable for it.’ 158

And in a Pennsylvania case it is said: “The frightening of a
horse is a thing that cannot be anticipated and is governed

"8 Macomber «'. Nichols, 34 Mich. 212, 218.

CHARACTER OF OBJECTS CAUSING FRIGHT. 231

by no known rules. In many instances a spirited road horse
will pass in safety an obstruction that a quiet farm horse will
scare at. A leaf, a piece of paper, a lady’s shawl fluttering
in the wind, a stone or a stump by the wayside will sometimes
alarm even a quiet horse. I may mention by way of illustra-
tion that the severest fright I ever knew a horse to feel was
caused by the sunlight shining in through the window of a
bridge upon the floor.” 154

So in a Connecticut case the court said: “There is a large
class of nuisances which may cause injury to persons in the
use of a highway for which towns are not liable; and we agree
that there are very many objects which may frighten horses
upon the highway, in relation to which no duty devolves upon
the town and therefore, in case of injury, no liability at-
taches. But the fact that a horse may be frightened at a piece
of paper or the rustling of leaves is no reason why the town
should not remove a dead horse or a frightful looking tent.
The character of the object, however, should be such as to
make the danger obvious and the duty of the town clear. In
respect to this no rule can be laid down which will indicate
clearly and definitely the line between immunity and liability.
It is and must be from the nature of the case, in the main, a
question of fact for the jury. We only determine that such
nuisances may be defects; whether they are so or not, the jury,
upon a consideration of the character of the object, its situa-
tion, the amount of travel, and all the circumstances, must
determine.” 155

It was accordingly held in Macomber v. Nichols, supra,
that where a horse was frightened by an engine on the street,
propelled by steam, it was error to permit the recovery to turn
on the fact whether it was calculated to frighten horses of
ordinary gentleness, the question, as has been said, being one
of negligence under all the circumstances. And this view

* Paxson, J., in Pittsb. South. R. Co. v. Taylor, 104 Pa. St. 306, 316.
*% Ayer v. Norwich. 39 Conn. 376. And see Laird v. Otsego, 90 Wis.
25; Smith vw. Sherwood Tp., 62 Mich. 159.

232 INJURIES TO ANIMALS ON HIGHWAYS.

with reference to the use of steam engines and implements is
sustained by other decisions.1°° On the other hand it has
been held that the owner of a traction engine which frightens
ordinary horses is liable, though all statutory requirements
have been complied with.157 And in an action against a city
for personal injuries caused by the fright of horses at a steam
motor used on a street railway by the permission of the city
council, it was held that, in the absence of express statutory
authority, the city had no power to permit such use and that
the grant constituted negligence.1°® But the owner of a trac-
tion engine in the hands of a bailee is not responsible for an
injury resulting from a horse being frightened by the en-
gine.159

Where a horse was frightened at a steam roller the city was
held liable, the court saying: ‘“‘The roller was taken through
the street at a time when it was being used by the public and
when its passage was necessarily attended with danger. The
circumstances required the exercise of a high degree of care
and the use of every possible precaution to avoid accident.” 1°
And such a roller left in the street during the suspension of
the work of macadamizing was held an object calculated to
frighten horses and a recovery was allowed against the city
on the ground of negligence.1®! But in another case it was
held that a steam roller properly used in repairing a street
was not such an obstruction or defect as would render the city
liable for frightening horses.*®

6 See Turner v. Buchanan, 82 Ind. 147; Sparr v. St. Louis, 4 Mo. App.
572; Ouverson v. Grafton, 5 N. D. 281.

*T Bantwick v. Rogers, 7 Times L. Rep. 542, where it is said: “The true
test of liability is whether the engine is calculated to frighten horses using
the road legitimately.’ And see Galer v. Rawson, 6 id. 17; Watkins v.
Reddin, 2 F. & F. 629.

*8 Stanley v. Davenport, 54 Ia. 463.

See State v. Kowolski, 96 id. 346, with regard to statutory regulations.

*® Smith v. Bailey, [1891] 2 Q. B. 403.

*™ Denver v. Peterson, 5 Colo. App. 41. And see Jeffery v. St. Pancras
Vestry, 63 L. J. Q. B. 618; Mullen v. Glens Falls, 11 N. Y. App. Div. 275.

™ Young v. New Haven, 39 Conn. 435. *” Lane v. Lewiston, 91 Me. 292.

CHARACTER OF OBJECTS CAUSING FRIGHT. 233

A pumping station maintained by a railroad company near
a highway was held not to be a nuisance, though the smoke
from the pumping engine sometimes settled down on the
road, frightening horses.1®

It was held in Connecticut that the owners of factories are
not entitled to use steam whistles so as to frighten gentle
horses and that it is not negligence for a driver to go on in the
course of his business, though he knows such a whistle is
likely to be blown ;1** and there is a similar decision in New
York.1® But in a well-considered Ontario case it was held
that the owners of lawfully operated water-works are not lia-
ble for damages from a horse being frightened by a steam
whistle used by them for their works near a highway, in the
absence of evidence of negligence in its use, or at least that
its use might be expected to cause such an accident, so ren-
dering it a nuisance to the highway.1®* And in a later Con-
necticut case, the facts were that the plaintiff's horse, fastened
by a rope in the street, was frightened by the defendant’s fac-
tory whistle, pulled at the rope, which gave way, and he was
killed. It was found that if the whistle, which was shrill and
calculated to frighten ordinary horses, had not been sounded,
the horse would not have pulled, and that if he had been free
from the habit of pulling, he would not have been killed.
The court held, upon this finding, that his death could not be
regarded as caused by the negligence of the defendants and
that they were not liable, saying: “The use of a steam whistle
is not per se a nuisance. . . . Obviously the plaintiff must
take the risk of all known faults in the horse.” *®*

In Massachusetts, a city was held not liable for injuries oc-
casioned to a person by his horse becoming frightened, while

"8 Pettit v. N. Y. Cent. & H. R. R. Co., 80 Hun (N. Y.) 86.

™ Knight v. Goodyear India Rubber, etc., Co., 38 Conn. 438.

3 Albee v. Chappaqua Shoe Manufg. Co., 62 Hun (N. Y.) 223.

*6 Roe v. Lucknow, 21 Ont. App. 1, reversing 29 Can. L. Jour. 217.

7 Parker v. Union Woolen Co., 42 Conn. 399. And see Grogan v. Big
Muddy Coal & Coke Co., 58 Ill. App. 154.

234 INJURIES TO ANIMALS ON HIGHWAYS.

being driven along the street, by the firing of a cannon in an
adjoining common under a license granted in pursuance of
a city ordinance. The decision was on the ground that the
city did not own the common and the person firing the can-
non was not its agent or servant and the firing was not its
act, but the court did not decide the question as to whether
a private landowner would be liable under such circum-
stances.1°8 And where blasting is done against a city’s orders
by those in charge of the work, the city is not liable for the
resulting fright of a horse.’®

One cannot be charged with negligence in shouting to a
driver that a team wants to pass him, and frightening horses
so as to cause a collision.1% And an averment that the de-
fendant by sliding boisterously in a street contrary to an or-
dinance had frightened plaintiffs’ horses and made them run
away and be injured, was held to state no cause of action, as
the violation of an ordinance does not necessarily show neg-
ligence.™1 But where the defendants ran a race and col-
lided, frightening the plaintiff’s horses and making them run
away, an action may be maintained. “Reckless and negli-
gent driving on the street and at a rate of speed calculated to
frighten horses of ordinary gentleness which are travelling on
the same, certainly gives a right of action to a party injured
thereby.” 172, So, where one wilfully turns a hose on horses
and they run away and collide with a wagon, he is liable for
the accident.” 178

The fact that a horse is frightened at a bicycle does not
render the owner of the latter liable for resulting injuries: the
driver of a horse has no rights superior to those of a bicyclist.
“Tt is not the duty of a party lawfully travelling upon a public
highway upon a bicycle, when he sees a horse and carriage
approaching, to stop and inquire whether the horse is likely

*® Lincoln v. Boston, 148 Mass. 578. * Joliet v. Seward, 86 Ill. 402.
*° Pigott v. Lilly, 55 Mich. 150. ™ Jackson v. Castle, 82 Me. 579.
™ Mittelstadt v. Morrison, 76 Wis. 265.

“8 Forney v. Geldmacher, 75 Mo. 113.

CHARACTER OF OBJECTS CAUSING FRIGHT. 235

to be frightened, especially in the absence of any apparent
reason for so doing.” 174

Where a water company created a nuisance in the highway
by leaving unfenced a stream of water which they had caused
to spout up, and the plaintiff’s horses were frightened and
fell into an unfenced excavation in the highway, made by con-
tractors who were building a sewer, and were injured, it was
held that the water company was liable, and not the contrac-
tors. “The proximate cause of the injury is the first neg-
ligent act which drove the carriage and horses into the ex-
cavation.” 17° And where through the defendant’s negli-
gence in having a projecting roof so constructed that snow
would, in the ordinary course of things, fall from it on the
highway, snow did so fall and strike the plaintiff’s horse,
frightening it and making it run away, the injury received by
the plaintiff on being thrown out was held to be a proximate
result of the negligence.'"®

The body of a common wagon left at the side of a road and
laid up edgewise against the bushes within the limits of a road
but outside of the travelled track does not render a town lia-
ble for the fright of a horse thereat. It is insufficient to
frighten an ordinarily gentle animal, and towns are not in-
surers.!77_ Buta land owner and a town which permitted him
to store his drays and wagons when not in use in a street were
held liable for injuries resulting from the fright of a horse at
a dray in the night-time, although the drays and wagons took
up only a part of the street.178 And where a vicious mare
was frightened by a van, unreasonably left on the side of a
highway, and ran away and kicked and injured her driver so

** Thompson v. Dodge, 58 Minn. 555.

*% Hill v. New River Co., 9 B. & S. 303.

6 Smethurst v. Proprs. Ind. Cong. Church, 148 Mass. 261. And see
Trestler v. Dawson, 3 Leg. News (Can.) 76; 5 id. 114.

17 Nichols v. Athens, 66 Me. 402. And see Rounds v. Stratford, 26
U. C. C. P. 11. For the requisites of a declaration in such a case, see
Rounds v. Stratford, 25 U. C. C. P. 123.

78 Tadoga v. Linn, 9 Ind. App. 15.

236 INJURIES TO ANIMALS ON HIGHWAYS.

that he died, it was held that his executors could recover
against the owner of the van. “The wrongdoer has no right
to lay down the measure of his own wrong or to limit the free
use of the highway to horses which shall only shy when fright-
ened and do no further mischief.” 77° Where one arranges
and decorates a wagon to advertise his business by covering
it with flags, and draws it through the streets of a city, he is
liable for the consequences of the fright of a horse of ordinary
gentleness.1®°

But a property owner on the highway is bound to take care
only that objects he has a right to expose are not of a kind
to frighten ordinarily gentle and well-trained horses: he is not
bound to guard against frightening skittish, vicious and easily
frightened animals. So, where a barrel full of whitewash on
wheels with a cloth and shovel sticking from it had been left
all day at the side of a highway, it was held that the jury
should have been instructed that, unless there was something
extraordinary in its appearance which would frighten gentle
horses, it was not negligence to use it and that its reasonable
use for the time required for whitewashing the defendant’s
fences would not subject him to liability for the fright it
caused horses.1®!_ And where a contractor for building a mac-
adamized road covered a steam roller with canvas and left
it over Sunday at the side of the road, he was held not liable
for frightening horses, as the plaintiff should have turned
back or got out and taken his horse by the head1®? But, in
Wisconsin, a city was held liable for the fright of a horse at
large wooden rollers left in the street by its agents.18* And

*® Harris v. Mobbs, 3 Ex. D. 268. Jones v. Snow, 56 Minn. 214.

Whether hanging coats on a street sprinkler tends to frighten horses,
is a question for the jury: McCann v. Consold. Trac. Co., 59 N. J. L. 481.

™ Piollet v. Simmers, 106 Pa. St. 95.

Keeley v. Shanley, 140 Pa. St. 213.

So, tiles placed on the side of a highway and partially concealed were
held not to constitute evidence of negligence: MacDonald v. Yarmouth
Tp., 29 Ont. 259.

* Hughes v. Fond du Lac, 73 Wis. 380.

But it was held not negligence to leave a top buggy, with the top half

CHARACTER OF OBJECTS CAUSING FRIGHT. 237

where the defendant farmed land at the side of the highway
and his servant removed a roller and set it on the margin of
the road and it frightened a pony driven by the plaintiff's wife,
thereby causing her death, a verdict that the accident was due
to unreasonable user of the highway by the defendant was
held warranted by the evidence.1** But a heap of manure
in a field near the road covered with a tarpaulin is not such
an object as makes the defendant liable; otherwise ‘‘country
life would be impossible.” 18°

A municipality has been held liable for a horse taking fright
at a banner suspended across the street ;1®° at a tripod in the
highway with a vessel containing syrup and a fire underneath
it to manufacture candy ;1®" at a scraper left by a workman
who had been digging a ditch ;188 and at the carcass of a dead
animal, where there has been negligence.18® So, where one
left a sick and disabled cow in the highway where it was rea-
sonable to suppose it would die and its body would frighten
horses, this was held sufficient to justify a verdict for the
plaintiff.19 But the owner of a dog who removes its carcass
to a safe place, is not liable for its removal to a highway by
boys, thereby causing injury to a frightened horse.1%

A city licensing the exhibition of wild animals in a partic-
ular place is liable for the fright of horses thereat ;!9? but

down and without the front wheels, twelve feet from the middle of a high-
way running through a wood, the buggy being a type in common use
in the locality: Kumba v. Gilham (Wis.), 79 N. W. Rep. 325.

™ Wilkins v. Day, 12 Q. B. D. 110.

Where a servant, in delivering bran for his master, left several bags
by the roadside in order to save unnecessary transportation and give him
time to attend to his private business, it was held that he was acting in his
master’s employment, and that the latter was liable for an injury caused by
the fright of a horse at the bags: Phelon v. Stiles, 43 Conn. 426.

* Gibson wv. Stewart, 21 Rettie (Sc. Ct. Sess.) 437.

*6 Champlin v. Penn Yan, 34 Hun (N. Y.) 33.

*" Rushville v. Adams, 107 Ind. 475.

*S Weatherford v. Lowery (Tex. Civ. App.), 47 S. W. Rep. 34.

*° Fritsch v. Allegheny, gt Pa. St. 226.

™ Hindman v. Timme, 8 Ind. App. 416.

™ Davis v. Williams, 4 Ind. App. 487. * Little v. Madison, 42 Wis. 643.

238 INJURIES TO ANIMALS ON HIGHWAYS.

where the licensee exhibits in a public street through the neg-
ligence of city officers, the city is not liable.1**

A city which has, for a compensation, granted the right to
erect a booth on one of its public squares for the use and ex-
hibition of an ox, is not liable for an injury occasioned by its
frightening a horse by emitting an offensive odor, while exer-
cising upon the highway outside of the booth.1°* And where
an injury happened to the plaintiff as a result of his horse’s
taking fright at an elephant passing in a highway in charge
of a keeper, it was held that to make the owners liable it would
have to be shown that this was the effect of an elephant’s ap-
pearance upon horses in general, and that the owners knew
that fact.1®° The owner of a turkey-cock which without neg-
ligence strays upon the highway, contrary to a by-law of the
municipality, is not liable for damages resulting from a horse’s
fright at the bird acting as turkey-cocks usually do.1%

Going through a militia drill in the public places of a city
has been held a malfeasance that will render the captain liable
for the running away and killing of a horse frightened
thereat.19*

A railway company maintaining a derrick which projected
over the highway, in order to load and unload freight in cars,
if it would naturally frighten passing animals, is liable for the
injuries sustained by a traveller driving his horse with due
care.198

Where a horse was frightened by the fluttering of a tidy
in a chair belonging to a gate-keeper near the gate of a bridge,

* Little v. Madison, 49 Wis. 605, explaining the above case on the
ground that there the city expressly authorized the show in that particular
spot, while here, no place being stated, the license was confined to ex-
hibiting in some suitable place.

™ Cole v. Newburyport, 129 Mass. 594.

* Scribner v. Kelley, 38 Barb. (N. Y.) 14.

™ Zumstein v. Shrumm, 22 Ont. App. 263.

™ Childress v. Yourie, Meigs (Tenn.) 561.

™ Jones v. Housatonic R. Co., 107 Mass. 261. And see Lawson v. Al-
liston, 19 Ont. 655.

CHARACTER OF OBJECTS CAUSING FRIGHT. 239

which bridge was in good condition, the bridge company was
held not liable in damages for the plaintiff’s being thrown out,
as the liability of the master does not reach wrongs caused by
the carelessness of the servant in work not directed by the
former.1®°

In an action to recover for injuries from a horse being
frightened at a sled and tubs left near the defendant’s build-
ings in the highway, it was held that the defendant might
prove that the highway was little used at that season, but not
that his neighbors were accustomed to leave their sleds so
while loading them.?°

With regard to the color of a vehicle in the highway, it was
said in an English case: “If a person places his carriage,
painted green, brown or any ordinary color, on a highway,
and a certain horse has an aversion to the particular color
the carriage is painted and takes fright, no action would lie
against the owner of that carriage, because he has violated
no law and is lawfully using the highway in an ordinary man-
ner ; but, on the other hand, if he has his carriage constructed
and painted in such a manner as to be very conspicuous in-
deed, it might then become a nuisance.” 2°! The question
whether fright at a street railway car painted a bright color
rendered the company liable was raised, but not settled, in
a New Jersey case.?0?

Evidence that other animals have been frightened by the
object in question is admissible.2°* So witnesses may testify

Wiltse v. State Road Bridge Co., 63 Mich. 639.

*° Judd v. Fargo, 107 Mass. 264.

” Jeffery v. St. Pancras Vestry, 63 L. J. Q. B. 618.

* McCann v. Consold. Trac. Co., 59 N. J. L. 481.

8 House v. Metcalf, 27 Conn. 631; Baker v. North East Borough, 151
Pa. St. 234; Potter v. Natural Gas Co., 183 id. 575; Smith v. Sherwood
Tp., 62 Mich. 159; Crocker v. McGregor, 76 Me. 282; Darling v. West-
moreland, 52 N. H. 4o1; Valley v. Concord & M. R. Co. (N. H.), 38 Atl.
Rep. 383; Wilson v. Spafford, 32 N. Y. St. Repr. 532; Stewart v. Porter
Mfg. Co., 13 id. 220; Champlin v. Penn Yan, 34 Hun (N. Y.) 33; Thomas
v. Springville City, 9 Utah 426; Brown v. Eastern & M. R. Co., 22 Q. B.
D. 391.

In Bemis v. Temple, 162 Mass. 342, this kind of evidence is distin-

240 INJURIES TO ANIMALS ON HIGHWAYS.

that obstructions are of such a character as would frighten

horses of ordinary gentleness.?*
The liability of railway companies for frightening animals

is discussed in § 133, infra.

67. Injury from Other Causes——A municipality is liable for
injuries to animals due to direct contact with some defect in
a highway or bridge. Thus where the course of a highway
was changed and a new bridge was built, the old road seem-
ing good, the permitting a barrier to decay so that one drove
his team into the remains of the old bridge, was held to make
the town liable.2°° So it is liable where its commissioner is
negligent and does not make a bridge safe for horses,?°?
And its negligence is the proximate cause of an injury to the
owner of a horse received while attempting to keep the horse
from injuring itself after catching its foot in a hole in a
bridge.?°’ It is liable for an injury received by an animal fall-
ing into a defective culvert.2°° So, where a horse hitched

guished from evidence that similar accidents had occurred in a place, the
latter being inadmissible.

In Elliott on Roads and Streets, 451, Bloor v. Delafield, 69 Wis. 273,
and Cleveland, C., C. & I. R. Co. v. Wynant, 114 Ind. 525, are cited as
opposed to the rule in the text, and it is said: ‘‘But the Wisconsin and
Indiana cases cannot be taken as expressive of a universal rule, for they
ought not to be regarded as going further than that there are some objects
which may be declared as matter of law not likely to frighten horses.”

See also § 133, infra.

** Moreland v. Mitchell Co., 40 Ia. 394, 401.

In Burns v. Farmington, 31 N. Y. App. Div. 364, it was held that the
question whether an irregular pile of wood by the road was an object
which a man of ordinary intelligence would judge likely to frighten horses,
was one for the jury and not for the opinion of witnesses.

* Schuenke v. Pine River, 84 Wis. 660.

And see as to highways discontinued without notice: Milwaukee v.
Davis, 6 id. 377; Bills v. Kaukauna, 94 id. 310.

*° Diamond v. East Hants, 20 Nov. Sco. 9.

And see Park v. Adams Co., 3 Ind. App. 536.

*“" La Duke v. Exeter Tp., 97 Mich. 450.

*S Hazard v. Council Bluffs, 87 Ia. 51; Bowser v. Toledo, 9 O. Circ. Ct.
2904; Lloyd v. New York City, 5 N. Y. 369; Brennan v, Friendship, 67
Wis. 223.

INJURY FROM OTHER CAUSES. 241

with ordinary diligence got loose and fell into a chasm in the
street and was killed.?°°

The rule as to excavations was thus stated in an English
case: “When an excavation is made adjoining to a public
way so that a person walking upon it might, by making a false
step or being affected with sudden giddiness or, in the case of
a horse or carriage way, might by the sudden starting of a
horse be thrown into the excavation, it is reasonable that the
person making the excavation should be liable for the conse-
quences; but when the excavation is made at some distance
from the way and the person falling into it would be a tres-
passer upon the defendant’s land before he reached it, the case
seems to us to be different. . . . We think that the proper
and true test of legal liability is, whether the excavation be
substantially adjoining the way.” 24°

The same rule applies to defects in general. Thus, towns
are not bound to erect barriers to prevent animals from stray-
ing where the dangerous place cannot be reached without
straying.241_ And they are not bound to keep the whole
highway free from obstructions. Thus, in Massachusetts,
where beyond the travelled part of the road were raised gut-
ters and beyond the gutters, nearly eight feet from the trav-
elled path, were large, loose stones which caused an injury
to the plaintiff’s horse, it was held that the town was not lia-
ble. “It cannot be expected that towns shall in all cases make
bridges the whole width of the road or fill up ravines or cut
down ledges of rock. But there may be such obstructions
out of the travelled path as will render the road unsafe, such,
for instance, as would frighten horses. It is, in some meas-

°° Tallahassee v. Fortune, 3 Fla. 19.

And see as to an unguarded fill in a turnpike, Lebanon & P. Turnp.
Road Co. v. Purdy (Ky.), 37 S. W. Rep. 588.

0 Hardcastle v. South Yorkshire R. Co., 4 H. & N. 67, 74.

That the town and a traction company may be jointly liable, see
Carstesen v. Stratford, 67 Conn. 430.

™ Puffer v. Orange, 122 Mass, 389.

16

242 INJURIES TO ANIMALS ON HIGHWAYS.

ure, a practical question, what obstructions a town is obliged

99 212

to remove.

Where a bridge was safe it was held that the company were
not liable for an injury to the plaintiff by the stepping of a
mule through a hole out of the usual route.?!* But where a
street was laid out for its whole width for travel, it was held
that where one was injured by his horse’s stepping on sticks
that were on a part of the street not usually travelled upon,
the fact that he did not see the sticks was not contributory
negligence.24# And where a horse going off a highway by
reason of a defect therein, fell upon a fence and was injured
while he was being removed with reasonable care, the town
was held liable.?1°

It was held in a Massachusetts case that where a traveller
upon a highway stopped and tied his horse outside of the
limits of the highway and the horse got loose and ran on the
highway and was injured, he could not maintain an action
against the town. “The injury to the plaintiff’s horse was
the result of causes which happened outside of the limits of
the highway, as well as of causes which happened within it.
Both contributed to the accident.” 716

The lessees of a ferry are liable for an injury sustained by
a horse from a defective rail, of which they knew, giving way,
although the horse was at the time under the control and
management of its owner.”47 And where railings of an in-

** Howard v. North Bridgewater, 16 Pick. (Mass.) 189. The dictum
as to obstructions that would frighten horses is commented on in Davis
v. Dudley, 4 Allen (Mass.) 557.

So in Michigan and Missouri only the portion of the highway in use
need be kept in repair: Whoram v. Argentine Tp., 112 Mich. 20; Hanni-
bal v. Campbell, 86 Fed. Rep. 297.

"* Patterson v. South. & North. Ala. R. Co., 89 Ala. 318.

™* Saylor v. Montesano, 11 Wash. 328. And see Boltz v. Sullivan
(Wis.), 77 N. W. Rep. 870.

“Tuttle v. Holyoke, 6 Gray (Mass.) 447.

™* Richards v. Enfield, 13 Gray (Mass.) 344.

™! Willoughby v. Horridge, 12 C. B. 742. And see Radway v. Briggs,
37 N. Y. 256.

INJURY FROM OTHER CAUSES. 243

sufficient height were erected around a statue near a market,
and the plaintiff's cow was killed while trying to jump them,
it was held that the owners of the market were bound to keep
the market-place free from danger to those frequenting it,
and that they had here been guilty of a misfeasance.?!8

Where an open and well-beaten path led from the travelled
part of the road to an apparently safe watering-place, which
was really a deep and miry pit filled with water, and the plain-
tiffs horse, having been turned in to drink, fell in and was
drowned, it was held that, as the indications of danger were
concealed, the town was liable. “Towns are not obliged to
provide watering places for the public convenience, but, when
they are provided by nature in the highway, they ought not
to be suffered to become pitfalls first to allure and then to de-
stroy horses or other animals turned aside to partake the re-
freshment to which they are thus invited.” 21°

Where a team became mired in a highway and, in the effort
to get out, one of the horses burst a blood-vessel and died
soon afterwards, the injury was held to be the direct and im-
mediate consequence of the defect in the road.22° But where
the miry condition of a road is due solely to the weather and
to the nature of the soil, the township is not liable therefor.?7+
Nor is it liable where its neglect is not the proximate cause
of the injury as where water rose over a highway and ice
formed, causing the slipping and drowning of a horse at a
point where there was a hole three and a half feet deep.???

Where horses are drowned crossing on a highway a stream
swollen by a flood, the test of the town’s liability is whether
the freshet was unusual and extraordinary, and not whether
it was unprecedented and not reasonably to be expected by

*8 Lax v. Darlington, 5 Ex. D. 28.

*® Cobb vw. Standish, 14 Me. 198. As to notice of injuries in Maine, see
Lord v. Saco, 87 id. 231.

*° Davis v. Longmeadow, 169 Mass. 55I.

* Brendlinger v. New Hanover Tp., 148 Pa. St. 93.

* Smith v. Walker Tp. (Mich.), 75 N. W. Rep. 141.

244 INJURIES TO ANIMALS ON HIGHWAYS.

the town.228 A navigation company is liable for a defect
in a towpath whereby horses fall into the water and are
drowned.?*4

A city is liable for an injury to a horse caused by glass neg-
ligently left in a street.2°° Anda street car company may be
enjoined from scattering salt on its lines, after removing
snow, to the injury of horses.?#8

Where the plaintiff drove a steam thresher over a bridge
and it broke down, injuring the horses and machinery, the
question whether such a use of a bridge was so unusal that
it was not to be anticipated, was held to be for the jury.??7
So, a town is liable for an injury to an elephant from a defect
in a highway if, in the opinion of the jury, an elephant at the
time and place and under the circumstances was an animal
which it was reasonably proper to take over a highway kept
for the reasonable use of the public.??8

Where the plaintiff’s horse is injured while standing in the
street by the carelessness of the defendant’s servant driving
into him, the defendant is liable for the damage.?2® And
where an ass fettered by the forefeet was placed on the high-
way and was unable to get away from the defendant’s wagon
which was negligently driven against him, killing him, it was
held that the owner could recover, unless the animal’s being
there was the immediate cause of the accident. “Although
there may have been negligence on the part of the plaintiff,
yet, unless he might, by the exercise of ordinary care, have

*8 Hopkins v. Rush River, 70 Wis. to.

™ Winch v. Thames Conservators, L. R. 9 C. P. 378.

* El Paso v. Dolan (Tex. Civ. App.), 25 S. W. Rep. 6609.

* Ogston v. Aberdeen District Tramways Co., 24 Rettie (Sc., H. L.
Cas.) 8.

™ Yordy v. Marshall Co., 80 Ia. 405. See Blakeley v. Baker, 39 L. T.
N. S. 359, where the facts were that a horse attached to a cart containing a
load weighing a.ton came against a fence surrounding an excavation and,
it giving way, the horse was killed. It was held that the builder of the
fence was not liable.

” Gregory v. Adams, 14 Gray (Mass.) 242, where the jury disagreed.

™ Streett v. Laumier, 34 Mo. 460.

INJURY FROM OTHER CAUSES. 245

avoided the consequences of the defendant’s negligence, he
is entitled to recover.” 3° But where the plaintiff’s horse
was killed by the shaft of the defendant’s carriage running
into him in the open day on the highway where there was
room to pass, it was held that an instruction that the plaintiff
was not held to the rule that he must establish a prima facie
cause of action by showing that the injury came from the de-
fendant’s negligence and that the defendant must disprove
care and establish negligence on the plaintiff’s part—was er-
roneous.?81 And where the plaintiff’s colt while straying on
the road was cut by the defendant’s reaping machine, the lat-
ter trying to keep it off, it was held that the plaintiff could not
recover.?22

The owner of a private road is not responsible for a horse
falling in an excavation, there being no duty cast upon him
to protect one using the road without a license.223 And
where the plaintiff's horse was injured by striking a project-
ing bolt while passing through an opening under the defend-
ant’s bridge which the former had used for some years, with-
out the defendant’s objection, for passing his stock through,
it was held that such a use was a mere license, and would not
entitle the plaintiff to recover for the injury.*** Where the
owners of land dedicated a foot-way which was dangerous to
horses and carriages, the city was held not liable for an injury
to horses and carriages driven thereon with ordinary care.?*%
A municipal corporation which has never, expressly or by im-

*° Davies v. Mann, 10 M. & W. 546. And see Gulliver v. Blauvelt, 14
N. Y. App. Div. 523.

*1 Waters v. Wing, 59 Pa. St. 211.

*® Carr v. Black, Mont. L. Rep., 3 S. C. 350.

*8 Murley v. Grove, 46 J. P. 360.

*4 Truax v. Chic., St. P., M. & O. R. Co., 83 Wis. 547.

° Hemphill v. Boston, 8 Cush. (Mass.) 195.

See Owen v. De Winton, 58 J. P. 833, where it was held that one who
widened a dangerous road alongside of a brook was not under the circum-
stances liable to one who fell off it with his team, the court saying: “If
they dedicated the road which was a dangerous road . . . the public must
leave it alone, not take to it, or, if they take to it, must take to it as it is.”

246 INJURIES TO ANIMALS ON HIGHWAYS.

plication, accepted the dedication of a street, is not liable for
injuries to animals by reason of a barbed wire fence on the
dedicated ground.?3°

Where a toll-gate keeper shoots the bar at an unusual hour
whereby the plaintiff’s horse is killed, the company is liable.”**
But where a servant washed a van in a public street and al-
lowed the waste water to run down and freeze as it could not
go through the grating, which was obstructed by ice, and
there was no evidence that the defendant, his master, knew of
the obstruction of the grating, it was held that the slipping
and breaking of the leg of a horse on the ice was a conse-
quence too remote to be attributed to a wrongful act of the
defendant. “Where there is no reason to expect it, and no
knowledge in the person doing the wrongful act that such
a state of things exists as to render the damage probable, if
injury does result to a third person, it is generally considered
that the wrongful act is not the proximate cause of the injury
so as to render the wrong-doer liable to an action.” 78°

Where a telegraph wire broke and fell upon a live trolley
wire from which electricity was transmitted through the
former wire to horses entangled in it, it was held in New York
that the electric railway company was not liable as the prox-
imate cause of the injury was the falling of the telegraph
wire.?°° But in similar cases in other States both companies
were held liable.?#°

68. Contributory Negligence—The question whether the
plaintiff has or has not been negligent is often an important

*° Cochran v. Shepherdsville (Ky.), 43 S. W. Rep. 250.

*7 Dudley v. Canal Bank, 5 La. Ann. 295.

*8 Sharp v. Powell, L. R. 7 C. P. 253.

* Albany v. Watervliet Turnp. & R. Co., 76 Hun (N. Y.) 136.

* United Elec. R. Co. v. Shelton, 89 Tenn. 423; McKay v. South. Bell
Teleph. & Teleg. Co., 111 Ala. 337.

And in Godfrey v. Streator R. Co., 56 Ill. App. 378, the street railway
company was held liable, as it knew or should have known of the situation
of the broken telephone wire in time to remove it and prevent accidents.

CONTRIBUTORY NEGLIGENCE. 247

consideration in these cases. In an Indiana case it was held
that where the plaintiff’s horses were frightened by a steam
engine placed in the street, from which he did not apprehend
any danger when he passed, he was not guilty of contributory
negligence, the court saying: “The law upon this subject is
well stated by Shearman and Redfield on Negligence. They
say, § 31: ‘Nor even where the plaintiff sees that the defend-
ant has been negligent, is he bound to anticipate all the perils
to which he may possibly be exposed by such negligence or to
refrain absolutely from pursuing his usual course on account
of risks to which he is probably exposed by the defendant’s
fault. Some risks are taken by the most prudent men; and
the plaintiff is not debarred from recovery for his injury, if
he has adopted the course which most prudent men would
take under similar circumstances.’ This doctrine has often
been applied and is peculiarly applicable to cases like this.
The obstruction is seen in the street; there is room to pass it;
it is not known that it will cause fright and the traveller, with
due care, knowing the temper of his horses and having con-
trol of them, believing there is no danger, attempts to pass.
In doing this he is not guilty of negligence; he takes the risk
which a prudent man would take, and nothing more. Such
an assumption of risk affords no excuse for the wrong-doer—
the party who wrongfully put the obstruction in the
street.” 241. Thus, where the plaintiff was injured by her
horse becoming frightened at a steam roller being moved in
the street, the horse being very gentle and used to street cars,
it was held that the fact that she did not keep a sufficient
lookout to have seen and avoided the roller, did not make her
guilty of contributory negligence.*4* Nor is the mere taking

2 Turner v. Buchanan, 82 Ind. 147. And see Ouverson v. Grafton, 5,
N. D. 281; Weatherford v. Lowery (Tex. Civ. App.), 47 S. W. Rep. 34.

*® Denver v. Peterson, 5 Colo. App. 41.

But see Lane v. Lewiston, gt Me. 292, where one driving up to a steam
roller was held guilty of contributory negligence, though not notified not
to use the street.

248 INJURIES TO ANIMALS ON HIGHWAYS.

of a young and timid horse on a ferry negligence.*** And
the right of one to recover for the negligent sounding of a
whistle causing his team to run away, is not affected by his
failure to warn the driver of the whistle, where there was no
stated time for sounding it and a warning would have been
useless.?##

But one cannot recover for an injury caused by his having
placed himself in a position which the frightening of a skittish
team would render perilous, where there is another and safer
road.24® And where the plaintiff’s coachman knew that a
pump-house, the noise of which frightened horses, had been
by a highway for years, but drove them by and they were
frightened, it was held that the plaintiff could not recover.***
Where a city alderman, knowing of a dangerous obstruction
in the street and expressly having called the attention of the
city council to the fact, drives by, notwithstanding, and his
horse is frightened and runs away, upsetting the occupants of
the carriage, he is guilty of such contributory negligence as
will prevent a recovery by one driving with him at his invita-
tion, though the other did not know of the obstruction.?**
An owner of a team frightened by negligent blasting is not
guilty of negligence in running in front of them and trying in
vain to stop them—being injured in consequence. The blast-
ing was the proximate cause of the injury. “A person in
charge of horses naturally and instinctively rushes to save
them or stop them when he sees them frightened and trying
to run away.” 748 On the other hand, the driver of a horse
not ordinarily frightened at bicycles, is not negligent, where
the horse is so frightened, in not alighting from the buggy

*8 Clark v. Union Ferry Co., 35 N. Y. 48s.

*“ Miller v. Rochester Vulc. Pav. Co., 21 N. Y. Suppt. 651.

*® Peoria v. Walker, 47 Ill. App. 182.

*° Ramsden v. Lancashire & Y. R. Co., 53 J. P. 183. And see Salem v.
Walker, 16 Ind. App. 687.

“T Whittaker v. Helena, 14 Mont. 124.

** Prescott v. Connell, 22 Can. Sup. Ct. 147, affirming 20 Ont. App. 49.

CONTRIBUTORY NEGLIGENCE. 249

and taking the horse by the head.?#9 Where a horse is fright-
ened by a defect in the road and runs, the driver is bound to
use ordinary care after as well as before—such care as a per-
son of ordinary prudence would use, making due allowance
for the alarm of the horse.?°°

Where one knowing the unsafe condition of a highway or
bridge sends his team over it, he cannot recover for an injury
to the team.7>4_ Thus, where horses fell into an excavation in
the street, which was plainly dangerous to drive in, and the
driver could have reached his destination by other streets
without much loss of time, the owner of the horses cannot
recover.?°* And where a horse loaned by the plaintiff to an-
other is killed by reason of the unsafe condition of the road,
evidence that the borrower knew of such condition and also of
a better road, should be received to show contributory neg-
ligence.?°* But it has been held that the fact that the plain-
tiff could have avoided passing an obstruction by travelling
another road going a mile and a half out of his way, is not to
be considered on the question of contributory negligence.?**
And where a cabman tried to lead his horse out of a stable
through a passage on which the commissioners of sewers had
heaped rubbish and the animal fell and was killed, it was held

*® White v. Ballard, 19 Wash. 284.

*° Brooks v. Petersham, 16 Gray (Mass.) 181.

*! Hill v. Tionesta Tp., 146 Pa. St. 11; Hotchkin v. Philipsburg (Pa.),
6 Cent. Rep. 898; Riest v. Goshen, 42 Ind. 339; Morrison v. Shelby Co.,
116 id. 431; Artman v. Kansas Cent. R. Co., 22 Kan. 296; Travis v. Car-
rollton, 7 N. Y. Suppt. 231; Shampay v. Chicago, 76 Ill. App. 429.

See Gulf, C. & S. F. R. Co. v. Gasscamp, 69 Tex. 545; Rosedale v. Gold-
ing, 55 Kan. 167.

As to urging on horses in a highway through water which is getting
deeper, see Smith v. Walker Tp. (Mich), 75 N. W. Rep. 141.

72 Cook v. Atlanta, 94 Ga. 613.

That this may not amount to contributory negligence as matter of law,
see Carstesen v. Stratford, 67 Conn. 430. The place of excavation is the
“place of injury,” though the loss and damage may have resulted from a
collision during the subsequent runaway: Ibid.

*8 Forks Tp. v. King, 84 Pa. St. 230.

4 Cairncross v. Pewaukee, 86 Wis. 181.

250 INJURIES TO ANIMALS ON HIGHWAYS.

that the defendant was not excused merely because the plain-
tiff knew that some danger existed and voluntarily incurred
it, but that the amount of danger and the circumstances were
for the jury to consider.2°> And if one drives his team on a
track negligently exposed, not voluntarily, but because his
horses are partially beyond his control, he is not to be charged
with negligence.?*°

Where the travelled part of the highway was forty feet wide
and a strange, hired horse was driven within three feet of an
embankment on one side and shied and went over the em-
bankment, the lack of a railing is no ground for a recovery, the
plaintiff being guilty of negligence. “They drove where they
did, not of necessity, but from choice. The danger was as
apparent to them as it could have been to the township au-
thorities.” 757

Where an animal is injured by an obstacle in the street, an
action cannot be maintained unless the plaintiff used ordinary
care to avoid the obstacle.2°® Where A. placed lime rubbish
in the highway the dust of which frightened B.’s horse and
nearly brought him into contact with a wagon, in avoiding
which B. unskilfully drove over other rubbish placed in the
road by C. and was overthrown and hurt, it was held that B.
could not recover against A. as the proximate cause of his
injury was his own unskilfulness.25° And where a horse and
wagon were injured by a voluntary attempt to drive them

*© Clayards v. Dethick, 12 Q. B. 4309.

Bramwell, L. J., in McMahon v. Field, 7 Q. B. D. 591, 504, says of the
above case: “I may observe, however, that I do not think that that case
was rightly decided, for it is not because the plaintiff chose to incur a risk
that he behaved reasonably in the way he acted.”

*° Farmer v. Findlay St. R. Co. (O.), 53 N. E. Rep. 447.

*7 Kuhn v. Walker Tp., 97 Mich. 306.

8 Smith v. Smith, 2 Pick. (Mass.) 621; Butterfield v. Forrester, 11
East 60.

* Flower v. Adam, 2 Taunt. 314.

In Palmer v. Andover, 2 Cush. (Mass.) 600, it is said of this case: ‘The
grounds of the decision are, however, very briefly stated and it is some-
what difficult to understand precisely its extent.”

CONTRIBUTORY NEGLIGENCE. 251

upon street car tracks which were raised but not filled up,
notwithstanding the street was open for the use of travellers,
a recovery was not allowed.?®° Where the plaintiff was driv-
ing on a dark night over a road he knew and let the horses
go at will and they fell over an embankment built to protect
vehicles from slipping down hill, it was held that, as the road
was safe for ordinary travel and the plaintiff took the risk of
letting the horses find their way, the township was not lia-
ble.2% But it is not negligence as a matter of law to drive a
blind horse on a dark night whereby an injury results to the
plaintiff. ‘It was for the jury to consider how dark the night
was.” 22 Where the plaintiff on his horse becoming fright-
ened, grasped the reins and himself backed the horse off an
unguarded embankment, he was not allowed to recover.?®
Where the plaintiff, while riding, was injured by a defect
in the highway, his horse running away because frightened
by a dog, it was held that the question of contributory neg-
ligence was one of fact, though the plaintiff was riding very
fast.26* A married woman is not chargeable with contribu-
tory negligence because she knew that her husband with
whom she was driving had but an imperfect use of one hand
and arm, though if he had had the complete use of them he
might have been able to prevent an accident caused by the
horse, which was a gentle one, taking fright at an unusual oc-
currence as a result of which she sustained personal in-
juries.2° It is not negligence for the owner of cattle to let
them run at large in the streets, where the ordinance allows it,
though excavations are being made for the laying of gas-

*° Rock Island v. Carlin, 44 Ill. App. 610.

7. Mueller v. Ross Tp., 152 Pa. St. 300.

And see Bitting v. Maxatawny Tp., 180 id. 357, as to using a lantern so
as to frighten a timid horse.

*? Brackenridge v. Fitchburg, 145 Mass. 160. And see Milwaukee 7.
Davis, 6 Wis. 377; Bills v. Kaukauna, 94 id. 310.

*8 La Salle v. Wright, 56 Ill. App. 204.

** Brennan wv. Friendship, 67 Wis. 223.

75 Tist. of Col. v. Bolling, 4 App. D. C. 397, 404.

252 INJURIES TO ANIMALS ON HIGHWAYS.

pipes.26* But where one who knew ofa hole made by the city
in an unopened street, turned his horse loose in the neigh-
borhood which, running at large contrary to law, fell in and
was injured, it was held that the plaintiff could not recover
though the defendant also was negligent.?°

Where an expressman left his horse untied in a street near
a curbstone while he was delivering a parcel and the wagon
was struck by a car and the horse injured, it was held that, in
the absence of proof of restiveness or vicious propensity, it
was not negligence per se to leave the horse under the circum-
stances, nor was the defendant’s liability affected by the fact
that the animal’s movements increased the damage.?®* And
where the plaintiff’s horses standing without a driver on the
tow-path of a canal were injured by the defendant’s negli-
gence, it was held that if they were in a proper place at the
time, the fact that a driver might have moved them and so
avoided the accident, did not as a matter of law render the
plaintiff guilty of contributory negligence in leaving them
unattended.?® So, where a plaintiff left his horse unhitched
in the street while he went into a shop a few feet away, but,
when the animal became frightened, caught hold of him and
was dragged thirty feet, this was held not to be negligence,
though an ordinance prohibited leaving a horse unhitched,
as such ordinance “was evidently not intended to apply to
a horse when in the presence and ‘under the control of the
owner or driver.” 77°

*° Noblesville Gas & Imp. Co. v. Teter, 1 Ind. App. 322.

*? Gribble v. Sioux City, 38 Ia. 390—though this decision was overruled
in part in Kuhn v. Chic., R. I. & P. R. Co., 42 id. 420, in so far as it held
that the statutes made it unlawful to permit the animal to be at large.

See Bennett v. Hazen, 66 Mich. 657.

* Albert v. Bleecker St., etc., R. Co., 2 Daly (N. Y.) 389. And see
Greenwood v. Callahan, 111 Mass. 208.

See also § 85, infra.

* Schoonmaker v. McNally, 6 Thomp. & C. (N. Y.) 47.

See Salvas v. New City Gas Co., 2 Leg. News (Can.) 97.

* Louisville, N. A. & C. R. Co. v. Davis, 7 Ind. App. 222.

And see Kearns v. Sowden, 104 Mass. 63; Klipper v. Coffey, 44 Md. 117.

CONTRIBUTORY NEGLIGENCE. 253

On the other hand, where a horse harnessed to a cart was
left standing with the bit out of his mouth on the edge of a
pier, and room was left for only one vehicle to pass, and one
in passing pushed the horse and cart overboard, it was held
that the owner was guilty of negligence and could not re-
cover. “He was not only obstructing a public highway .. .
but he was guilty of gross negligence in standing his horse at
the edge of a pier after removing the bit, the only thing by
which the animal could . . . be in any way controlled.” 27!
So, where a horse attached to a wagon was left loose in the
street, it was held that there could be no recovery against a
telegraph company for the carelessness of an employee in so
handling a broken wire as to strike the horse, frighten him
and cause him to run and eventually be killed.?7*, And where
one after dark, while unloading his wagon, obstructs with his
team an electric street car track, his negligence will prevent
his recovery for an injury done to his team by a car, although
it was more convenient to unload in the position he had
chosen. “The substitution of cable and electric cars for the
horse car and the omnibus is a change which renders imprac-
ticable and dangerous certain uses of the streets which were
once permissible and comparatively safe. It introduces new
conditions, the non-observance of which constitutes negli-
gence,” 278

But one who places his horse and wagon transversely to a
street while loading, is not prevented from bringing an action
against one who carelessly drives against and injures the
horse, by the fact that there is an ordinance requiring vehicles
to be placed lengthwise and near the sidewalk in loading such
articles.274 Where a person leaves his horse in the care of a
deaf and dumb boy on the seat of the wagon, the question

* Morris v. Phelps, 2 Hilt. (N. Y.) 38.

22 West. Un. Tel. Co. v. Quinn, 56 Ill. 319.

28 Winter v. Federal St. & P. V. Pass. R. Co., 153 Pa. St. 26. And see
Gilmore v. Same, Ibid. 31.

™ Steele v. Burkhardt, 104 Mass. 59.

254 INJURIES TO ANIMALS ON HIGHWAYS.

whether he left him without a competent caretaker is for the
jury.27> So, where a husband left his wife in the wagon and
the horses were frightened by a blast, ran away and threw her
out.27® The violation of a local ordinance prohibiting the
owners of horses from leaving them unattended in a street
and not fastened, is not negligence per se, as matter of law,
but it is competent evidence of negligence to go before the
jury.277

An action does not lie in favor of one who receives injuries
from a defective highway while using it for horse-racing and
matching his horse’s speed. Otherwise, it seems, if he drives
fast incidentally to some legitimate purpose for which the
highway was intended.**® Playing with a dog is not such a
reasonable use of the sidewalk as to make the city liable for
injuries resulting from a defect.?7°

The question of contributory negligence is one for the jury,
under all the circumstances of the case.?8°

69. Evidence; Damages.—In an action to recover for an in-
jury sustained by reason of a defective way, if it becomes a
material question whether the plaintiff’s horse had a habit of
shying at the time of the accident, the defendants may, after
introducing evidence of instances of his shying before that
time, prove similar instances afterwards. “The habit of an
animal is in its nature a continuous fact, to be shown by proof
of successive acts of a similar kind. Evidence having been
first offered to show that the horse had been restive and un-
manageable previous to the occasion in question, testimony
that he subsequently manifested a similar disposition was

*° Ark. Teleph. Co. v. Ratteree, 57 Ark. 429.

*® Joliet v. Seward, 86 IIl. 4o2.

*" McCambley v. Staten Island M. R. Co., 32 N. Y. App. Div. 346.

*® McCarthy v. Portland, 67 Me. 167.

*° Jackson v. Greenville, 72 Miss. 220.

™ Carver v. Detroit & S. Plank-Road Co., 69 Mich. 616: Balt. & R.
Turnp. Road v. State, 71 Md. 573, and the cases cited supra.

EVIDENCE ; DAMAGES. 255

competent to prove that his previous conduct was not ac-
cidental or unusual, but frequent and the result of a fixed
habit at the time of the accident.” 78! In a Rhode Island
case, however, it was held that testimony as to the behavior
or disposition of a horse subsequent to the accident, even if
theoretically admissible, should be excluded as impracticable
and confusing.?8?

If a horse’s disposition is such that when exposed to or-
dinary objects and noises on a highway he becomes unman-
ageable with a driver of ordinary care and skill, and this con-
tributes to the injury, the plaintiff cannot recover.283 So, a
habit of stumbling may be shown;78* or that the horse had
defective vision.?®° But where the question was of the plain-
tiffs contributory negligence in driving over a bridge with
no guards or railings a horse blind in one eye, it was held that
text-books relating to the effect of blindness in horses were
inadmissible in evidence, since the subject was not one of ex-
pert testimony but depended on a knowledge of the disposi-
tion of the particular animal.?°®

Where as the result of an accident a horse ran away, it was
held that evidence showing that a horse once doing this will
do so again when the opportunity occurs, is admissible on

*™ Todd v. Rowley, 8 Allen (Mass.) 51. And see Maggi v. Cutts, 123
Mass. 535; Chamberlain v. Enfield, 43 N. H. 356.

72 Stone v. Langworthy (R. I.), 40 Atl. Rep. 832.

*8 Bliss v. Wilbraham, 8 Allen (Mass.) 564.

And see Bailey v. Belfast (Me.), 10 Atl. Rep. 452. Where the defendant
alleged that the mare was a vicious animal and had not been used by a
former owner, the plaintiff was allowed to show in rebuttal that the reason
she had not been used was because the owner had so many horses that
he had not work for all of them: Potter v. Natural Gas Co., 183 Pa.
St. 575.

* Patterson v. South. & North. Ala. R. Co., 89 Ala. 318.

And where the plaintiff had opportunities of observing, it need not
be shown that he actually knew of the habit: Judd v. Claremont, 66
N. H. 418.

* Wright v. Templeton, 132 Mass. 4o.

*§ Gould v. Schermer, ror Ia. 582.

256 INJURIES TO ANIMALS ON HIGHWAYS.

the question of damages.”8* But there is no rule that one
injured by being thrown from a wagon as a result of defects
in a highway when his horses were running away, cannot re-
cover if it be shown that the horses had run away before: the
question of reasonable care is for the jury.788 And it has
even been held that where a defect in the highway caused A.’s
team to run away and collide with B., who sued the town—
evidence that A.’s team was in the habit of running away was
inadmissible.?%°

It has been held that evidence that the plaintiff is habitu-
ally a reckless driver, is inadmissible.2®° And, on the other
hand, evidence that the plaintiff was commonly careful and
skilful in driving, is not admissible to show that at the time
of the accident he was exercising due care.2*! It has already
been stated that evidence of similar cases of fright at the same
object may be given.?9?

The subject of damages for the injury to or death of an ani-
mal has been already treated of,?°* but some additional cases
may properly be considered here. Damages against a town
for injuries to a horse from a defective highway may be pro-
portioned to the length of time of the disability.2°* Evidence
of the animal’s value before and after the accident is admis-
sible.29° Where the animal dies, compensation cannot be
recovered for the loss of the use of its services in addition to

*? Balt. & Y. Turnp. R. v. Crowther, 63 Md. 558.

So, where a horse acquires a habit of kicking, as the result of the ac-
cident: English v. Mo. Pac. R. Co., 73 Mo. App. 232.

*8 Centralia v. Scott, 59 Ill. 129. * Cheney v. Ryegate, 55 Vt. 490.

°° Brennan v. Friendship, 67 Wis. 223.

*“ McDonald v. Savoy, 110 Mass. 49. * See § 66, supra.

*8 See §§ 50, 61, supra.

In an action for damages for an injury to a horse caused by an obstruc-
tion in a street, it was held error to charge that the jury might allow
such sum as they believed the horse to be damaged, as no rule was fur-
nished by which damages could be ascertained: Badgley v. St. Louis
(Mo.), 50 S. W. Rep. 817.

™ Johnson v. Holyoke, 105 Mass. 80.

“° Whiteley v. China, 61 Me. 199.

EVIDENCE ; DAMAGES. 257

its value before the injury.2®* But, in other cases, the loss of
use is a proper element of damages.?°7 Where the horse was
injured by one carelessly driving against him, it was held that
the measure of damages was the expense of his cure, the value
of his services while being cured, and the difference between
his value before the injury and after the cure.?°® The owner
should use ordinary care in looking after the animal and em-
ploying a veterinary surgeon, but is not responsible for all
the mistakes of the surgeon.*°® The fact that the owner of a
horse injured by a defect in the highway kills it, will not pre-
vent his recovering its full value, where there was no reason-
able hope of recovery at the time of killing.3°°

Where the horse was frightened by an object on the high-
way and ran away but was not physically injured, evidence
that the market value of horses generally depreciated 50 per
cent. on their running away was held inadmissible. “The
mode of reaching the amount of injury in its market value to
a horse because of its running away, without wounding or
physical injury to it, on a trial involving that question, must
be to prove the habits of the animal before the occurrence,
the circumstances attending it and how the particular horse
was then and afterwards affected by it; also a description of
the horse and its value prior to the runaway. These are facts
to be established by proof.” 3%

°° Page v. Sumpter, 53 Wis. 652.

7 See Brown v. Southbury, 53 Conn. 212; Wilson v. Troy, 60 Hun
(N. Y.) 183; Gillett v. Western R. Corp., 8 Allen (Mass.) 560.

See also § 61, supra.

8 Streett v. Laumier, 34 Mo. 460. °° Page v. Sumpter, supra.

8° ©’Neil v. East Windsor, 63 Conn. 150.

° Van Wagoner v. N. Y. Cement Co., 36 Hun (N. Y.) 552.

17

TITLE IV.

LIABILITIES OF OWNERS OF ANIMALS.

CHAPTER I.

ANIMALS TRESPASSING AND RUNNING AT LARGE.

70. The common-law rule with re- 76. General rules affecting liability;

gard to restraining animals. scienter ; intention; recovery.
git. Abrogation of the common- 77. When animals are “running at
law rule. large’’; pasturing in the high-
72, Division fences. way.
73. Sufficiency of the fence. 78. Statutes and ordinances regu-
74. Nature and results of the tres- lating running at large.
pass. 79. Distress.
75. Animals straying from the 80. Other remedies against tres-
highway. passing animals.

70. The Common-Law Rule with Regard to Restraining Ani-
mals.—At the common law it was the duty of the owner or
keeper of animals to restrain them from trespassing on the
lands of others whether enclosed or unenclosed, and the latter
had a right of action for such trespasses without regard to
whether the lands were protected by fences or not.1 The
only exception to this rule was where by statute, written
agreement or prescription the owners of adjoining lands were
obliged to maintain partition fences: in this case the party
complaining of the trespass had first to show that he had ful-

* Cooley Torts, 2d ed., 307.
258

THE COMMON-LAW RULE RESTRAINING ANIMALS. 259

filled his duty with reference to such fence; otherwise he could
not recover.2. The reason for such a rule in a populous and
highly cultivated country is obvious; every encouragement
ought to be given to the promotion of agriculture and the
welfare of the classes concerned therein, and it is negligence
for the owner of animals to allow them to run at large and
trespass on the lands of others when there is only a limited
amount of territory available for pasture, within which it is
perfectly easy to confine and tend them. This rule has been
declared to be the law or adopted by statute in many of the
States, especially the more populous ones.

_In Georgia the common-law rule was formerly not in
force;? it is otherwise now, however, except in the counties
where the stock law does not obtain.*

In Illinois it was held in an early case that the common law
was not in force, and the reasons given are quoted as applica-
ble to other new communities. The court said: “However
well adapted the rule of the common law may be to a densely
populated country like England, it is surely but ill adapted
to anew country like ours. If this common-law rule prevails
now, it must have prevailed from the time of the earliest set-
tlements in the State, and can it be supposed that when the
early settlers of this country located upon the borders of our
extensive prairies they brought with them and adopted as
applicable to their condition a rule of law requiring each one
to fence up his cattle; that they designed the millions of fer-
tile acres stretched out before them to go ungrazed, except
as each purchaser from government was able to enclose his
part with a fence? This State is unlike any other of the
Eastern States in their early settlement, because, from the
scarcity of timber, it must be many years yet before our ex-

* Ibid. 398; Pollock Torts, 2d ed., 433.

“Macon & W. R. Co. v. Lester, 30 Ga. 911; Georgia R. & Bkg. Co.
uv. Neely, 56 id. 540.

*Bonner v. De Loach, 78 Ga. 50. See Newton v. Ferrill (Ga.), 25 S. E.
Rep. 422.

260 ANIMALS TRESPASSING AND RUNNING AT LARGE.

tensive prairies can be fenced, and their luxuriant growth
sufficient for thousands of cattle must be suffered to rot and
decay where it grows, unless the settlers upon their borders
are permitted to turn their cattle upon them. . . . The uni-
versal understanding of all classes of the community upon
which they have acted by enclosing their crops and letting
their cattle run at large, is entitled to no little consideration
in determining what the law is, and we should feel inclined
to hold, independent of any statutes upon the subject, on ac-
count of the inapplicability of the common-law rule to the
condition and circumstances of our people, that it does not
and never has prevailed in Illinois.” ®

In this case the cattle entered the plaintiff’s enclosure from
the highway, but in a later case where they entered through
the space left by the removal of an inside fence it was held
that the plaintiff could recover. “The latter decision limits
and qualifies the first to stock running at large in the high-
ways and commons, and leaves the common law in force as
to inside fences, unless regulated by the statute regarding par-
tition fences.” 7

And now under the statute imposing a penalty on one per-
mitting domestic animals to run at large, except where au-
thorized by a vote, owners must keep their animals from tres-
passing or be liable for the results. The common-law rule
has been entirely restored, except so far as the statute regu-
lating partition fences is concerned.®

In Indiana the common-law rule is in force, where no order
has been made by county commissioners allowing animals to
run at large;? and this without reference to the quality of

° Seeley v. Peters, 5 Gilm. (IIl.) 130. “Buckmaster v. Cool, 12 Ill. 74.

* McCormick v. Tate, 20 Ill. 334. And see McBride v. Lynd, 55 id. 411;
Birket v. Williams, 30 Ill. App. 451.

* Bulpit v. Matthews, 145 Ill. 345; D’Arcy v. Miller, 86 id. 102; Selover
v. Osgood, 52 Il. App. 260; McPherson v. James, 69 id. 337.

° Atkinson v. Mott, 102 Ind. 431; Welch v. Bowen, 103 id. 252; In-
dianapolis & Cinc. R. Co. v. Caldwell. 9 id. 397; Same v. McClure, 26 id.
370.

THE COMMON-LAW RULE RESTRAINING ANIMALS. 261

fencing or whether the animals are breachy or accustomed to
do mischief.1° “But this was not the rule in the early settle-
ment of this State. It was not then applicable to our circum-
stances.” 11

In Kansas the same rule has been held to be in force, and
where adjoining owners fence their lands in common, each
must take care of his own cattle and is liable if they wander
on the other’s land. ‘The statutes do not require the parties
to build partition fences.” 12 While it has been held, how-
ever, that any statute authorizing cattle to run at large on
the private property of individuals would be unconstitutional,
a statute requiring land to be fenced and enacting that no
action shall lie for injuriés by cattle unless such fence is built
is in force and amounts practically to an abrogation of the
common-law rule. “The owner of real estate does not use
reasonable and ordinary care and diligence to protect his
property from the intrusion of roaming cattle unless he en-
closes it with a lawful fence. And if he receives any injury
through the want of such lawful fence, he is in about the same
condition as though he received injury in any other way
through his own negligence.” 18 And an act excluding cer-
tain counties for a time from the operation of this statute was
held unconstitutional as not being of uniform operation
through the State."#

In Maine this rule is in force except so far as division fences
are concerned, and where there is no obligatory fence each
occupant is obliged to keep his animals off the adjoining

* Stone v. Kopka, 100 Ind. 458.

™ Mich. South. & N. I. R. Co. v. Fisher, 27 Ind. 96.

” Baker v. Robbins, 9 Kan. 303.

* Un. Pac. R. Co. v. Rollins, 5 Kan. 167. And see Caulkins v. Mathews,
Ibid. 191; Larkin v. Taylor, Ibid. 433; Fillmore v. Booth, 29 id. 134; Win-
grove v. Williams, 6 Kan. App. 262.

It is not a misdemeanor in Kansas to drive horses on land and allow
them to destroy growing grass: State v. Tincher, 57 Kan. 136.

“ Darling v. Rodgers, 7 Kan. 592.

262 ANIMALS TRESPASSING AND RUNNING AT LARGE.

land.1° The rule is likewise in force in Massachusetts® and
Maryland.17

In Michigan it has been held that the common law has not
been changed, as there is no statute requiring individuals to
fence their lands; nevertheless the statute does preclude re-
covery for damage by beasts unless the plaintiff's land was
fenced.18 In Minnesota and New Jersey the common-law
rule is in force, except so far as division fences are con-
cerned.1® So, in New York, where there is no town regula-
tion as to fences or animals running at large.*° In New
Hampshire the owner’s liability was held to extend to a case
where his cow, of which he had general control, was turned
out of its pasture by a stranger and driven in the direction of
the plaintiff's close and, being left, strayed upon it.21_ And
the common-law rule holds in North Dakota.??

In Ohio the common-law rule was formerly not in force.?*
It has, however, been restored by statute. ‘Prior to the
passage of this act, the owner of domestic animals not breachy
or unruly had the right in this State to allow them to run at
large. . . . By the statute in question a new policy is intro-
duced in the State in regard to the restraint of the classes of
domestic animals named in the statute. The object of the

* Webber v. Closson, 35 Me. 26; Lord v. Wormwood, 29 id. 282; Little
v. Lathrop, 5 Greenl. (Me.) 356; Sturtevant v. Merrill, 33 Me. 62; Knox
v. Tucker, 48 id. 373.

* Thayer v. Arnold, 4 Metc. (Mass.) 580.

* Balt. & O. R. Co. v. Lamborn, 12 Md. 257.

* Williams v. Mich. Cent. R. Co., 2 Mich. 259.

* Locke v. St. Paul & Pac. R. Co., 15 Minn. 350; Coxe v. Robbins, 9
N. J. L. 384; Chambers v. Matthews, 18 id. 368; Vandegrift v. Rediker,
22 id. 185.

“Wells v. Howell, 19 Johns. (N. Y.) 385; Stafford v. Ingersol, 3 Hill
(N. Y.) 38; Angell v. Hill, 18 N. Y. Suppt. 824; Tonawanda R. Co. v.
Munger, 5 Den. (N. Y.) 255.

* Noyes v. Colby, 30 N. H. 143.

* Bostwick v. Minneapolis & P. R. Co., 2 N. D. 440.

* Kerwhacker v. C., C. & C. R. Co., 3 O. St. 172; Cleveland, C. & C. R.
Co. v. Elliott, 4 id. 474. And see Marietta & Cinc. R. Co. 7. Stephenson,
24 id. 48.

THE COMMON-LAW RULE RESTRAINING ANIMALS. 263:

statute was, in view, doubtless, of the improved condition of
the lands of the State, to abolish the former rule and take
from the owner of such animals the right previously existing
of allowing them to run at large. . . . It is said the authority
to take up applies only to such animals as are at large with
the consent of, or by the fault of the owner. We do not
think so. The danger to the public of mischief from the in-
trusions of the animals is the same whether they are at large
with or without the fault of the owner.” >4

In Oregon it was held in an early case that the common-
law rule was not in force.*° This appears to have been de-
cided, however, on the construction of a particular statute,
as a later case holds that, in the absence of a statute changing
the common-law rule, one is not obliged to fence his lands
before he can maintain an action for trespass by cattle. The
statutes being more or less local in their character, this rule
may therefore be considered in force.?®

In Pennsylvania the common-law rule was originally in
force.27. An owner of cattle is, however, not liable for a tres-
pass by their pasturing upon unenclosed woodland. “Their
entry is, in strictness a trespass which, for its insignificance,
is not noticed by the law, probably on the foot of the maxim
de mimimis, or perhaps because it is better that all waste lands
should be treated as common without stint. It certainly
saves vexatious litigation.” °& The effect of the early statutes
was to make it necessary that the owner of improved lands
should fence them, both to restrain his own cattle and shut

* Sloan v. Hubbard, 34 O. St. 583. The decision in Marietta & Cinc.
‘R. Co. v. Stephenson, supra, was held not inconsistent, as “that was an
action to recover for injuring cattle; and as they were at large without
the omission of reasonable care on the part of the owner, it was held
that he was not guilty of contributory negligence.”

* Campbell v. Bridwell, 5 Oreg. 311. And see Moses v. So. Pac. R.
Co., 18 id. 385, where the same statement is made. Cf. the cases cited
infra.

*° French v. Cresswell, 13 Oreg. 418. And see Walker v. Blooming-
camp (Oreg.), 43 Pac. Rep. 175; Fry v. Hubner (Oreg.), 57 id. 420.

” Gregg v. Gregg, 55 Pa. St. 227. * Knight v. Abert, 6 Pa. St. 472.

264 ANIMALS TRESPASSING AND RUNNING AT LARGE.

out those of his neighbors, and without such fence he could
not maintain trespass.2? This does not apply where the duty
to fence is common to two adjoining land-owners but is
waived by mutual consent: in that case each is liable for the
trespass of his cattle.2° By a late statute the earlier ones are
repealed and the rights of the owners of cattle and land are
left as they were at the common law: the owner of cattle sued
for their trespass must show, to prevent recovery, that he
kept or tried to keep his cattle in by a sufficient fence? But
this statute did not repeal one that required party-line fences
to be maintained sufficient to restrain the tendency of stock
to roam.*?

The common-law rule is in force in Rhode Island.3* It
was held not to be in South Carolina ;34 but the general stock
law prohibits the running at large of stock, and an act ex-
empting certain land from the benefit thereof was held un-
‘constitutional as a “taking” of private property by authoriz-
ing land to be taken for the building of a fence to enclose a
-pasture.®®

In Vermont the common-law rule prevails,?° and extends
‘to the case of division fences. “The statute imposing the
-duty on adjoining proprietors of land to erect and maintain
fences recognized the same principle. For the object and
‘design of fencing is not to keep the cattle of others off their
premises, but to keep their own at home. The owner of a
-close is not required to guard against the intrusion of cattle

* Gregg v. Gregg, supra. *® Milligan v. Wehinger, 68 Pa. St. 235.

* Barber v. Mensch, 157 Pa. St. 390; Arthurs v. Chatfield, 9 Pa. Co.
Cb934.

As to statutes regulating swine, see Mitchell v7. Wolf, 46 Pa. St. 147;
Stewart v. Benninger, 138 id. 437.

* Erdman v. Gottshall, 9 Pa. Super. Ct. 295.

* Tower v. Providence & W. R. Co., 2 R. I. 404.

* Murray v. So. Car. R. Co., 10 Rich. L. (S. C.) 227.

© Fort v. Goodwin, 36 S. C. 445. And see Smith v. Bivens, 56 Fed. Rep.
352, where this case was followed.

* Keenan v. Cavanaugh, 44 Vt. 268.

And see Town v. Lamphire, 36 id. 101, as to restraining rams.

THE COMMON-LAW RULE RESTRAINING ANIMALS. 265

or animals belonging to others, but each is required to pre-
vent his own animals from entering upon the close of the
other.” 37

In Wisconsin the same rule has been held to be the law,
“though it is generally disregarded by common consent in
the newly settled parts of the State.” 38

71, Abrogation of the Common-Law Rule——The reasons why
the common-law rule is less suited to the needs of a newly
settled country have been admirably stated in the opinions
in Seeley v. Peters? and Buford v. Houtz.4® We, accord-
ingly, find that in many of the States, especially the Western
and Southern ones, it has been declared not to be in force or
has been abrogated by statute, and that the land-owner is
there obliged, not to fence in his own cattle, but to fence out
those of others, and is not entitled to recover in trespass un-
less he can show that he has fulfilled his duty with reference
to fencing. As in the preceding section, the States will be
considered approximately in their alphabetical order.

In Alabama the common-law rule is not in force, except
where by local statutes boundary lines are declared lawful
fences rendering the owner of cattle liable for trespasses in
passing over them.*! Nor is the rule in force in Arkansas*?
or California, except in certain counties of the latter State.**

In Colorado the common-law rule does not hold as against
the trespasses of cattle,*# but the same custom was held not
to apply to the case of sheep. ‘‘The owner of cattle in this

Hurd v. Rutland & B. R. Co., 25 Vt. 116.

* McCall v. Chamberlain, 13 Wis. 637.

*° 5 Gilm. (IIl.) 130, cited supra, q. v. ® 133 U. S. 320, cited infra, q. v.

* Joiner v. Winston, 68 Ala. 129; Wilhite v. Speakman, 79 id. 400;
Mobile & O. R. Co. v. Williams, 53 id. 595; Louisville & N. R. Co. v.
Cochran, 105 id. 354.

*” Little Rock & F. S. R. Co. v. Finley, 37 Ark. 562.

* Merritt v. Hill, 104 Cal. 184; Waters v. Moss, 12 id. 535; Logan v.
Gedney, 38 id. 570, where it was held that the laws restricting herding
are not meant to prohibit free ranging at large.

“ Morris v. Fraker, 5 Colo. 425; Nuckolls v. Gaut, 12 id. 361.

266 ANIMALS TRESPASSING AND RUNNING AT LARGE.

State relies almost entirely upon his recorded brand and upon
the annual round-up for identification thereof and protection
from loss; except in a few isolated instances, such stock is
never, except in summer or winter, confined to an enclosed
area or kept close-herded upon the range. And the conclu-
sion arrived at in the opinion above mentioned [1. e., Morris
v. Fraker, cited supra] is based largely upon the general cus-
tom that has always prevailed among stockmen in this coun-
try of allowing their cattle to roam at will upon the public
domain. But persons who make sheep raising and wool
growing their business always pasture in enclosures or close-
herd upon the range. The difference in intelligence and in-
stinct, in disposition and physical characteristics, between
sheep and cattle, renders it absolutely necessary to handle
them differently. A flock of sheep turned loose to run at
will upon the range would soon be entirely lost to the owner.
True there is no law except that of self-interest to prevent the
owners allowing them to run at large. But the custom of
close-herding sheep is as fully established and as universally
recognized as is that of allowing cattle to range at will... .
The farmer in Colorado, aware of the established custom of
letting cattle run at will, in the absence of statute, builds a
fence sufficient to protect his crop therefrom; but being ad-
vised of the equally well-established custom of enclosing or
close-herding sheep, he does not so construct his fence as to
keep them out of his field. It would be manifestly unjust to
apply the same rule for injuries to his crop by the latter that
would be applicable for like injuries under similar circum-
stances by the former.” *®

In Connecticut the common-law rule is not in force,*® ex-
cept as to fencing in unruly cattle.47 And it was held not to
apply to the Black Hills country of Dakota as “not in accord-
ance with the common usage and necessities of the new and

* Willard v. Mathesus, 7 Colo. 76.
* Studwell v. Ritch, 14 Conn. 292; Hine v. Munson, 32 id. 210.
* Hine v. Wooding, 37 Conn. 123.

ABROGATION OF THE COMMON-LAW RULE. 267

growing section.” #8 Nor is it the rule in Florida,*® Indian
Territory,©° Iowa,®! or Kentucky.”

In Mississippi, though the common-law rule does not pre-
vail,°* a statute requiring owners to enclose stock and pro-
viding that trespassing animals may be sold was passed and
held constitutional.5+

This rule is likewise not in force in Missouri,®®> Montana,®¢
Nebraska,®” Nevada,°® North Carolina,5® Washington,®° or
West Virginia.“4 Nor does it prevail in Texas. “It is in-

* Sprague v. Fremont, E. & M. V. R. Co., 6 Dak. 86. And see Wil-
liams v. North. Pac. R. Co., 3 id. 168, 175.

* Savannah, F. & W. R. Co. v. Geiger, 21 Fla. 660.

° Gulf, C. & S. F. R. Co. v. Washington, 49 Fed. Rep. 347; Eddy v.
Evans, 58 id. 151.

* Alger v. Miss. & Mo. R. Co., 10 Ia. 268; Frazier v. Nortinus, 34 id.
82; Harrison v. Adamson, 76 id. 337.

As to the contrary rule under the statute of 1870, see Little v. McGuire,
38 Ia. 560; 43 id. 447.

? Wills v. Walters, 5 Bush (Ky.) 351; Louisville & N. R. Co. v. Sim-
mons, 85 Ky. 151.

*® Vicksburg & J. R. Co. v. Patton, 31 Miss. 156; Mobile & O. R. Co.
v. Hudson, 50 id. 572.

* Anderson v. Locke, 64 Miss. 283.

* Gorman v. Pac. R. Co., 26 Mo. 445; McPheeters v. Hannibal & St.
J. R. Co., 45 id. 22; Mann v. Williamson, 70 id. 661; Bradford v. Floyd,
80 id. 207; Fenton v. Montgomery, 19 Mo. App. 156; Stovall v. Emerson,
20 id. 322; Board v. St. Louis, I. M. & S. R. Co., 36 id. 151.

*° Smith v. Williams, 2 Mont. 195.

* Delaney v. Errickson, 10 Neb. 492; 11 id. 533—at least so far as the
uncultivated, unenclosed prairie lands are concerned. In Lorance vw.
Hillyer (Neb.), 77 N. W. Rep. 755, it was held that the Nebraska herd
law limits the common-law liability of the owner of trespassing animals
only in excluding damages committed on uncultivated lands.

*° Chase v. Chase, 15 Nev. 259.

° Laws v. No. Car. R. Co., 7 Jones L. (N. C.) 468; Burgwyn v. Whit-
field, 81 N. C. 261; Runyan v. Patterson, 87 id. 343. See State v. Ed-
monds, 121 id. 679.

© Timm v. North. Pac. R. Co., 3 Wash. Ty. 299. But the pasturing of
sheep on the lands of another, whether closed or unenclosed, without his
consent, is unlawful by statute: Northern Pac. R. Co. v. Cunningham,
89 Fed. Rep. 504.

* Blaine v. C. & O. R. Co., 9 W. Va. 252; Layne v. O. River R. Co.,

35 id. 438.

268 ANIMALS TRESPASSING AND RUNNING AT LARGE.

applicable to our situation and the customs and habits of the
early settlers of the country, and inconsistent with our legis-
lation in regard to fences and stock.” ** But this does not
mean that “for no breach of his fence and invasion of his
pasture by domestic animals could a land-owner recover
under our laws. It may be admitted that, if his enclosure
be sufficient to exclude all cattle of an ordinary disposition,
he would have the right to recover for the trespass of such as
were peculiarly vicious and prone to break fences.” ®% And
the owner of cattle is not authorized to enclose another’s land
so as to reap from it those benefits which, as a rule, are in-
cident exclusively to ownership.*+

The same principles have been applied to the public lands
of the United States in a case where it was held that the plain-
tiff who asserted title to 350,000 acres out of 921,000 acres
should not have a bill granted to restrain the defendants from
using the public lands for their stock. The court said: “We
are of opinion that there is an implied license, growing out of
the custom of nearly a hundred years, that the public lands
of the United States, especially those in which the native
grasses are adapted to the growth and fattening of domestic
animals, shall be free to the people who seek to use them
where they are left open and unenclosed and no act of govern-
ment forbids this use. . . . It has never been understood that
in those regions and in this country, in the progress of its set-
tlement, the principle prevailed that a man was bound to keep
his cattle confined within his own grounds, or else would be
liable for their trespasses upon the unenclosed grounds of his
neighbors. Such a principle was ill-adapted to the nature
and condition of the country at that time. Owing to the

" Pace v. Potter, 85 Tex. 473. And see Davis v. Davis, 70 id. 123; Fin-
ley v. Bradley (Tex. Civ. App.), 21 S. W. Rep. 609.

“ Clarendon Land Inv. & Ag. Co. v. McClelland, 86 Tex. 179.

As to the offense of staking a horse on the enclosed land of another,
see Daly v. State (Tex. Cr.), 48 S. W. Rep. 515.

“St. Louis Cattle Co. v. Vaught, 1 Tex. Civ. App. 388.

ABROGATION OF THE COMMON-LAW RULE. 269

scarcity of means for enclosing lands and the great value of
the use of the public domain for pasturage, it was never
adapted or recognized as the law of the country, except as
it might refer to animals known to be dangerous and per-
mitted to go where their dangerous character might produce
evil results. Indeed, it is only within a few years past, as the
country has been settled and become highly cultivated, all
the land nearly being so used by its owners or their tenants,
that the question of compelling the owner of cattle to keep
them confined has been the subject of agitation. Nearly all
the States in early days had what was called the fence law,
a law by which a kind of fence, sufficient in a general way to
protect the cultivated ground from cattle and other domestic
animals which were permitted to run at large, was prescribed.
The character of this fence in most of the statutes was laid
down with great particularity, and, unless it was in strict con-
formity to the statute, there was no liability on the part of
the owner of cattle if they invaded the enclosure of a party
and inflicted injury on him. If the owner of the enclosed
ground had his fence constructed in accordance with the re-
quirements of the statute, the law presumed then that an ani-
mal which invaded the enclosure was what was called a
breachy animal, was not such animal as should be permitted
to go at large, and the owner was liable for the damages done
by him. Otherwise the right of the owner of all domestic
animals to permit them to run at large, without responsibility
for their getting upon the lands of his neighbor, was con-
ceded.”

72. Division Fences.—Where by statute, written agreement
or prescription adjoining land-owners are severally bound to
keep up their own portions of a partition fence, each is liable
for the trespasses of his own cattle through the portion of the
fence which he is bound to repair.°* And it is immaterial

® Buford v. Houtz, 133 U. S. 320. Cooley Torts, 2d ed., 399, 400.
And neither can recover where his negligence caused the trespass: Car-

270 ANIMALS TRESPASSING AND RUNNING AT LARGE.

that the plaintiff's own portion was also out of repair.®" It is
incumbent on the defendant to excuse himself by showing
that the animals passed through a defect for which the plain-
tiff was responsible, consequently where there is no evidence
as to which portion they passed through, both being out of
repair, the plaintiff may recover.°8 On the other hand, it
has been held that the injured party must show affirmatively
that the trespass was through the other’s portion of the fence
or through his own portion, which was sufficient.® The fact
that the defendant has actually maintained the portion of the
fence through which the cattle entered has been held prima
facie evidence to sustain a recovery, in the absence of evidence
on the part of the defendant that the plaintiff was bound to
maintain that portion.”°

If there has been no legal division of the fence between the
parties, each is liable, where the common-law rule prevails,
for the trespass of his own animals.1 And the same is true

penter v. Cook (Vt.), 30 Atl. Rep. 988 [see Same v. Same (Vt.), 41 id.
1038]; Scott v. Grover, 56 Vt. 499; Cowles v. Balzer, 47 Barb. (N. Y.)
562; Griffin v. Martin, 7 id. 297; Weide v. Thiel, 9 Ill. App. 223; Duffees
v. Judd, 48 Ia. 256.

As to an action on an agreement where there is no prescription, see
Nowel vw. Smith, Cro. Eliz. 709.

Where there was a prescription, the tenant could be compelled to fence
by the writ of curia claudenda: Fitzh. Nat. Brev., Cur. Claud. 297.

* Ozburn v. Adams, 70 Ill. 291; Pinnell v. St. Louis, A. & T. R. Co.,
49 Mo. App. 170.

In O’Riley v. Diss., 41 Mo. App. 184, it was held that the covenant to
construct a division fence was mutual and the plaintiff must show per-
formance on his part, but that the contract duty having been waived by
both parties, the plaintiff could recover on the defendant’s violation of his
common-law obligation to keep his cattle in.

* Deyo v. Stewart, 4 Den. (N. Y.) 101; Phillips v. Covell, 79 Hun
(N. Y.) 210.

* Selover v. Osgood, 52 Ill. App. 260; D’Arcy v. Miller, 86 Ill. 102.

*® Colden v. Eldred, 15 Johns. (N. Y.) 220. But see Sturtevant v. Mer-
rill, 33 Me. 62.

“ Knox v. Tucker, 48 Me. 373; Thayer v. Arnold, 4 Metc. (Mass.) 589;
McKowan v. Harmon, 56 Ill. App. 368; Angell v. Hill, r8 N. Y. Suppt.
824.

DIVISION FENCES. 271

where the maintenance of a fence has been mutually waived
by the parties.7?. But a joint maintenance for a long time
will not give rise to a prescriptive obligation by either to main-
tain a particular portion.7* Where it is impossible to erect a
partition fence owing to the fact that the lands of the parties
are separated by a non-navigable river, each is liable, as at
common law, for the trespasses of his cattle.”4

One who removes a partition fence must give due notice
to the other party.”> He is then remitted to his common-
law liability for the trespass of his cattle.7* Otherwise where
the fence is on his own land.**7 And where the plaintiff has
had a reasonable time to build a proper fence, he cannot re-
cover."® So, where the plaintiff had removed a part of the
fence erected by the defendant under a claim of right, it was
held that after a reasonable time had elapsed for the defend-
ant to rebuild, there was no license for the entry of the latter’s
cattle and he was liable for their trespass."® Where the plain-
tiff removed his portion of the fence and notified the defend-
ant to remove his cattle, which the latter did not do, and the
defendant afterwards removed his own part of the fence, he
was held liable for the trespass of his cattle.8° Where the
plaintiff sued for damages to his crop by cattle in consequence
of the defendant’s removal of the division fence, the crop
having been sown after the removal, it was held that he could
not recover by reason of his negligence.“ And where the

® Myers v. Dodd, 9 Ind. 290; Winters v. Jacobs, 29 Ia. 115; Milligan
v. Wehinger, 68 Pa. St. 235.

® Webber v. Closson, 35 Me. 26.

™ Bissel v. Southworth, 1 Root (Conn.) 269.

® McCormick v. Tate, 20 Ill. 334.

* Holladay v. Marsh, 3 Wend. (N. Y.) 142.

™ Whalon v. Blackburn, 14 Wis. 432.

* Smith v. Johnson, 76 Pa. St. 191.

Recovery should be limited to entries occurring before such time:
Watkins v. Rist, 67 Vt. 284.

7 Sturtevant v. Merrill, 33 Me. 62.

°° Van Slyck uv. Snell, 6 Lans. (N. Y.) 299.

*' Hassa v. Junger, 15 Wis. 598.

272 ANIMALS TRESPASSING AND RUNNING AT LARGE.

defendant removed the division fence without committing a
trespass, he was held not liable for the trespass of a stranger’s
cattle.*?

The tenant of a close is obliged to fence only against cattle
which are rightfully on the adjoining land.§* And if the
fence of the first close is sufficient, he can recover for the tres-
pass of animals entering a second close which is insufficiently
fenced.84 But the rule is otherwise where the first close is
insufficiently fenced and the animals pass through that into
another close of the same owner, the fence of which is suffi-
cient.®° “If A. has green acre, adjoining to his own close
white acre, which adjoins to B.’s close black acre which A.
ought to fence against: If B.’s cattle go from his black acre
to A.’s white acre and thence to A.’s green acre this is no tres-
pass, because A. did not fence his white acre against B.’s black
acre.” 8° Where the defendant’s cattle enter upon the plain-
tiff’s land through the close of a third person in which they
have no right to be, the defendant is liable in trespass though
both the fences are defective.” And the owner of the inter-
mediate close is not liable.*8 In accordance with these prin-
ciples it was held that where defendant’s beast escaped from
his field into A.’s field, thence into B.’s, thence into plaintiff’s,
where he injured a mare, the defendant was liable, though as
between him and A., the latter was bound to keep the fence
in repair, and though the fence between B.’s field and the
plaintiff's was insufficient. “It was negligence to turn the
animals into a lot insecurely fenced . . . without regard to
the obligations existing between the defendant and the tenant
of the next lot. . . . As to the plaintiff, the animals while in

* Richardson v. Milburn, 11 Md. 340. “ Rust v. Low, 6 Mass. go.

“ Herold v. Meyers, 20 Ia. 378. ™ Page v. Olcott, 13 N. H. 309.

* Rust v. Low, supra, citing Jenk. 4 Cent. ca. 5.

“ Bac. Abr., Trespass H.; Lord v. Wormwood, 29 Me. 282.

* Little v. McGuire, 43 Ia. 447; Gowan v. St. Paul, S. & T. F. R. Co.,
25 Minn. 328; Lawrence v. Combs 37 N. H. 331.

Even where the breach of the fence is made by his own cattle, unless
occurring under his control: Durham v. Goodwin, 54 Ill. 460.

DIVISION FENCES. 273

that lot were unlawfully there and no obligation rested upon
him to fence his lot against them.” 8°

| Where A.’s cattle, lawfully on B.’s land, escape thence to
C.’s land through a defect in a division fence which B. was.
bound to repair, A. is liable to C. for the trespass.°° But it
has been held also that if one voluntarily permits a stranger’s
cattle to mingle with his on his own land and trespass upon
his neighbor’s land, he is responsible for the damage done
by both, and may be regarded as “owner” pro hac vice of the
stranger’s cattle within the meaning of a statute limiting the
liability to the “owner” of the trespassing stock.°! Where A.
and B., who were adjoining land-owners, made an agreement
to repair a partition fence and A. leased the land, it was held
that his tenant could not have an action against B. for dam-
age by animals breaking through a fence that A. was bound
to maintain.®?

Where the plaintiff and A. owned adjoining tracts of
pasture land surrounded but not separated by fences, so as.
to be in one enclosure, and the defendant purchased a part
of A.’s land, and, as a part of the agreement, A. separated by
a fence the defendant’s land from the part retained by him,
and the defendant then used the plaintiff’s land as well as his.
own for pasturing stock, it was held that the defendant was.
not liable for the use of the plaintiff’s land from the time the
fence was constructed between A.’s property and his own.

The rule where the adjoining lands are purchased by
one person has been thus stated: “Where adjoining lands.
which have once belonged to different persons, one of whom
was bound to repair the fences between the two, afterwards
become the property of the same person, the pre-existing ob-

* Lyons v. Merrick, 105 Mass. 71.

® Stafford v. Ingersol, 3 Hill (N. Y.) 38.

" Montgomery v. Handy, 62 Miss. 16.

That trespass is not the proper remedy for damage to a crop by a
stranger’s cattle through defendant’s failure to fence, see Crawford v-
Hughes, 3 J. J. Marsh. (Ky.) 433.

®° Baynes v. Chastain, 68 Ind. 376. ® Pace v. Potter, 85 Tex. 473.

18

274 ANIMALS TRESPASSING AND RUNNING AT LARGE.

ligation to repair the fences is destroyed by the unity of
ownership. And where the person who has so become the
owner of the entirety afterwards parts with one of the two
closes, the obligation to repair the fences will not revive, un-
less express words be introduced into the deed of conveyance
for that purpose.” **

In Alabama it was held that where there was a statutory
obligation upon adjacent owners for the joint maintenance of
the whole of a fence, even if there were a special contract that
each should keep up one-half, neither could recover for the
trespass of the other’s cattle, the remedy being an action for
breach of contract.°> This decision, however, seems to stand
alone, and is opposed to the rule laid down in the above cases.

73. Sufficiency of the Fence.—The question as to the suffi-
ciency of the fence to turn off animals is one ordinarily for the
jury. It is frequently, however, a matter of statutory regula-
tion. It has been held that no action lies for injuries sus-
tained by the trespass of animals, unless the lands are sur-
rounded by a statutory fence.°* But a substantial compliance
with the statute is sufficient : an immaterial variation in height
from a lawful fence will not defeat the action.°7 Other cases
have held that a fence need not be a statutory one. [If it is
sufficient to exclude ordinary cattle this is all that is neces-
sary.°® Ina California case it is said: “A fence which forms
a perfect enclosure and is sufficient to turn stock, which is
good, strong and substantial and built of stone, must, we
think, be the equivalent of the lawful fences specifically de-
scribed in the statute.” °°

“ Boyle v. Tamlyn, 6 B. & C. 329, 337.

*" Walker v. Watrous, 8 Ala. 493.

* Mann v. Williamson, 70 Mo. 661; Pruitt v. Ellington, 59 Ala. 454.

* Smith v. Williams, 2 Mont. 195.

* Finley v. Bradley (Tex. Civ. App.), 2t S. W. Rep. 609; Davis 7.
Davis, 70 Tex. 123; Race v. Snyder, 10 Phila. (Pa.) 533.

® Meade v. Watson, 67 Cal. sor.

SUFFICIENCY OF THE FENCE. 275

It has also been held that the fence prescribed by statute
must entirely surround the land: proof that it was of lawful
height and strength where the animals broke through is not
sufficient.!°° The law, it was said, would presume that cattle
were first tempted to break into the enclosure by reason of
the lowness of other parts of the fence.1°! Therefore, an in-
struction that if the average height of the fence was the statu-
tory height, that was sufficient, was held erroneous.1° But
where the defendant entered the plaintiff’s premises and left
a fence down, whereby stock entered and destroyed the lat-
ter’s crop, it was held that the fact that the plaintiff’s fence was
not as high in other places as the statute required was no de-
fence.°? And other cases have held that the land need not
be surrounded by a statutory fence: it is sufficient if it fulfilled
the requirements where the animals broke through.1°%* The
question seems to be largely one of interpretation of particular
statutes.

Where the statute speaks of “unruly cattle that will not be
restrained by ordinary fences,” “ordinary fences” does not
mean lawful fences, but such fences as are common and suffi-
cient to restrain orderly cattle.1°° Where breachy animals
break through a defective fence, the plaintiff must show that
the alleged trespass would have been committed if the fence
had been such as a good husbandman ought to keep.1° In
Illinois partition fences must be at least five feet high and an
outside fence is sufficient if it would prevent the breaking in
of stock not breachy ;1°7 whereas, in Indiana, it is immaterial
whether any fences other than the outside ones were suffi-
cient.198

* Stovall v. Emerson, 20 Mo. App. 322; Smith v. Williams, 2 Mont. 195.

™ Polk v. Lane, 4 Yerg. (Tenn.) 36. ‘ Prather v. Reeve, 23 Kan. 627.

8 Crawford v. Maxwell, 3 Humph. (Tenn.) 476.

™ Rice v. Nagle, 14 Kan. 498; Crane v. Ellis, 31 Ia. 510; Noble v. Chase,
60 id. 261.

*% Hine v. Wooding, 37 Conn. 123. ™ Phelps v. Cousins, 29 O. St. 135.

* Scott v. Wirshing, 64 Ill. 102; Scott v. Buck, 85 id. 334.

* Crisman v. Masters, 23 Ind. 319.

276 ANIMALS TRESPASSING AND RUNNING AT LARGE.

Where the statutes allow cattle to run at large and the
owner of land built a barbed-wire fence sufficient to keep off
all the cattle that were in the neighborhood at the time, but
insufficient to keep off smaller cattle subsequently found
there, such as calves and yearlings, such owner was held liable
for the insufficiency of the fence.1°? Where a young stallion
escaped through a fence, the sufficiency thereof is a question
for the jury, though the fence was common among farmers
and usually considered safe.12° Under a contract to maintain
a hedge until it should be sufficient to turn “ordinary stock,”
that phrase means such stock as are permitted by law to run
at large.114

Where A.’s fence was built on B.’s land and treated as a
partition fence, it was held that A.’s land was enclosed as re-
quired by law and he might bring an action for the trespass
of B.’s cattle.11?

In order that a defect in a fence may constitute a defence
in trespass, it should be specially pleaded.11®

74. Nature and Results of the Trespass.—An action will lie for
the trespass of an animal irrespective of the extent of the tres-
pass or the amount of damage done. Some damage, if only
nominal, is always presumed.1** In an English case, where
a horse bit and kicked a mare through a fence, and his owners
were held liable apart from any question of negligence, Lord
Coleridge said: “It is clear that in determining the question
of trespass or no trespass, the court cannot measure the
amount of the alleged trespass; if the defendant place a part
of his foot on the plaintiff’s land unlawfully, it is in law as
much a trespass as if he had walked half a mile on it. It has,
moreover, been held again and again that there is a duty on

* Clarendon Land Inv. & Ag. Co. 7. McClelland, 86 Tex. 170.
™ Mclivaine v. Lantz, 100 Pa. St. 586.

™ Usher v. Hiatt, 21 Kan. 548. ™ Moore cz. White, 45 Mo. 206.
™ Blacklock v. Milliken, 3 U. C. C. P. 3a.

™ Pierce v. Hosmer, 66 Barb. (N. Y.) 345.

NATURE AND RESULTS OF THE TRESPASS. 277

a man to keep his cattle in, and if they get,on another’s land
it is a trespass ; and that is irrespective of any question of neg-
ligence whether great or small. In this case it is found that
there was an iron fence on the plaintiff’s land, and that the
horse of the defendants did damage to that of the plaintiff
through the fence. It seems to me sufficiently clear that
some portion of the defendants’ horse’s body must have been
over the boundary. That may be a very small trespass; but
it is a trespass in law.” 145

With regard to a dog the rule appears to be different. It
has been held that a dog’s jumping into a field without the
consent of his master is not a trespass for which an action will
lie.4® It is no trespass where the owner of land chases sheep
out with a little dog and then calls the dog off ;'47 nor where
a person goes along a footpath and his dog happens to escape
from him and run into a paddock and pull down a deer against
his will148 In a later case the question was discussed but
not decided, whether the owner of a dog is answerable in
trespass for every unauthorized entry of the animal into the
land of another. The reasons given for a distinction between
animals like dogs and cats and others like oxen were, first, the
difficulty or impossibility of keeping them under restraint;
second, the slightness of damage which their wandering or-
dinarily causes; third, the common usage of mankind to allow
them a wider liberty; fourth, their not being considered so
absolutely the owner’s chattels as to be the subjects of lar-
ceny.11®9 And in a Connecticut case it is said: “Although a
dog cannot by entering alone on the land of another and doing

** Ellis v. Loftus Iron Co., L. R. 10 C. P. 10. And see § 92, infra.

*° Brown v. Giles, 1 C. & P. 118. And see Sanders v. Teape, 51 L. T.
N. S. 263.

™T Millen v. Fandrye, Poph. 161. “*® Beckwith v. Shordike, 4 Burr. 2092.

And see Dimmock v. Allenby, 2 Marsh. 582; Buck v. Moore, 35 Hun
(N. Y.) 338; State v. Donohue, 49 N. J. L. 548.

™ Read v. Edwards, 17 C. B. N. S. 245, where a dog known to have a
propensity for chasing game was allowed by its master to be at large and
it entered the plaintiff's wood and did damage. The action was sustained.

278 ANIMALS TRESPASSING AND RUNNING AT LARGE,

mischief, subject his owner to the action of trespass quare
clausum as cattle and other animals which are naturally in-
clined to rove and winged animals that prey upon the crops
may do, yet if the owner trespass and while on the land his.
dog unbidden and against his will does mischief, that action
will lie for the injury.” 17°

The damage done to a fence by a poacher’s dog in pursuit
of game is not “malicious injury.” 1°! And it has been held
that the driving of a herd of sheep across unenclosed wild
lands, not permitting them to graze more than sheep usually
graze while being driven to another place, is not a malicious
trespass, where there is no evidence of malice.1*”

The subject of injuries by dogs is treated of in other parts
of this work.128

The owner of animals is liable for the direct results of their
trespass. Where rams trespassed on another’s land and got
his ewes with lamb, the owner of the rams is liable. ‘‘As it is
unnecessary to prove negligence, so it is unnecessary to prove
a scienter, because every one is presumed to be aware of the
natural instincts common to all animals.” 1*4 And damages
received for an injury to the close itself by a stallion breaking
in, do not bar a subsequent action for his having got a mare
with foal, that fact not being known at the time.12° Where
A.’s unpedigreed bull allowed unlawfully to run at large got
B.’s thoroughbred cow with calf, it was held that the damages
should not be restricted to the mere physical injury but were
the difference in the cow’s value for breeding purposes before
and after meeting the bull.1?° And where the defendant’s
buck lambs escaped and got the plaintiff's ewes with lamb out
of season, it was held that the measure of damages was the

™ Butler, J., in Woolf v. Chalker, 31 Conn. 121, 128.

™ Reg. v. Prestney, 3 Cox C. C. 505.

™ State v. Johnson (Wyo.), 54 Pac. Rep. 502.

™ See Title III, Ch. I, supra, and Title IV, Ch. III, infra.

™ Cargill v. Mervyn, 2 N. Z. Jur. N. S. 50, cited in 12 Ir. L. T, 376.

™ Hagan v. Casey, 30 Wis. 553. ™ Crawford wv. Williams, 48 Ia. 247.

NATURE AND RESULTS OF THE TRESPASS. 279

difference in value of the ewes for breeding purposes before
and after that time, and not the value of the lambs perishing
by. reason of being born in cold weather.1*7_ Damages cannot
be recovered for the loss of prospective mule colts where a
stallion trespassed in the pasture where mares were kept with
a jack, thereby keeping the jack away: such damages are too
speculative.1?8

The subject of liability for the communication of disease
is treated of elsewhere.!”°

In an action to recover damages for trespass in destroying
the plaintiff's fences and trampling on and destroying his
grain, the plaintiff cannot recover for injuries to grain by the
cattle of a third person for any period of time after the original
entry and trespass.1%°

Where the defendant’s cow escaped from his premises with-
out his negligence and entered the plaintiff’s barn through an
open door and the sleepers of the floor, being rotten, gave
way and the plaintiff, entering later, fell through the hole
made by the cow, it was held that his injuries were not the
proximate result of the cow’s trespass. 14

75, Animals Straying from the Highway.—The common-law
rule rendering the owner of animals liable for failure to re-
strain them does not apply with the same strictness to ani-
mals lawfully on a public highway. “There is prima facie
a public right to and a public advantage in the use of the high-
way by the public for the usual purposes of trade and traffic,
and if the owner of adjacent land were allowed to leave the
same unfenced, and entitled at the same time to make any
person driving animals along the highway responsible for
their straying on to such lands, the use of the highway would

* Stearns v. McGinty, 55 Hun (N. Y.) 101.

*§ Claunch v. Osborn (Tex. Civ. App.), 23 S. W. Rep. 937.
See §§ 88, 80, infra.

Berry v. San Francisco & N. P. R. Co., 50 Cal. 435.

* Hollenbeck zv. Johnson, 79 Hun (N. Y.) 499.

280 ANIMALS TRESPASSING AND RUNNING AT LARGE,

be restricted or rendered onerous by the sweeping liability
thus imposed. .. The principle must be, it would seem,
that the land-owner who does not choose to protect his land
from the road cannot impose a liability so burdensome to the
usual and legitimate use of the highway on the owner of ani-
mals.”” 182

Accordingly, where cattle properly driven upon the high-
way escape upon unfenced adjoining land, their owner is not
liable if he makes a reasonable effort to remove them and
prevent damage.1®? So, where the defendant was using cat-
tle in repairing a highway and they escaped from his control
without his fault and ran on the plaintiff’s land, the defendant
was held not liable in trespass.134 It is otherwise if they pass
into a second close. As was said in a Massachusetts case:
“The principle of the common law which requires that each
should keep his cattle on his own land is so far modified as to
hold the owner not liable for the trespass of his cattle which,
passing along the highway and being properly managed
therein, casually wander into the unfenced lots bounding
thereon, provided he removes them with reasonable prompt-
ness. But the cattle are not in such case lawfully upon such
lots. They are there only under such circumstances that their
trespass, being casual and such as could not have been pre-
vented by reasonable care, is held excusable and this is all.
That they should be rightfully and lawfully upon land, the au-
thority or consent of the owner of the close is necessary, and
even if he is without a remedy for the injury they may cause
him, the owner of the cattle does not acquire his rights as
against the owners of adjoining closes. If, after entering
upon his close, they proceed into another adjoining thereto,
they are there trespassers and an action may be maintained
for such trespass by the owner of the second close, even if his

1? 97 Sol. Jour. 81.

™ Hartford v. Brady, 114 Mass. 466; Erdman v. Gottshall, 9 Pa. Super.
Ct. 295.
™ Cool v. Crommet, 13 Me. 250.

ANIMALS STRAYING FROM THE HIGHWAY. 281

fence was insufficient and if he was also bound to fence as
against the owner of the first close. Being thus bound, he is
only bound to fence against cattle rightfully on the first
close.” 185 So in an English case it is said: “If cattle of one
man escape into the land of another, it is no excuse that the
fences were out of repair, if they were trespassers in the place
from whence they came. If it be a close, the owner of the
cattle must show an interest or a right to put them there. If
it be a way, he must show that he was lawfully using the way;
for the property is in the owner of the soil, subject to an ease-
ment for the benefit of the public.” It was therefore held
that a plea that cattle, bemmg in the highway, escaped was not
sufficient ; it must state that they escaped, passing in the high-
way.186 It is incumbent on the defendant in such cases to
show that he was using care and skill in driving his cattle.13"

Where animals are not lawfully on the highway, as if they
are merely straying there, their owner is responsible if they
trespass on adjoining unfenced lands.1°8 And as no man has
a right to pasture his animals in the highway, except in those
parts where he owns soil, he is liable if they break into ad-
joining lands, whether fenced or not.1°

In accordance with the above principles it was held in an
English case that where an ox, belonging to the defendant,
while being driven by his servants through the streets of a
country town, entered an ironmonger’s shop, adjoining the
street, through an open door and damaged goods—the de-
fendant was not liable, no negligence being proved on the

*6 McDonnell v. Pittsfield & N. A. R. Co., 115 Mass. 564. And see
Lord v. Wormwood, 29 Me. 282.

*° Dovaston v. Payne, 2 H. BI. 527. *7 Ricken v. Jones, 28 Cal. 618.

“8 Garrett Nuisances 164; Mills v. Stark, 4 N. H. 512.

And they are not lawfully “going at large,” as permitted by an or-
dinance, if they escape from the owner’s enclosure into the highway
against his will: Tonawanda R. Co. v. Munger, 5 Denio (N. Y.) 255.

9 Avery v. Maxwell, 4 N. H. 36; Stackpole v. Healy, 16 Mass. 33; Har-
rison v. Brown, 5 Wis. 27.

As to pasturing on the highway, see § 77, infra.

282 ANIMALS TRESPASSING AND RUNNING AT LARGE.

part of those in charge of the animal.’*® This decision gave
rise to a great deal of discussion. In an article in the Journal
of Jurisprudence it was said: “Mr. Justice Stephen observes:
‘... I can see no solid distinction between the case of an
animal straying into a field which is unfenced or into an open
shop in a town.’ The solid distinction between the cases is
just this, that it is usual to fence a field in order to keep people
out, and it is not usual to fence a shop because it would keep
people out, and the shopkeeper wants them to come in... .
That the owner of cattle is not liable for the trespass of his
cattle into an unfenced field adjacent to a highway is not, as
has been said by the learned judges in this case of Tillett v.
Ward, an exception to the general rule that the owner is lia-
ble if his cattle trespass; it is an exemplification of another
rule, that a person who neglects a precaution which is or-
dinarily employed and which can be employed without inter-
fering with the purpose for which the subjects are used, is re-
sponsible for the consequences of his own neglect. If the
field were properly fenced and cattle were to stray or break
into it off the highway, their owner would be liable, just as he.
is when they stray off his own land. This exception, as it
has been called, does not extend, or, to speak more correctly,
this other principle does not apply to the case of a shop ad-
jacent to a street. To fence a shop would be inconsistent
with the purpose for which it was intended, and to keep a
person on guard from one year’s end to the other to prevent
the inroad of an occasional ox, is utterly inconsistent with the
ordinary conduct of business.” 141

In an article replying to this criticism, it is said: ‘““No doubt
the shopkeeper does keep open his door for the reason speci-
fied. He incurs the risk of an animal’s straying in, because
it would be inconvenient for trade purposes to have his door
shut. It is, as asserted, usual to keep the door open; but
why does it necessarily follow that, if mischief results, he is

“Tillett 7. Ward, 10 Q. B. D. 17. ™ 27 Jour. Jurisp. (Sc.) 347.

ANIMALS STRAYING FROM THE HIGHWAY. 283

to be in a better position than the owner of a field? It seems
to us that the writer has here fallen into a fallacy. His idea
seems to be that, because it is a reasonable and usual act for
a shopkeeper to have his door open, therefore he is entitled
to indemnity from some one else equally innocent from the
consequences of so doing. It is a usual and reasonable thing
to run, in the business of life, the risk of remote and improb-
able contingencies for the sake of obvious and immediate ad-
vantage; but it does not follow, if the contingency happens,
that the consequences can be imposed on some one else. So
it is a usual thing, no doubt, to have a shop door open, but
it does not follow that a greater burthen is thereby to be cast
on a person using the highway for a lawful purpose than if
the shop had been a field. . . . The way our contemporary
seeks to put the case is that there is a general duty to keep
cattle from straying, but that, in the case of an unfenced field,
the owner of the field having neglected an ordinary and usual
precaution—viz., that of fencing—cannot complain of the
consequences of the animals straying, whereas, in the case of
the shop, the owner of the shop has not neglected any usual
precaution, because shop doors are usually left open. This is
plausible but in our opinion utterly fallacious. It mixes up
the question of absolute duty to prevent a thing and duty to
use all reasonable diligence to prevent it. It is clearly wrong
to say .. . that there is a general duty to keep cattle from
straying from the highway, as distinguished from a duty to
use due diligence to keep them from straying from the high-
way, and the onus is therefore cast on our contemporary of
showing why a shop differs from a field. The difference, he
says, is simply that a shopkeeper usually keeps his premises
open, but the question is whether, doing so for his own pur-
poses, he must not take upon himself the consequent risk.
Why is my lawful use of the highway to be made unsafe and
burdensome because of the particular use which the adjacent
owner chooses to make of his premises?” 742 Another argu-

29 Sol. Jour. 595.

284 ANIMALS TRESPASSING AND RUNNING AT LARGE.

ment that might be used against the decision is one based
on the habits of animals. The reason for the rule modifying
the liability of one driving his animals along the highway is
that, it being their habit, from uncertainty or desire of food,
to stray somewhat into the adjoining fields, his use of the
highway would otherwise be too burdensome and expensive.
As it is not their disposition, especially in the case of larger
animals, like oxen, to wander through the open doors of
houses or shops, the same reason would seem not to hold
there and such a case would come under the more general
principle that where one of two innocent parties has to suffer,
he whose act, though unwittingly, has caused the injury,
should be held responsible for it.

The owner of cattle straying on the metalled part of a high-
way is liable to a penalty therefor, though he had the right
of pasturage on the sides.1#8

Injuries committed by animals while actually in the high-
way are treated of elsewhere.1*4

76. General Rules Affecting Liability; Scienter ; Intention; Re-
covery.—As a general rule the person liable for the trespasses
of animals is he who is in control of them at the time whether
as owner, tenant, bailee, agistor, etc.14® It has been held in
Massachusetts and Maine that either the owner or the agistor
may be sued at the plaintiff’s election,!#* but this is contrary
to the majority of cases, though in New Hampshire it was
held that the owner of sheep which had been let to his son
was liable for damages from their straying, the court saying:

* Golding v. Stocking, L. R. 4 Q. B. 516. “4 See § 87, infra.

* Smith v. Jaques, 6 Conn. 530; Moulton v. Moore, 56 Vt. 700; Laflin
v. Svoboda, 37 Neb. 368; Ozburn v. Adams, 70 Ill. 291; Eck v. Hocker,
75 Ill. App. 641; Reddick v. Newburn, 76 Mo. 423; Kennett v. Durgin,
59 N. H. 560.

As to a tenant in possession after the expiration of his lease, see Parker
v. Thompson (Ky.), 33 S. W. Rep. 628; Toles v. Meddaugh, 106 Mich.
398; Morrison v. Mitchell, 4 Houst. (Del.) 324.

“ Sheridan v. Bean, 8 Metc. (Mass.) 284; Weymouth v. Gile, 72 Me. 446.

GENERAL RULES AFFECTING LIABILITY, ETC. 285

“By the ancient common law, agistment did not relieve the
owner from liability.” 147

Where, however, the owner has selected a reckless and ir-
responsible agistor he is liable in case;!#® and this has been
held to be the only form of action that can be brought against
the owner of agisted cattle.1#®

If the owner of a close takes oxen to keep for their owner
and has the custody of them, he must be considered the oc-
cupier of the close and bound to keep the cattle on the land,
but if the cattle owner keeps them there and has the custody
and control of them he is occupier quoad the oxen and is liable
for their trespasses.1°° And where the defendants agreed
that A. should work their farm, they having the right to go
upon it but not to interfere, and a ram on the premises at the
time was exchanged without the defendants’ knowledge for
one which trespassed on the plaintiff’s premises, it was held
that the defendants were not liable as owners of the ram, nor
as principals, A. being an “independent contractor.” 151

In a New York case a distinction was suggested between
the case of the lessee of a farm and an agistor, the court say-
ing of the Maine and Massachusetts decisions: “In each of
these cases the cattle were in the possession of an agistor.
An agistor is one who takes cattle for hire to pasture or care
for. We think there is a distinction between a person having
possession of cattle as an agistor and one who has possession
as the lessee of a farm and the cattle thereon. In the case
of an agistor, the possession is more in the nature of an agent
or bailee; the owner, remaining constructively in the posses-
sion, may at any time take them into his actual possession;
but in the case of a lessee, the owner’s interest in the cattle is
parted with for the term of the lease. Within that term he is

“7 Blaisdell v. Stone, 60 N. H. 507. “* Ward v. Brown, 64 III. 307.

“© Wales v. Ford, 3 Halst. (N. J.) 267; Rossell v. Cotton, 31 Pa. St. 525.

*” Tewksbury v. Bucklin, 7 N. H. 518; Kennett v. Durgin, 59 id. 560.
And see Duggan v. Hansen, 43 Neb. 277.

*\ Marsh v. Hand, 120 N. Y. 315, affirming 4o Hun 339.

286 ANIMALS TRESPASSING AND RUNNING AT LARGE.

not entitled to their products, cannot regain their possession
and they are not subject to his management or control.
Without therefore deciding the question as to whether or not
the owner would be liable in case the cattle had escaped from
the possession of an agistor and committed trespass, we are
of opinion that when the escape is from the possession of a
lessee of a farm and the cattle thereon, the owner is not liable
for the trespass.” 15? This distinction does not however ap-
pear to be borne out by the cases on the subject. The sub-
ject of the rights and liabilities of bailees and agistors is
treated of in another part of this work.1®?

A citizen of one county is not exempt from punishment for
the violation of the stock laws passed by another county.154

Where animals commit a trespass together each owner is
liable only for the trespass of his own animals, unless they
constitute a common herd, in which case an action may be
brought against all the owners jointly.°> There are many
statutory exceptions to this rule, however,!®* and the whole
question will be discussed more fully hereafter in treating of
injuries caused by vicious animals.157

In the case of a trespassing animal doing injury, it need
not be shown that the owner knew of its mischievous pro-
pensity as in other cases of vicious animals. The mere tres-
pass is the ground of the action and any additional damage
is an aggravation thereof, without any regard to scienter.15°

*? Atwater v. Lowe, 39 Hun (N. Y.) 150. *8 See Title V, Ch. I, infra.

** Hawthorn v. State (Ala.), 22 South. Rep. 894.

*° y Suth. Dams. (2d ed.) § 141; Ozburn v. Adams, 70 Ill. 291; Westgate
v. Carr, 43 id. 450; Jack v. Hudnall, 25 O. St. 255; Cogswell v. Murphy,
46 Ia. 44; Dooley v. 17,500 Head of Sheep (Cal.), 35 Pac. Rep. 1011;
Nierenberg v. Wood, 59 N. J. L. 112; Shultz v. Quinn, 2 Lack. Leg. N.
(Pa.) rat.

Where the ownership is joint the plaintiff may elect to sue all or only
some of the owners: Brady v. Ball, 14 Ind. 317.

™ See Kerr v. O'Connor, 63 Pa. St. 341; Rowe wv. Bird, 48 Vt. 578;
Remele 7. Donahue, 54 id. 555.

¥®7 See § 96, infra.

** Gresham v. Taylor, 51 Ala. 505; Decker v. Gammon, 44 Me. 322;

GENERAL RULES AFFECTING LIABILITY, ETC. 287

Thus, where a cow breaks down a fence and enters upon the
property of another, its owner is liable for personal injuries
sustained by one lawfully trying to prevent the trespass, al-
though there is no evidence that the cow had ever been
known to be vicious.15® And in a Massachusetts case, it was
held that the owner of a horse rendered nervous by the
driver’s treatment, hitched near a sidewalk and standing par-
tially on it, was liable for injuries to a passer-by on the side-
walk caused by a kick of the horse, without proof that the
animal was vicious to the owner’s knowledge. The court
said: ‘It used to be said in England, under the rule requiring
notice of the habits of an animal, that every dog was entitled
to one worry, but it is not universally true that every horse
is entitled to one kick. In England, if the horse is a tres-
passer and kicks another, the kick will enhance the damages,
without proof that the animal was vicious, and that the owner
knew it... . So in this commonwealth, going further, it
would seem, than the English law, a kick by a horse wrong-
fully at.large upon the highway, can be recovered for without
proof that it was vicious. . . . The same law naturally would
be applied to a horse upon a sidewalk where it ought not to
be .. .; and in this case there was evidence of the further
fact that the horse was in an exceptionally nervous condition

Angus v. Radin, 5 N. J. L. 815; Van Leuven v. Lyke, 1 Comst. (N. Y.)
515; Malone v. Knowlton, 15 N. Y. Suppt. 506; Morgan v. Hudnell, 52
O. St. 552; Chunot v. Larson, 43 Wis. 536; Mosier v. Beale, 43 Fed. Rep.
358; Lee v. Riley, 18 C. B. N. S. 722.

See the article in 19 Sol. Jour. 211, quoted in § 92, infra.

A child bitten in its father’s house by the dog of the defendant, who
did not know it to be vicious, cannot recover, as it would have to be for
trespass, and, not being the owner of the premises, it had no substantial
cause of action to which to annex the aggravation of the dog’s bite:
O’Connell v. Jarvis, 13 N. Y. App. Div. 3.

* Troth v. Wills, 8 Pa. Super Ct. 1. Wickham, J., dissented, on the
ground that the owner of an animal, not known by him to be vicious or
ferocious, was not responsible for injuries which were not the natural
consequences of the well-known disposition and habits of the class to
which the animal belonged.

288 ANIMALS TRESPASSING AND RUNNING AT LARGE.

in consequence of the driver’s treatment.” 1®° So, the owner
of a horse who permitted it to go unattended on a sidewalk
is liable, without proof of scienter, for injuries inflicted by its
biting a pedestrian.**!

An injury to a colt lawfully in the pasture of a third person
by the defendant’s dog, which he had unlawfully taken there,
makes the latter liable without regard to any knowledge of
the dog’s vicious disposition.’®* But it seems, as has been
said above, that in the case of a dog some assent, express or
implied, to the trespass must be shown.1®

In places where the common-law rule as to fencing out ani-
mals does not prevail, it is nevertheless a trespass to drive
animals on another’s land intentionally against his will or
without his consent, whether the lands are sufficiently fenced
or not.!® So, one who opens a division fence, though on
his own land, at a time and under circumstances that would
naturally cause his stock to go on the adjacent land and re-
main there, is as much a trespasser as if he drove the stock
and kept them there.’*° But where A. rented from B. a part
of a field and turned his horses on, and there was no fence be-
tween his part and the rest, and no stipulation in the lease, and
the crop had been gathered, it was held that he was not guilty
of knowingly causing his horses to go on B.’s land without
the latter’s consent.1%

“ Hardiman v. Wholley (Mass.), 52 N. E. Rep. 518. And see § 93,
infra.

* Stern v. Hoffman Brewing Co., 56 N. Y. Suppt. 188.

* Green v. Doyle, 21 Ill. App. 205.

So, where the injury was caused by an unattended horse: Barnes v.
Chapin, 4 Allen (Mass.) 444. Cf. Meegan v. McKay, 1 Okla. so.

™8 See § 74, supra.

™ Lazarus v. Phelps, 152 U. S. 81; Merritt v. Hill, 104 Cal. 184; Bedden
v. Clark, 76 Ill. 338; Harrison v. Adamson, 76 Ia. 337; Erbes v. Wehmayer,
69 id. 85; Powers v. Kindt, 13 Kan. 74; Delaney v. Errickson, 11 Neb. 533.

** Claunch v. Osborn (Tex. Civ. App.), 23 S. W. Rep. 937.

Coggins v. State, 12 Tex. App. 109.

On a prosecution under the code for knowingly causing cattle to go
within enclosed land of another without the owner’s consent, it is pertinent
to show that the defendant had no right, claim or interest in the pasture

GENERAL RULES AFFECTING LIABILITY, ETC. 289

If A. and B. occupy adjoining lands forming one field and
A. authorizes C. to put his cattle into the enclosure, repre-
senting that he is the sole owner, and. C. does this, the latter
is liable for the damage by his cattle going on B.’s land,
though he may have believed that A. had full authority to
give the license.**7 But the owner of land, who leases it with
the understanding that the lessee, if he cannot keep stock out,
may charge for the use of the land, cannot maintain trespass
against the owner of intruding cattle who arranges with the
lessee to use the land for the season for a certain amount; and
it is immaterial whether this amount belongs to the land-
owner or the tenant.1®

A statute prohibiting the driving of animals on Indian land
without the consent of the tribe, does not prohibit delivery
under contract of sale.1®°

Where the duty of fencing is on a railway company, the
defendant is not responsible to the company’s tenant on ad-
joining land for the trespass of his cattle.17° Where a fence
built by a railway company was sufficient against horses, oxen
and sheep but not against pigs, and the plaintiff, an employee
of the company, had the hand trolley on which he was return-
ing from work upset by pigs escaping through the fence from
the defendant’s land, it was held that the word “cattle” in
the statute included pigs and that the fence was therefore in-
sufficient, and that, even if the defendant were negligent, the
plaintiff could not recover, being identified with the company
through whose negligence the accident had occurred.*™

and that the prosecutor was the rightful possessor: Dickens v. State
(Tex. Cr.), 46 S. W. Rep: 246.

*T Daniels v. Aholtz, 81 Ill. 440.

18 Stufflebeem v. Hickman (Cal.), 53 Pac. Rep. 438, distinguishing
Rogers v. Duhart, 97 Cal. 500.

*° Morris v. Cohn, 55 Ark. 401.

*° Wiseman v. Booker, 3 C. P. D. 184.

See, in general, as to fencing by a railway company, Title VII, Ch. I,
infra.

™ Child v. Hearn, L. R. 9 Ex. 176.

19

290 ANIMALS TRESPASSING AND RUNNING AT LARGE.

A lessee of land whose crops are injured by stock escaping
thereon through a defective fence along a railway track is en-
titled to the beneficial provision of a statute requiring the
company to fence its right of way.‘"? So, the bailee of an
animal may recover for an injury done to it by a trespassing
animal.178 And a tenant in common whose property has
been injured by a trespassing animal may bring an action
without joining his co-tenants.‘™* But the owner of prop-
erty is bound to take ordinary care to prevent the injury.’7®

One having the right to the use of a dam on another’s land
for the purpose of conveying water to his mill and to enter
to repair and protect the dam, cannot recover for damages
caused thereto by the cattle of the land-owner who may use
the water for his stock, it not appearing that the dam might
not have been protected by the plaintiff or so constructed as
not to be liable to injury by cattle.17¢

77. When Animals are “Running at Large’; Pasturing in the
Highway. Where the owners or keepers of animals are made
by statute liable for the consequences of permitting them to
“run at large,” the meaning of this expression has been a
frequent subject of consideration in the courts.‘ Ina Ver-
mont case it is said: “Running at large is used in the statute
in the sense of strolling without restraint or confinement; as
wandering, roving or rambling at will, unrestrained. Per-
haps no precise abstract rule under the statute can be laid
down, applicable to every case, as to the nature, character and
amount of restraint necessary to be exercised over a domestic
animal when suffered, as in this case, to be on the highway
incident to its use. But the restraint need not be entirely
physical; it may depend upon the training, habits and in-

*? Langkop v. Mo. Pac. R. Co., 55 Mo. App. 611.

*8 Mason v. Morgan, 24 U. C. Q. B. 328.

** Morgan v. Hudnell, 52 O. St. 552. *6 Little v. McGuire, 38 Ia. 560.

Keller v. Fink (Cal.), 37 Pac. Rep. 411.

™ See, also, on the subject of animals running at large, § 134, infra, and
Title III, Ch. I, supra.

WHEN ANIMALS ARE “RUNNING AT LARGE.” 291

stincts of the animal in the particular case; and the suffi-
ciency of the restraint is to be determined more from its effect
upon , and controlling and restraining influence over, the ani-
mal than from the nature or kind. Suppose a span of horses
to be so accustomed to be kept and driven together that,
while the owner is riding one, the other will voluntarily follow
as closely almost as if led by a halter; the owner, while taking
them along the highway in this manner could not be said to
suffer the horse so voluntarily following its mate, to run at
large in violation of the statute. The same may be said of
a young sucking colt upon the highway, with no restraint
other than instinct to follow its dam, which is being driven
in a carriage on the highway.” 178

In this case, the defendant used to ride a horse from his
house along the highway for about a mile and a half, and then
fasten the reins to a surcingle around the horse so that it could
not feed, and leave it to go home alone while he went- on
further. The animal was a kind one and would go directly
toward home until it met the defendant’s son, a boy ten years
old, who was waiting to take care of it. It was held that if
the defendant or his son kept all the time so near the horse
that, owing to its training, it would not wander about the
highway but go directly home, while it was on its way back
it was not “running at large” in the highway, so as to expose
the defendant to a penalty.

And in Maine where the phrase in the statute was “at large
without a keeper,” the court said: “The phrase . . . must
have a reasonable interpretation applicable to the subject-
matter. ‘A keeper,’ says Worcester, ‘is one who has some-
thing in charge.’ To be ‘without a keeper’ in the purview of
the statute is to be without the charge of any one having the
right of control, or ‘not under the care of a keeper,’ as the
statute of Massachusetts expresses it. Such charge or care

“8 Russell v. Cone, 46 Vt. 600.
That a colt following its dam is not “running at large,” see Elliott v.
Kitchens, 111 Ala. 546.

292 ANIMALS TRESPASSING AND RUNNING AT LARGE.

does not, in all cases, imply direct physical power to control
the actions of the animals; in some cases moral means would
be sufficient for this purpose, such as the proximity of the
owner to the animals, the human voice, gestures and like
means. Whether in a given case physical or moral power
over the animals is necessary depends upon their nature, age,
character, habits, discipline and business or use at the time,
and whatever other circumstances have a bearing upon the
subject. What would constitute a person a keeper of one
animal would not make him a keeper of another under differ-
ent circumstances. It is sufficient to constitute the owner
of animals their keeper, in a given case, if it appears that he
possessed the means upon which a person in the exercise of
ordinary care, judgment and intelligence upon those matters
would rely to control their actions. Whether or not animals
are thus in charge is a question of fact to be determined by the
jury under proper directions.” 17°

“At large” has been held to mean “without restraint or
confinement,” 18° and “confined” and “prohibited from run-
ning at large’? mean substantially the same thing.1®! And in
an English periodical it is said: “The ordinary meaning of
the words ‘at large’ is taken to be ‘without restraint’ or ‘un-
confined.’ A dog loose upon the premises of his owner is,
to a certain extent, confined, at any rate so long as he remains
within the premises; but if he wanders away and enters upon
premises not his master’s, it is clear that he must have been
at large in some sense of the word. To say that a dog must
be not only off the premises of his master but also not upon
those of any one else, to make his owner punishable, is to
decide that the words ‘at large’ are limited to mean ‘in the

*” Jennings v. Wayne, 63 Me. 468, 470.

* Goener v. Woll, 26 Minn. 154. “It follows that if a ram is suffered
to go about without restraint or confinement, even though it be upon
land belonging to his owner, or of which such owner has a rightful use,
he runs at large within the meaning of the statute:’’ Ibid.

St. Louis & S. F. R. Co. v. Mossman, 30 Kan. 336.

WHEN ANIMALS ARE “RUNNING AT LARGE.” 293

streets’ or ‘in a public place,’ and from such a limitation we
differ in toto celo. Ifa dog is once lost sight of, and is away
from the absolute and immediate control of his owner, he is
at large to all intents and purposes; if he be within his master’s
premises, his being at large may be questioned, but anywhere
away from that spot his master cannot control him and he
must be muzzled in compliance with the law.” 182 So in a
Nebraska statute authorizing the killing of dogs, “running at
large” means “running on the public road or off from the
owner’s premises without any person claiming an interest in
the dog being near at hand.” 183 A dog is “going at large”
in a town if he is loose and following the person in charge of
him through the streets at such a distance that control can-
not be exercised over him which will prevent his doing mis-
chief.18* “A ferocious and over-grown dog, known to the
owner or keeper to be accustomed to bite mankind, is to be
regarded as at large, within the common import of those
terms, in a plea in bar, when he is so far free from restraint
as to be liable to do mischief to man or beast; and this such
a dog is always liable to do, when not physically restrained.
.. . His being in the presence of his keeper affords no safe
assurance that his known propensities will not prevail over
the restraints of authority.” 18° A hound, near a fellow-
huntsman of his master but out of sight and hearing of the
latter, has been held not to be “running at large.” 18°

In Canada, where horses were startled by the barking of
dogs running at large on the highway and jerked a rope, in-
juring the plaintiff’s hands, the owner of the dogs was held

182

9 Sol. Jour. 794.

Dogs are not “under control” unless the control is effective: Hay v.
Bennett, 3 Times L. Rep. 24.

*8 Nehr v. State, 35 Neb. 638.

** Com. v. Dow, 10 Metce. (Mass.) 382.

A dog unmuzzled and unaccompanied by its owner is “running at large”
though it had just escaped and its master is: pursuing it: Julienne v. Jack-
son, 69 Miss. 34.

** Brown v. Carpenter, 26 Vt. 638. © Wright v. Clark, 50 Vt. 130.

294 ANIMALS TRESPASSING AND RUNNING AT LARGE,

liable, the court saying: “While the French and our law
do not contain the special prohibition of the Roman law
[i. e., against dogs being on the streets at all], I have to hold
that with us a domestic animal like the dog brings his master
no special privileges of exemption and that he who owns one
lets him stray or even takes him upon a public highway at his
own peril and his own risk.” 187

Sheep grazing upon an open common with the consent of
the land-owner and herded by a boy in charge are not “run-
ning at large” so as to be liable to be impounded.'** Nor
are cattle driven along a road in the charge of a herder, which
in passing casually eat the grass growing on the roadside,
even though the herder fall asleep while tending them.1®
“When cattle are in the public highway in charge of a person
directing or controlling their movements, they are not run-
ning at large within the meaning of the statute.”19° And
the mere fact of an animal being found unattended in the
highway cannot be regarded as making the owner liable for
the consequences. ‘In order to constitute the being there of
such animals wrongful on the part of the owner, it should
appear that the circumstances and occasion or that the char-
acter and habits of the animal were such as to show careless-
ness on the part of such owner in reference to the convenience
and safety of travellers on such highway.” 1%! But though

*T Vital v. Tétrault, Montr. L. Rep., 4 S. C. 204.

A statement in a deposition that dogs were ‘“‘at large on the defendant’s
premises” is not sufficient evidence to show that they were running at
large or permitted to run at large: Reg. v. Crandall, 27 Ont. 63.

** Tbbottson v. Henry, 8 Ont. 625. And see Spect v. Arnold, 52 Cal. 455.

*° Thompson wv. Corpstein, 52 Cal. 653.

™ Bertwhistle v. Goodrich, 53 Mich. 457. And see Beeson wv. Tice, 17
Ind. App. 78.

Nor are they “turned loose”: Sherborn v. Wells, 3 B. & S. 784. But
they may be “found lying about any highway” so as to subject their owner
to a penalty: Lawrence v. King, L. R. 3 Q. B. 345.

That there should be a keeper, see Parker v. Jones, 1 Allen (Mass.) 270.

™ Holden v. Shattuck, 34 Vt. 336.

See Shipley v7. Colclough, 81 Mich. 624, where it is held that one who

WHEN ANIMALS ARE “RUNNING AT LARGE.” 295.

scienter is evidence of negligence, it need not otherwise be
shown in such cases, as has already been said.!%

Cattle which escape or are released from an enclosure
where the owner has put them, and are immediately searched
for by him are not “running at large.’’19? Where such es-
cape is without any fault of the owner, he is not liable.19* It
is otherwise where he is negligent. “If the swine are at large
through the negligence of the owner or his servants, or are
permitted to continue at large after notice of their escape
from his enclosure, it will be suffering them to run at large,
within the true intent and meaning of the statute. But if the
owner exercises ordinary care and diligence in restraining
them, and they are at large against his will and without any
fault in him, they are not subject to be impounded.” 195

Cattle ranging in pastures containing about 400,000 acres
may be levied upon as “running at large,” although the en-
trances are guarded.1®* “Stock running at large are animals

turns his cattle loose in the highway without a keeper, in violation of a
statute, assumes all the risks of such action.

The owner of hogs letting them run in the highway without a keeper is-
responsible for an injury to the plaintiff's daughter from the fright of her
horse thereat: Jewett v. Gage, 55 Me. 538.

™ See § 76, supra. See also Baldwin v. Ensign, 49 Conn. 113; Baird v.
Vaughn, 3 Tenn. Cas. 316; Goodman v. Gay, 15 Pa. St. 188.

*8 McBride v. Hicklin, 124 Ind. 499; Stephenson v. Ferguson, 4 Ind.
App. 230; Wolf v. Nicholson, 1 id. 222; Kinder v. Gillespie, 63 Ill. 88.

™ Rutter v. Henry, 46 O. St. 272; Rudi v. Lang, 1 O. C. D. 482; Mont-
gomery v. Breed, 34 Wis. 649—where the penalty was imposed on one
who “permits or suffers” his animal to run at large; Underwood v. Hen-
derson, 1 Fraser (Sc. Ct. Justic.) 9.

But an animal is “running at large” in the sense of an impounding stat-
ute, though it has escaped from an enclosure without the owner’s fault:
Paris v. Hale (Tex. Civ. App.), 35 S. W. Rep. 333. But see McSloy v.
Smith, 26 Ont. 508; Adams v. Nichols, infra.

*° Adams v. Nichols, 1 Aik. (Vt.) 316, 319. And see Gilbert v. Stephens.
(Okla.), 55 Pac. Rep. 1070.

A bull left by agreement on premises to which it had escaped was held
to be “running at large in the night-time,” so as to make the owner liable:
for an injury done by it: Duggan v. Hansen, 43 Neb. 277.

*6 Gunter v. Cobb, 82 Tex. 508.

296 ANIMALS TRESPASSING AND RUNNING AT LARGE.

that roam and feed at will and are not under the immediate
direction and control of any one. They may be in an en-
closure which may restrain the limits in which they shall
wander and feed, or they may be on an unfenced range, rela-
tively without limit, where they may roam and feed at will;
but in either case they are not subject to the direction and
control of any one.” 197

Where the owner of a farm and a bull by arrangement with
the occupant of an adjoining farm allows stock to run across
to the other farm to graze and both farms are enclosed, such
bull is not “running at large.’ 198 So, where A. consents that
B. shall turn his swine into his own fields which are not
fenced from A.’s, the latter cannot take them up as “running
at large.” 199 But where animals are turned loose on prem-
ises not enclosed so as to confine ordinary cattle, the fence
having openings through which they pass to the land of an-
other, they are running at large.?°°

A horse which becomes frightened and escapes from its
owner is not “running at large.” 2° In Oklahoma, it has
been held that the statutes providing for damage done on cul-
tivated lands by stock running at large do not apply to cases
of injury by one domestic animal to another.2°? Buta statute
prohibiting the owner of an animal from letting it run at large
imposes only the duty of using reasonable care to prevent
it.208

With regard to pasturing animals in the highway, the rule
seems to be that this is not one of the uses of the highway to
which the public is entitled, but that the owner of land ad-
joining a highway, owning, as is usually the case, the soil to
the centre thereof, may let his cattle graze there under the

“ Keeney v. Oreg. R. & Nav. Co., 19 Oreg. 201.

“Mo. Pac. R. Co. v. Shumaker, 46 Kan. 7609.

™ Martin v. Reed, 10 Pa. Co. Ct. 614.

*” Osborne v. Kimball, 41 Kan. 187.

*™ Presnall v. Raley (Tex. Civ. App.), 27 S. W. Rep. 200.
*” Meegan v. McKay, 1 Okla. 50.

* Marietta & Cinc. R. Co. v. Stephenson, 24 O. St. 48.

WHEN ANIMALS ARE “RUNNING AT LARGE.” 297

charge of a keeper.*°* And it is extremely doubtful whether
such a right can be conferred on any other by statute. “It
is sometimes thought that a vote of the town authorizing
cattle to run at large might make such a use of the highway
[t. e., for pasture] legal; but as the grass and herbage in the
highway ordinarily belong to the abutter, at least when, as is
usually the case, he owns the fee to the centre of the road,
and although he ‘may pasture his own cows there under the
charge ofa keeper, . . . it is difficult to see what right a town
has to authorize other persons to take and carry away such
owner’s grass, either by cutting or grazing. That would be
taking private property for private uses, and without even the
show of making compensation therefor. Probably the only
effect of such a municipal vote is to shield the cattle owner
from criminal or penal liability for violating a town by-law or
ordinance, but not to protect him from a civil suit by the land-
owner injured.” 2%

A city ordinance making it unlawful for the owner of cer-
tain domestic animals to permit them to run at large or graze
is violated by permitting them to graze, though without pre-
conceived intention. “Nor would a mere incidental and
trifling act of grazing be sufficient as if a horse were to snatch
a mouthful of grass when led along the street. There must
be something substantial and it must be permitted, but it is

* Parker v. Jones, 1 Allen (Mass.) 270; Robinson v. Flint & P. M. R.
Co., 79 Mich. 323, 327. And see Holladay v. Marsh, 3 Wend. (N. Y.)
142; Holden v. Shattuck, 34 Vt. 336.

*5 22 Am. L. Reg. (N. S.) 240—note by E. H. Bennett.

And see Stackpole v. Healy, 16 Mass. 33; Tonawanda R. Co. v. Mun-
ger, 5 Denio (N. Y.) 255, cited in § 78, infra.

But see Griffin v. Martin, 7 Barb. (N. Y.) 207; Hardenburgh v. Lock-
wood, 25 id. 9, where a statute authorizing the electors of each town to
determine the time and manner in which animals might run at large on
the highway was held constitutional. In the former case it is said: “It
cannot with truth be said that a by-law like the one in question takes the
property of one man and gives it to another, or even to the public, without
compensation. The owner of the soil is not deprived of the pasturage
any more than he is of the way. He can enjoy both in common with his
neighbors.”

298 ANIMALS TRESPASSING AND RUNNING AT LARGE.

not necessary to show design or intention; permission is

enough.” 2°

78, Statutes and Ordinances Regulating Running at Large.—
An act or ordinance prohibiting the running at large of ani-
mals within certain districts is not unconstitutional.2°7 A
city may by virtue of its police power impose a fine on the
owners of animals found astray,?°* direct the seizure of such
animals,2°? prohibit the going of animals on the sidewalk,?!°
require that dogs be registered and collared to prevent their
running at large,4! etc. Regulations with regard to im-
pounding will be treated of hereafter.?!?

A charter authorizing a city council to restrain animals
from running at large was held not to authorize an ordinance
providing a penalty for trespasses committed by herdsmen in
herding cattle on private lands.?18

Where power was granted to enact by-laws and ordinances
necessary for the well-regulation, interest, health, etc., of the
town, not inconsistent with the laws of the State, and to abate
nuisances, this was held not to authorize the enactment of a
by-law restraining animals from running at large where that
was in contravention of the State laws.244 But where the
legislature confers on the town the power to declare what

**° Petersburg v. Whitnack, 48 Ill. App. 663.

*” Spigener v. Rives, 104 Ala. 437; Chattanooga v. Norman, 92 Tenn.
73; Haigh v. Bell, 41 W. Va. 19; Chamberlain v. Litchfield, 56 Ill. App.
652.

A plea that the ordinance was not being enforced at the time of the
alleged violation, was held bad in Kitchens v. Elliott, 114 Ala. 290.

*§ Third Munic. of N. O. v. Blance, 1 La. Ann. 385.

*° Wilson v. Beyers, 5 Wash. 303.

*° Com. v. Curtis, 9 Allen (Mass.) 266.

™ State v. Topeka, 36 Kan. 76; Independence v. Trouvalle, 15 id. 70.

™ See Title IV, Ch. II, infra.

“8 State v. Johnson, 41 Minn. 111.

A statute providing for the restraint of animals running at large was
held not to give an exclusive remedy in Bowles v. Abrahams, 65 Mo.
App. Io.

** Collins v. Hatch, 18 O. 523.

STATUTES AND ORDINANCES. 299

shall be nuisances and to provide for their abatement, an or-
dinance declaring that swine running at large are nuisances
to be abated, is valid, though by the State law the right of
common may exist. Such a right is “within legislative con-
trol. It may be abridged or destroyed, wherever and when-
ever the law-making power may think the public good may
require it.” 245 And the power to restrain animals has been
held to be included under a power “to have and exercise con-
trol over the streets” and “to cause nuisances to be removed
at the expense of the persons by whom they were occa-
sioned,” 746 and under a power to “exercise all rights, powers
and privileges of a corporation for purposes of municipal
regulation and control; to impose adequate penalties on per-
sons neglecting them, etc., and to pass rules not inconsistent
with the United States or State Constitution and laws.” 217

An ordinance prohibiting the running at large of animals
acts upon non-residents as well as residents.748 But the legis-
lature, after having empowered municipal authorities to regu-
late this matter, may by an amendatory statute curtail such
powers by enacting that they are not conferred over the prop-
erty of non-residents.”1°

A by-law enacting that certain animals shall not run at
large, does not impliedly allow others not named to do so.??°
But where it was made unlawful for animals of “species bull”
to run at large, this was held to embrace bulls of all kinds and
descriptions without reference to size, age or quality, but not
to extend to cows, heifers or steers.??_ A statute prohibiting

™> Roberts v. Ogle, 30 Ill. 459. And see Hagerstown v. Witmer, 86
Md. 203.

7° Waco v. Powell, 32 Tex. 258.

"7 McKee v. McKee, 8 B. Mon. (Ky.) 433. And see Com. v. Bean,
14 Gray (Mass.) 52.

"8 Whitfield v. Longest, 6 Ired. L. (N. C.) 268.

7° Smith v. Oatts, 92 Ga. 602.

© Crowe v. Steeper, 46 U. C. Q. B. 87; Jack v. Ontario & Simcoe R.
Co., 14 id. 328.

* Oil v. Rowley, 69 Ill. 460.

300 ANIMALS TRESPASSING AND RUNNING AT LARGE.

the allowing of “stallions” to run at large does not apply to
colts until they are of such an age as to be troublesome to
mares or dangerous to be at large.?#”

The provision of a code authorizing the restraining of sheep
and swine from running at large by a majority vote of the
people of the several counties, is not unconstitutional on the
ground that ‘all laws of a general nature shall have a uniform
operation,” nor for the reason that it depends for validity
upon the vote of the people, not on the expressed will of the
legislature.2#* And the herd law restraining live stock from
running at large but allowing the electors in a district to per-
mit this, was held to be not within the prohibition of the
United States Statutes at Large against Territorial legisla-
tures passing local or special laws regulating township and
county affairs, as the herd law merely permitted districts to
regulate their own affairs.22* But an act making it a misde-
meanor wilfully to permit stock to run at large in local option
territory was held invalid as applied to counties which had
previously adopted the local option stock law—it providing
only a civil remedy for its violation.2”°

Voting upon permitting animals to run at large in a county
is voting upon a public measure within the meaning of an
election law prescribing the form of ballot.226 Mere irregu-
larities in conducting such an election will not render it in-
valid.?27

Although a city by its charter has power to restrain animals
from running at large, a complainant alleging special
damage by reason of council’s neglect to pass any ordinance
on the subject, does not show a cause of action.228 Nor

™ Aylesworth v. Chic., R. I. & P. R. Co., 30 Ia. 459.

8 Dalby v. Wolf, 14 Ia. 228. ** Johnson v. Mocabee, 1 Okla. 204.-

*° McElroy v. State (Tex. Cr.), 47 S. W. Rep. 359.

“Union Co. v. Ussery, 147 Ill. 204.

“T Hannah v. Shepherd (Tex. Civ. App.), 25 S. W. Rep. 137.

*8 Kelley v. Milwaukee, 18 Wis. 86. And this holds where such an
ordinance was passed, but afterwards repealed or suspended: Rivers v.
Augusta, 65 Ga. 376.

STATUTES AND ORDINANCES. 301

is a city passing such an ordinance responsible for its viola-
tion.??°

It was held in Massachusetts that the public having no right
in a highway but that of passing, no permission can be given
to them to pasture their animals there.2° In New York, a
provision permitting beasts to run at large upon public high-
ways was said to be unconstitutional, the court remarking:
“Cattle at large in the highway will not only trample down,
but also crop and eat the grass and herbage there growing;
and if the legislature have power to authorize their running
at large, the grazing cannot be wrongful. What would this
be but taking the private property of the owner of the land
used as a highway, and transferring it to the owner of the
cattle? In my judgment the legislature have no such power,
whether compensation be made or not, but certainly in no
case unless compensation is made. On this short ground,
I think the town regulation assuming to authorize cattle to
‘run at large’ was wholly void.” 784. But the Supreme Court
dissented from this dictum in two later cases.?3?

Where the owner of the animals also owns the soil on
which they graze at the side of the highway, the rule is dif-
ferent, as has already been stated.?3%

The subject of summary proceedings is discussed in § 80,
infra.

79. Distress—At the common law if an animal trespasses
on a man’s land, not being at the time under anyone’s charge,

“9 Levy uv. N. Y. City, 1 Sandf. (N. Y.) 465. See Cochrane v. Frost-
burg, 81 Md. 54, where it is held that it is the duty of the municipal au-
thorities to abate the nuisance of animals running at large on the streets
so as to be a source of discomfort and danger to the inhabitants.

*° Stackpole v. Healy, 16 Mass. 33.

* Beardsley, C. J., in Tonawanda R. Co. v. Munger, 5 Denio (N. Y.)
255. And see the opinion in Holladay v. Marsh, 3 Wend. (N. Y.) 142.

“ Griffin v. Martin, 7 Barb. (N. Y.) 2097; Hardenburgh v. Lockwood,
25 id. g—cited in § 77, supra.

88 See § 77, supra.

302 ANIMALS TRESPASSING AND RUNNING AT LARGE,

it might be distrained damage feasant.*** This right has been
held not to exist in Ohio,?#5 Indiana,?3* or Missouri.23* In
Maine it exists wherever no pound-keeper has been appointed
by statute.?*8

The remedy exists only with reference to present or im-
mediate damage. The owner of a freehold cannot seize an
animal which has done damage but has ceased doing so, when
it is not necessary to detain it to prevent further damage.?**
Therefore, the animal cannot be distrained if it has escaped
from the land before capture,?4° or has been driven out and
has afterwards returned.241 And where the plaintiff dis-
trained the defendarit’s cattle and went to tell the latter, and
the cattle escaped into the defendant’s land where the plain-
tiff’s son allowed them to remain for half an hour, and on
the plaintiff’s return he drove them back and the defendant
took them thence, the last act was held not to be a rescue, as
leaving the cattle in the defendant’s ground was an abandon-
ment of the distress.742 A plea of recaption upon a rescue
must aver that the recaption was on fresh pursuit.?4*

Where cattle trespass upon unfenced land immediately ad-
joining a highway, the owner of the land may distrain them
after a reasonable time has elapsed to remove them in. What
is a reasonable time is for the jury to determine under all the
circumstances.744 “The qualification of reasonable time to

*4 Garrett Nuisances 164.

See also the cases on liens in § 80, infra.

This right is not a matter of course: it depends upon circumstances:
Ruter v. Foy, 46 Ia. 132. As to the California statutes, see Wigmore v.
Buell, 122 Cal. 144.

** Northcott v. Smith, 4 O. Circ. Ct. 565.

* Little v. Swafford, 14 Ind. App. 7.

*" Crocker v. Mann, 3 Mo. 472. *8 Mosher v. Jewett, 63 Me. 84.

* Wormer v. Biggs, 2 C. & K. 31.

“Co. Litt. 161 a; Clement v. Milner, 3 Esp. 95; Warring v. Cripps,
23 Wis. 460; Holden v. Torrey, 31 Vt. 690.

*“ Graham v. Spettigue, 12 Ont. App. 261. And see Vaspor v. Edwards,
12 Mod. 658.

*“ Knowles v. Blake, 5 Bing. 499. *8 Rich v. Woolley, 7 Bing. 651.

*““ Goodwyn v. Cheveley, 28 L. J. Ex. 208; 4 H. & N. 631.

DISTRESS. 303

recover the cattle does not apply except in the case of a high-
way being the place from which the cattle have deviated.” 245

But where a horse escaped from a stable to the defendant’s
pasture-land and was pursued by the plaintiff’s son-in-law,
who was leading it out of the field when it was distrained, the
distress was held to be illegal.?*¢

In Illinois, where the owner of unfenced lands cannot re-
cover for the trespasses of cattle, he cannot distrain them
for the same damages.?47 It is otherwise where there is no
such requirement as to fencing, but he is limited to the re-
covery of the actual damages and reasonable charges for keep-
ing and feeding.?*®

Taking an animal and confining it in a barn is a sufficient
distress.24® And it seems that if one finds stray cattle damage
feasant on his land in the afternoon, he may, if necessary to
protect his crops, confine them over night and turn them into
the highway in the morning, but not drive them in the high-
way in a direction opposite to that of the owner’s house.®°
Where a hog was taken damage feasant and kept sixteen
months with the plaintiff’s knowledge and the parties agreed
to arbitrate, but did not do so, it was held, in replevin, that the
defendant was not obliged to give notice and that the holding
was not unreasonable.”*! Where the owner has been legally
notified, or has waived the formality of notice, trover will
not lie.25* The distrainor must, however, comply with the
statute and where he was not able to do so on account of its

“17 Ir. L. T. 533. 6 McIntyre v. Lockridge, 28 U. C. Q. B. 204.

“7 Oil v. Rowley, 69 Ill. 469. As to an owner distraining on a tenant
unlawfully holding over, see Wright v. Mahoney, 61 Il. App. 125.

48 McPherson v. James, 69 Ill. App. 337.

*© Hamlin v. Mack, 33 Mich. 103.

© Tobin v. Deal, 60 Wis. 87.

See, as to turning or driving out trespassing animals, § 45, supra.

* Shroaf v. Allen, 12 Neb. 109.

*® Norton v. Rockey, 46 Mich. 460. And see, as to waiver of notice,
Parks v. Kerstetter, 113 id. 520.

As to statutory notice of the assessment of damages, see Healy v.
Jordan, 103 Ia. 735.

304 ANIMALS TRESPASSING AND RUNNING AT LARGE.

failure to provide a necessary officer, the distress was held to
be unlawful.252 But one was held not to be estopped from
claiming that he sought the statutory remedy by taking un-
necessary steps under another statute not applicable to the
assertion of his rights.2®* Where the statute limits the right
of distress to damage “within the enclosure of the distrainor,”
the owner in fee of land included in the highway has no right
to distrain cattle grazing upon the highway, and such cattle
were not distrainable at common law, at least since the statute
of Marlborough.?5> But where a servant distrains unlaw-
fully by driving cattle from the highway into his master’s
close, he does not make the latter responsible. “A master
is liable where his servant causes injury by doing a lawful act
negligently, but not where he wilfully does an illegal one.” ?°6
A horse in a street, damaging a barnyard fence while fighting
a horse inside, may be distrained by the owner of the yard
as “doing damage within the enclosure.” 2°?

The damage in respect of which trespassing animals may
be distrained damage feasant is not confined to damage to the
freehold but includes injuries to other animals.255 Each
beast can be distrained only for its own damage, not for the
general damage, or any part of it done by the rest.2°® One
into whose field cattle have strayed through a defect in a
fence which he was bound to repair cannot distrain them
damage feasant in another field into which they had gone by

*? Armbruster v. Wilson, 43 Hun (N. Y.) 261, where the statutory
remedy was held to be additional to the common-law one.

So the appraisement must be in strict compliance with law: Warring
v. Cripps, 23 Wis. 460. Where the distrainor purchases and claims title
under a sale which is void for want of the required statutory notice to the
owner, he loses his statutory lien: Chase v. Putnam, 117 Cal. 364.

* Blair v. Small, 55 Mich. 126.

*° Taylor v. Welbey, 36 Wis. 42. *6 Tyons v. Martin, 8 A. & E. 512.

*" Pettit v. May, 34 Wis. 666.

** Boden v. Roscoe, [1894] 1 Q. B. 608, on the authority of Rolle’s
Abr., where it is said that greyhounds or ferrets chasing and killing rab-
bits may be distrained damage feasant.

*° Vaspor v. Edwards, 12 Mod. 658.

DISTRESS. 305

breaking through a hedge which he had kept in good repair,
his neglect being the original cause of the injury.2°° And,
in general, where trespassing cattle are distrained on land
not enclosed by a lawful fence, the owner may recover pos-
session of them without paying damages ;?*! and he may enter
the other’s land for the purpose of driving them back without
incurring a liability for trespass.?6* Replevin is the ordinary
remedy in case of a wrongful distress.?6

One commoner cannot distrain the cattle of another com-
moner, as they come upon the commonable land by color of
right.2°* So, where two persons have concurrent possession
of land for the purpose that each may take profits of a special
nature not inconsistent with the rights of the other, as if one
has the exclusive right to dig stone, the other to pasture—one
may not distrain the other’s cattle damage feasant.2°° Where
two had the right of common over a whole field but agreed
not to exercise such right, one cannot distrain the other’s
cattle.76°

A tenant holding over after the expiration of his term can-
not distrain the landlord’s cattle put upon the premises by
way of taking possession.?°7

Cattle in actual use of the party cannot be distrained
damage feasant.268 Nor can a horse with a rider on him,?®
though the contrary has been held where he was led by a
person at the time.?”° Where it was averred that a dog when
taken was in the actual possession of the plaintiff's son and

*° Singleton v. Williamson, 7 H. & N. 410.

* Blizzard v. Walker, 32 Ind. 437. *2 Camp wv. Flaherty, 28 Ia. 520.

“87 Chit. Pl. 164.

* Cane v. Scott, L. R. 9 Q. B. 269, citing Hall v. Harding, 4 Burr. 2426,
and holding the principle to be applicable to common pur cause de
vicinage as well as to common appurtenant.

°° Churchill v. Evans, 1 Taunt. 529.

6 Whiteman v. King, 2 H. BI. 4. 27 Taunton v. Costar, 7 Term 431.

* Field v. Adames, 12 A. & E. 649.

*° Storey v. Robinson, 6 Term 138.

© Wagstaff v. Clack, Cambridge Sum. Assizes, 1826, Ms.

20

306 ANIMALS TRESPASSING AND RUNNING AT LARGE.

servant and under the personal care of and being used by the
servant, this was held insufficient, as applied to a dog, to show
such user as would exempt it from seizure damage feasant.2™

The word “stock” in a statute regulating the right of dis-
tress was held to include swine. “The word ‘stock,’ in agri-
culture, means domestic animals collected, raised or used on
a farm.” 27?

A distress damage feasant cannot be made after a tender
of amends before the taking, nor can it be detained if a tender
is made after the taking and before the impounding. But
‘after the impounding the tender comes too late to make either
the taking or detainer unlawful.27? The subject of impound-
ing is reserved for another chapter.?"*

The injured person may make his election as to whether he
will distrain or sue in trespass, but when he has done so he
has no other remedy unless that be ineffectual by act of God
or of the other party.2”°

80. Other Remedies Against Trespassing Animals.—A part from
the right to distrain discussed in the preceding section, the
owner of land on which animals have trespassed has no lien
upon them or authority, in the absence of a statute, to pen or
detain them, and one may, without incurring liability, throw
down another’s fence in order to recover his animals so de-
tained.27® The land-owner may remove the animals from
the land. Beyond that, his right is limited to impounding
them according to the law of the place, and where he drives
them to his own premises and holds them there until dam-
ages done on that occasion and previous ones are paid, he is
liable in replevin.*** “Nor can he in such a case recover the

*2 Bunch v. Kennington, 1 Q. B. 679.

*? State v. Clark, 65 Ia. 336, citing Webs. Dict.

** Oldham v. Foster Distress, 2d ed., 308. And see McPherson v.
James, 69 Ill. App. 337; Gilbert v. Stephens (Okla.), 55 Pac. Rep. 1070.

*™ See §§ 81-84, infra.

*° Vaspor v. Edwards, 12 Mod. 658. And see Brown v. Howard, infra.

“° Hill v. State, 104 Ala. 64. *T Ladue wv. Branch, 42 Vt. 574.

OTHER REMEDIES AGAINST TRESPASSING ANIMALS. 307

cost of keeping the animals in confinement.?78 Where a
right is given by statute to detain and treat trespassing ani-
mals as estrays where they “break into the enclosure,” this
does not apply where the animals of a known owner tempor-
arily escape from his enclosure and are found trespassing on
the unenclosed lands of another, and the latter, if he takes
them, is liable in replevin.27° A law giving the owner of cul-
tivated lands a lien on trespassing stock has been held to be
applicable to lands within limits in which a mayor and council
had power by charter to provide by ordinance for impound-
ing animals running at large.?5°

A lien is waived by the election of the land-owner to enforce
his common-law remedy of trespass quare clausum fregit
against the owner of cattle.2°! And a statutory lien cannot
be acquired unless the party injured by the trespass complies
substantially with the provisions of the statute.28? One who
holds under such a lien is liable to the owner of animals for
injuries to them resulting from his failure to feed and care for
them.?8%

Continuous trespasses do not constitute several causes of
action.**+ In a New York case it is said: “In case of cattle
trespassing on the lands of an adjoining owner, it often hap-
pens that the injury is a continuing one, committed by the
different animals on the same or on different days, so that it
would be almost impossible to separate the acts of trespass.
It was indispensable [i. e., at the common law] in such cases
to avoid a multiplicity of actions and to relieve parties from

“8 North v. McDonald, 47 Barb. (N. Y.) 528. And see Wormer v.
Biggs, 2 C. & K. 31.

"9 Anderson v. Worley, 104 Ind. 165.

And see Mackler v. Schuster, 68 Mo. App. 670.

*° Lingonner v. Ambler, 44 Neb. 316. See also Brown v. Sylvester,
37 id. 870, as to what are “cultivated lands.”

* Brown v. Howard, 86 Me. 342. *° Deirks v. Wielage, 18 Neb. 176.

As to notice to the owner, see Sloan v. Bain, 47 id. 914.

°° Richardson v. Halstead, 44 Neb. 606.

* De La Guerra v. Newhall, 53 Cal. 141.

308 ANIMALS TRESPASSING AND RUNNING AT LARGE.

the obligation of proving distinct and independent causes of
action, that they might allege the trespass with a continuando,
recovering for such injury as they were able to prove to have
been done by the defendant’s cattle.” It was there held that
this rule was still in force under the code, and that where the
complaint alleged that on a day and on divers other days and
times between that day and the commencement of the suit,
the defendant’s cattle broke into, etc., it was competent to
prove any number of trespasses between the day alleged and
the bringing of the suit.?°°

The plaintiff may recover the value of the crops destroyed
at the time of their destruction, but cannot prove what
amount of crop he would have had without the injury.*8
And it was held inadmissible for the defendant to prove in
mitigation of damages that the crop was grown in shares and
the plaintiff withheld a part of the defendant’s share.**'

A statute authorizing the seizure and sale, without proper
judicial proceedings and notice, of an animal found trespass-
ing on private grounds is unconstitutional, as such a forfeiture
is a deprivation of property without due process of law,?**
and the same principle extends to an ordinance directing a
town officer to take into possession and sell animals running
at large, without notice to the owner.*®® The rule appears to
be that a statute providing for such a summary sale of an ani-
mal for the expenses of taking it up and keeping it, is con-
stitutional, but in so far as it provides for a sale for a fine or

*° Richardson v. Northrup, 66 Barb. (N, Y.) 85.

* Gresham v. Taylor, 51 Ala. 505. *" Prout v. Hardin, 56 Ind. 165.

* Rockwell v. Nearing, 35 N. Y. 302; Leavitt v. Thompson, 56 Barb.
(N. Y.) 542; McConnell v. Aernam, Ibid. 534, and note.

*““Varden v. Mount, 78 Ky. 86, where it is said: “The right to forfeit
without citation and without hearing can only exist from necessity. That
right in this instance should not be extended beyond impounding the
hogs. When that is done, the necessity for summary and _ precipitate
action ceases and judicial proceedings looking to forfeiture may then
properly begin.”

See also Donovan v. Vicksburg, 29 Miss. 247; Bullock v. Geomble, 45
Il. 218; Tiedeman Munic. Corp. § 155.

OTHER REMEDIES AGAINST TRESPASSING ANIMALS. 309

penalty without a judicial investigation or an opportunity to
show that the owner of the animals had not incurred the pen-
alty, it is unconstitutional.2%°

Where, however, an opportunity of judicial investigation is
given, the statute is constitutional, and it is immaterial that
personal notice to the owner is not required: notice by post-
ing is sufficient. ‘The proceedings are in the nature of pro-
ceedings im rem, the penalty or forfeiture attaching to and
being a lien upon the offending animals.” *°! It is essential
that the requirements of statutes regulating summary pro-
ceedings should be strictly complied with, or else such pro-
ceedings are void.?%?

See o7 Am. Dec. 90 n., citing Wilcox v. Hemming, 58 Wis. 144;
Gosselink v. Campbell 4 Ia. 296; Poppen v. Holmes, 44 Ill. 360; Gilchrist
vw. Schmidling, 12 Kan. 263; Campau v. Langley, 39 Mich. 451. Contra:
Kennedy v. Sowden, 1 McMull. L. (S. C.) 323; Crosby v. Warren, I
Rich. L. (S. C.) 385, where it was held that such a sale even for a fine or a
penalty does not deprive the owner of property without due process of law.
And see Strauser v. Kosier, 58 Pa. St. 496, sustaining an act by which
swine running at large may be forfeited and sold for a penalty, without
notice. See also Spitler v. Young, 63 Mo. 42; Roberts v. Ogle, 30 IIl.
459, and § &4, infra.

“* Campbell v. Evans, 45 N. Y. 356. And see Fox v. Dunckel, 55 Barb.
(N. Y.) 431; Hellen v. Noe, 3 Ired. L. (N. C.) 493.

“’ Cory v. Dennis, 93 Ala. 440; Strauser v. Kosier, 58 Pa. St. 496.

TITLE IV.

LIABILITIES OF OWNERS OF ANIMALS.

CHAPTER II.

IMPOUNDING. INJURIES ON HIGHWAYS. DISEASED ANI-
MALS. NUISANCES. RACING.

81. Nature of a pound. 87. Damage done in highways by
82. The right to impound. passing animals.
83. Manner of impounding; reme- 88. Diseased animals; sale.
dies of the owner. 89. Diseased animals; transporta-
84. Damages; sale. tion and liability in general.
85. Horses left unguarded in the 90. Nuisances; diseased and dead
highway. animals.
86. Liability in case of horses run- 1. Racing and betting.
ning away.

81. Nature of a Pound—The subject of impounding is one
that is largely regulated by statute. There are some general
principles, however, that it may be well to consider here.

Where animals are found trespassing or running at large
in violation of law, they may be captured and driven to a
pound. A town pound, ex wi termini, is an enclosed piece of
land secured by a firm structure of stone or of posts and tim-
ber, placed in the ground; and by the grant or exception in
a deed of a town pound, the land on which it stands is con-
veyed or excepted, not as an appurtenance but as parcel of
the subject-matter... A shed on another lot used as the en-
trance to a pound is a part of it? A pound-keeper may use

* Wooley v. Groton, 2 Cush. (Mass.) 305.
? Wilcox v. Hemming, 58 Wis. 144.

310

NATURE OF A POUND. 311

as a pound a yard furnished and used by the town, if there is
no other place, though no action of the town has established
it as a pound.? But it has been held that where there is no
public town pound, the pound-keeper has no authority to con-
fine animals in his own yard.* It was held in Maine that
where there is no pound or pound-keeper, one may legally
detain in his own custody an animal taken damage feasant
upon his premises, and has a lien upon it for expenses neces-
sarily incurred in taking suitable care of it. ‘He was there-
fore without remedy unless we hold that the common-law
mode of impounding survived in cases not covered by the
statute. .. . At common law, cattle could be impounded
either in a common or a private pound at the option of the
impounder. The statutes of New Hampshire, Vermont and
Massachusetts respectively require towns, under similar pen-
alties, to erect and maintain pounds, but provide that creat-
ures must be impounded in the public pound if there be any
in the town, otherwise in the barn or enclosure of the person
taking them up. To be sure there is no such express pro-
vision in the statute of this State, but it should practically re-
ceive the same construction.” > But in a Vermont case it
was held that the restraining of cattle without putting them
in a pound and without an intent to impound them, does not
constitute an impounding, though there was no usable public
pound in the town.®

Where it is by statute made the duty of selectmen to “erect
and maintain” pounds, this duty is fully discharged by their
purchasing or hiring to be used as pounds suitable enclosures
already erected.” The place legally chosen will continue to
be the pound till changed by the proper authorities.®

* Anthony v. Anthony, 6 Allen (Mass.) 408.
‘Collins v. Larkin, 1 R. I. 219.

* Mosher v. Jewett, 63 Me. 84.

* Howard v. Bartlett (Vt.), go Atl. Rep. 825.
™ Whitlock v. West, 26 Conn. 406.

®Colp v. Halstead, 63 Ill. App. 116.

312 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

82. The Right to Impound.—A statute or ordinance author-
izing the impounding and sale of animals running at large is
not unconstitutional.? And where a town is authorized to
enact ordinances restraining animals from running at large,
this includes the power to provide for impounding and sale.*°
But the office of a pound-keeper is a public office and a mu-
nicipal corporation has no power to appoint one nor to
create a forfeiture of the property unless the authority is
specially given in the charter? A statute requiring owners
to confine their cattle at night does not justify impounding
where this is not done.!2 And a statute providing that the
owner of enclosed premises might impound stock trespassing
thereon and that damages might be assessed by three free-
holders and the stock sold in payment thereof, was held un-
constitutional, no public pound being provided for and the
interested party being made sole judge of the trespass.'®
Replevin will not lie against a constable impounding a cow
running at large upon the street in violation of a valid or-
dinance, he being an authorized officer.1# And where an
officer found two persons driving hogs to the pound and as-
sisted them, it was held that he was not unlawfully detaining
the hogs, having found them at large before they were im-
pounded.® In a New York case it was held that an or-
dinance authorizing a street inspector to drive animals to the
pound and to hire assistance, does not authorize anyone but
the inspector and his assistants under his immediate direction

° Dillard v. Webb, 55 Ala. 468; Burdett v. Allen, 35 W. Va. 347; Rose
v. Hardie, 98 N. C. 44; Rood v. McCargar, 49 Cal. 117; Coyle v. McNabb,
4 Tex. App. Civ. Cas. 487.

© Folmar v. Curtis, 86 Ala. 354; Whitlock v. West, 26 Conn. 406.

But see Johnson v. Daw, infra.

* White v. Tallman, 26 N. J. L. 67; Slessman v. Crozier, 80 Ind. 487.

And an authority to impose a “fine for forfeiture’ does not authorize
a forfeiture: Johnson v. Daw, 53 Mo. App. 372.

” Oil v. Rowley, 69 Ill. 460.

* Armstrong v. Traylor, 87 Tex. 508.

See also the cases cited in § 80, supra.

* McJunkin v. Mathers, 158 Pa. St. 137. © Friday v. Floyd, 63 Ill. 50.

THE RIGHT TO IMPOUND. 313

to drive animals to the pound, though the inspector had given
public notice that anyone who should do so would receive
payment.!®

Animals cannot be impounded except for the causes pro-
vided by the statute."7 But impounding is not a necessity:
it is a cumulative, and not an exclusive remedy,!* and the
land-owner may drive the stray cattle into the highway with-
out being guilty, of conversion.’®

An ordinance forbidding the running at large of animals
and directing their impounding justifies the impounding of
animals belonging to non-residents of the town.2° An act
providing that the driving of live stock into a city for the pur-
pose of getting them impounded is a misdemeanor, that the
poundage of non-residents of a town where stock may be im-
pounded shall not be more than one-fourth of the amount
paid by residents, and that non-residents living more than
a mile from the city limits shall pay no poundage for the first
three times their’stock are impounded, was held not uncon-
stitutional as granting exclusive privileges or as denying the
equal protection of the laws.??

* Jackson v. Morris, 1 Denio (N. Y.) 199.

™ Jones v. Clouser, 114 Ind. 387.

Thus, under the Delaware statute, animals in a public road entering a
field cannot be impounded in the absence of negligence of their owner or
his agents, but they may be impounded where they escaped by reason of
his leaving open the bars of his enclosure: Spruance v. Truax, 9 Houst.
(Del.) 129. See, as to the place of taking, McKeen v. Converse (N. H.),
39 Atl. Rep. 435.

As to the right to impound, under the Indiana statute, see McManaway
v. Crispen (Ind. App.), 53 N. E. Rep. 840.

*® Bonner v. De Loach, 78 Ga. 50; Walker v. Wetherbee, 65 N. H. 656.

* Stevens v. Curtis, 18 Pick. (Mass.) 227.

> Rose v. Hardie, 98 N. C. 44; Folmar v. Curtis, 86 Ala. 354; Friday v.
Floyd, 63 Ill. So.

| Broadfoot v. Fayetteville, 121 N. C. 418. An act prohibiting a town
from charging fines and poundage where stray animals belong to non-
residents does not prevent the town from impounding such animals and
selling them for the cost of feeding while impounded: Aydlett v. Eliza-
beth City, Ibid. 4.

314 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC.

The land-owner cannot impound cattle that enter through
a breach in a fence which he is bound to repair,?* though it
may be immaterial that his own part of a division fence is out
of repair where the animals break through the other part.*3
And where he has agreed to keep a portion of the division
fence in repair, he cannot impound animals entering through
a defect, though it may be unlawful for animals to run at
large.?*

One fencing government land with his own in violation of
a statute cannot detain cattle found in the enclosure under a
statute authorizing the impounding of trespassing animals.”

83. Manner of Impounding; Remedies of the Owner.—The ani-
mals taken up must be driven to the pound within a reason-
able time ?* and with reasonable diligence,?” and these ques-
tions are for the jury. In the latter case it is said: “A person
who first lawfully distrains cattle is entitled to retain them
in custody until he can deliver them into the custody of the
pound-keeper. He is entitled so to keep them as will enable
him surely to deliver them to such keeper. Were he in dan-
ger of losing that custody by driving them in the darkness of
the night when it would be easy for them to escape and when
there was reasonable danger that they would, we do not see
that he might not keep that custody by shutting them up until
they could be safely driven. He would have no right un-
reasonably to delay and without necessity keep them from
the pound. His duty is to give all reasonable diligence and

* Akers v. George, 61 Ill. 376; Hitchcock v. Tower, 55 Vt. 60; Coor v-
Rogers, 97 N. C. 143. And see McSloy v. Smith, 26 Ont. 508.

Or that the adjoining cattle-owner is not liable to repair: Eastman v-
Rice, 14 Me. 419, under a statute.

® Hine v. Munson, 32 Conn. 2109, under a statute.

* Hopkins v. Ott, 57 Mo. App. 292. And see Field v. Bogie, 72 id. 185.

See § 72, supra.

* Taylor v. Buford, 8 Utah 113. * Drew v. Spaulding, 45 N. H. 472.

7 Angell v. Simmons, to R. I. 418.

MANNER OF IMPOUNDING ; REMEDIES. 315

in good faith to deliver them at the pound without endanger-
ing the custody he has.”

The distrainor of cattle is bound to impound them in a
proper pound, and if the usual one is not in a fit condition he
must find another.28 So, the party impounding, must feed
and water the cattle properly according to the usage of the
country and of good husbandry or he will be considered a
trespasser ab initio.2® Merely driving them off the land into
the highway and detaining them till the owner comes to take
them away and demanding a sum of money as damages, do
not amount, as a matter of law, to an impounding.®® Where
a field-driver in taking an animal to the pound drives it first
upon the owner’s premises his act is not necessarily unlaw-
ful.31 And where running at large is unlawful, an officer may
pursue the animals to private property used as a common or
take them up and impound them when loose upon a com-
mon. “To hold that such right having once attached entirely
ceased or became suspended whenever such cattle tem-
porarily passed from such public place and became trespassers
upon private property, would tend to defeat the very object
of the ordinance.” 22. One driving an animal from one place
in a district where running at large is forbidden to another,
for the purpose of impounding it, is not guilty of driving it
from a lawful into an unlawful district to be impounded.**

The impounder has the right to use the same force to main-
tain his possession that a sheriff has to protect his possession
of property taken by him on legal process. And one so
taking possession does not, by afterwards abandoning his in-
tention, become a trespasser ab initio so as to be liable for the
force he used in defence of the property before he gave it up.**

* Bignell v. Clarke, 5 H. & N. 485; Wilder v. Speer, 8 A. & E. 547.
7 Adams v. Adams, 13 Pick. (Mass.) 384.

® Conners v. Loker, 134 Mass. 510.

® Parker v. Jones, 1 Allen (Mass.) 270.

® Q’Mally v. McGinn, 53 Wis. 353. ™ Ghent v. State, 96 Ala. 17.
* Barrows v. Fassett, 36 Vt. 625.

316 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC.

But the impounder must comply with all the statutory pro-
visions with regard to impounding or he will be a trespasser
ab initio2® This has been held to be the case with regard to
the memorandum to be left with the pound-keeper,®® the
ascertainment of damages by fence-viewers,*” and the notice
to be given to the owner.*® But where the statute defined
the form of notice to be given forty-eight hours after the im-
pounding, it was held that a verbal notice given at once was
sufficient, the owner of the animals not being injured by the
omission.2® And where the owner replevied the cattle within
twenty-four hours after the impounding, it was held that he
could not afterwards object that no statutory notice was
given.*? So, if he discovers the facts within the time allowed
for giving notice and refuses to pay reasonable damages.**
A natice given by a field-driver to the owner of cattle that
they are impounded for going at large on a public highway
is prima facie evidence that they were so at large and puts on
the owner the burden of proving the contrary.** Failure to

Merrick v. Work, to Allen (Mass.) 544; Smith v. Gates, 21 Pick.
(Mass.) 55; Fitzwater v. Stout, 16 Pa. St. 22; Sutton v. Beach, 2 Vt. 42;
Frazier v. Goar, 1 Ind. App. 38; Nafe v. Leiter, 103 Ind. 138.

%° Sherman v. Braman, 13 Metc. (Mass.) 407; Newhouse v. Hatch, 126
Mass. 364; Morse v. Reed, 28 Me. 481; Palmer v. Spaulding, 17 id. 239.

** Merritt v. O’Neil, 13 Johns. (N. Y.) 477, where the fact that the owner
of the animals was himself the pound-master was held to be no defence.

* Rounds v. Stetson, 45 Me. 596; Hanscom v. Burmood, 35 Neb. 504;
Forsyth v. Walsh, 4 Ind. App. 182. See Young v. Rand, 18 N. H. 569.

For notice held sufficient, see Goodsell v. Dunning, 34 Conn. 251; Pick-
ard v. Howe, 12 Metc. (Mass.) 198; Moore v. Robbins, 7 Vt. 363; Hooper
v. Kittredge, 16 id. 677.

For notice held insufficient, see Sanderson v. Lawrence, 2 Gray (Mass.)
178; Coffin v. Field, 7 Cush. (Mass.) 355; Jones v. Dashner, 89 Mich. 246.

*° Sweeney v. Sweet, 14 R. I. 195.

* Wild v. Skinner, 23 Pick. (Mass.) 251, where it was also held that
where cattle may be impounded “‘at any time,” it may be done on Sunday
as a work of necessity. ants

“Norton v. Rockey, 46 Mich. 460.

* Pickard v. Howe, 12 Metc. (Mass.) 108.

MANNER OF IMPOUNDING; REMEDIES. 317

give notice is not waived by the owner’s appearing and de-
manding his property.*?

The pound-keeper is a public officer discharging a public
duty and is not liable for detaining a distress unless he has
done some act beyond his duty whereby the owner suffered
some particular damage not recoverable against the dis-
trainor, or when, by going out of the line of his duty, he
makes himself a party to some illegal act of the distrainor.*+
He must strictly comply with the statute regulating responsi-
bilities.*° He is bound to receive everything offered to his
custody, whether legally impounded or not;** and is or-
dinarily not liable in replevin for doing so.47) ‘““‘When Lord
Mansfield says that the pound-keeper cannot let things im-
pounded go ‘without a replevin,’ he obviously means a re-
plevin brought against the distrainor. . . . But the situation
of a pound-keeper is not that of a bailiff or servant. He is
a public officer.” #8 So, he is not subject to replevin by the
owner of the impounded animals for acts done by the im-
pounder prior to the time when he (the pound-keeper) could
exact security or lawfully refuse to perform his statutory
duties.4® But where he takes the beasts from the pound and
drives them elsewhere to feed, he loses control of them and
the owner may take them away and bring replevin for them,
if retaken.°° The pound-keeper is bound to keep them in
the pound only, unless the removal is necessary to save them
from injury, and if a constable, with notice of their removal
from the pound, sells them at auction at the request of the

* Wyman v. Turner, 14 Ind. App. 118.

“4 Wardell v. Chisholm, 9 U. C. C. P. 125.

* Clark v. Lewis, 35 Ill. 417; Marshall v. Yoos, 20 Ill. App. 608.

Badkin v. Powell, Cowp. 476.

Wardell v. Chisholm, 9 U. C. C. P. 125; Ibbottson v. Henry, 8 Ont. 625;
Bills v. Kinson, 21 N. H. 448; Folger v. Hinckley, 5 Cush. (Mass.) 263.

Wardell v. Chisholm, supra, commenting on Lindon v. Hooper,
Cowp. 414.

* Mattison v. Turner (Vt.), 39 Atl. Rep. 635.

® Bills v. Kinson, supra. And see Harriman v. Fifield, 36 Vt. 341.

318 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

pound-keeper, such request will not protect him and he is
guilty of trespass. The keeper who has removed the animals
“has put an end to the effect of the act of impounding and
has become the keeper of an animal belonging to another,
with no right in reference thereto other than to deliver it upon
demand to the owner.” 54 So, where a distrainor takes an
animal out of the pound for the purpose of using it unlaw-
fully, the owner may take it out of his possession without
rendering himself liable for either rescue or pound-breach.*?

There is no relation of debtor and creditor created by law
between the impounder and the pound-keeper in relation to
the expense of keeping and feeding, and, in the absence of
an express contract that the impounder will pay expenses,
the pound-keeper has no remedy against him therefor. If
the animals were impounded contrary to law, so that the im-
pounder is a trespasser, this will not enable the pound-keeper
to recover of the impounder such expense in an action upon a
book-account.53 :

Where the fence of the pound is sufficient, the fact that a
horse kills himself by rushing or kicking against it or by try-
ing to clear it does not make the municipal corporation
liable.°* And in replevin brought against the field-driver, the
owner cannot show that the cattle were not suitably provided
for or were ill-treated in the pound.®> A private individual
impounding a beast in the town pound is not liable for an in-
jury which it receives from cattle confined in the same
pound.°®

Taking away and setting at liberty, even without violence
or threats, is a rescue of a distrained or impounded animal.57

" Collins v. Fox, 48 Conn. gogo. “ Smith v. Wright, 6 H. & N. 821.

“ Williams v. Willard, 23 Vt. 369. “ Greencastle v. Martin, 74 Ind. 449

* Pickard v. Howe, 12 Metc. (Mass.) 108.

© Brightman v. Grinnell, 9 Pick. (Mass.) 14.

Hamlin v. Mack, 33 Mich. 103.

That this at least is essential to the offense of pound-breach, see State
v. Young, 18 N. H. 543.

MANNER OF IMPOUNDING; REMEDIES. 319

So, where a person takes cattle from the lawful custody of the
field-driver when he is driving them to the pound, though
they are never out of the latter’s sight and are at last sur-
rendered to him and impounded. = “Whena man hath taken
a distresse and the cattle distreyned, as he is driving of them
to the pound, go into the house of the owner, if he that took
the distresse demand them of the owner, and he deliver them
not, this is a rescous in law.” 5® So, where the owner aids the
rescuers on meeting them, he is guilty of pound-breach.®
Where one, without force or fraud, impounds another’s cattle,
the latter must resort to law, though the impounding is with-
out right ;°1 and in an indictment for pound-breach, the ille-
gality of the impounding cannot be shown in defence.*®2

The owner is entitled to the return of the animals if he ten-
ders amends before the impounding.’ “If he does not
choose to replevy, but is desirous to have his cattle immedi-
ately re-delivered, he may make amends and then bring an
action of trespass for taking his cattle, and particularly charge
the money so paid by way of amends as an aggravation of the
damage occasioned by the trespass.” ®* Where the cattle
distrained were in a private pound and the distrainor ad-
mitted that they were to be forwarded to a public pound, it

* Vinton v. Vinton, 17 Mass. 342.

But where the defendant was in pursuit of her animals which the pros-
ecutor was trying to impound, she was held not to be indictable for ‘“‘re-
leasing impounded animals” because she drove them from his enclosure:
State v. Hunter, 118 N. C. 1106.

° Co. Litt. 161 a.

® Pierce v. Josselyn, 17 Pick (Mass.) 415.

° Bowman v. Brown, 55 Vt. 184.

®= Com. v. Beale, 5 Pick. (Mass.) 514. And see Melody v. Reab, 4
Mass. 471.

But the owner of cattle wrongfully impounded within a fenced enclosure
is not guilty of injuring the fence of another without his consent, if he takes
down the fence to release the cattle: Klein v. State (Tex. Cr.), 39 S. W.
Rep. 369. See also Matthews v. Schmidt, 8 Kulp (Pa.) 471.

® Sheriff v. James, 1 Bing. 341; Singleton v. Williamson, 7 H. & N. 747.

"™ Lord Mansfield in Lindon v. Hooper, Cowp. 414.

320 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

was held that a tender made then was not too late ;® and if,
where the animal is in a private pound, the distrainor, by de-
manding an excessive sum for damages as the condition of
release, obtains such sum, the payment is not voluntary and
the amount may be recovered in an action for money had and
received.6® But it has been held that case does not lie
against the distrainor for impounding the animals instead of
accepting the compensation tendered before the impound-
ing.®*

Where the animals have been impounded, the owner can-
not replevy them until he pays or offers to pay the costs and
expenses of the proceeding.®* He does not, by paying the
pound-keeper’s fees, waive his right to bring trespass for an
irregularity or omission.®®

An ordinance fixing certain fees which must be paid before
an impounded animal will be released, creates no lien for any
fees or charges not included within those specified.*°

A statute allowing impounding and demanding an allow-
ance for keeping where animals break through a lawful fence
must be strictly construed, and was held not to apply to other
cases, as where the owners agreed to have no partition fence,
but to keep their stock from trespassing.”!

84. Damages; Sale—The party impounding is confined in
his recovery to damages occasioned by the particular trespass
for which the animals were impounded. He cannot demand
payment for any damage previously done.72. The actual ex-

“ Browne v. Powell, 4 Bing. 230, where it was also held that a tender to
the distrainor’s wife who has acted as his agent is sufficient.

“ Green v. Duckett, 11 Q. B. D. 275. See Gulliver v. Cosens, 1 C. B. 788.

* Anscomb v. Shore, 1 Taunt. 261.

“Wilhelm v. Scott, 14 Ind. App. 275; Schlachter », Wachter, 78 II.
App. 67.

® Coffin v. Field, 7 Cush. (Mass.) 355. See as to fees, Colp v. Halstead,
63 Ill. App. 116.

® Martin v. Foltz, 54 Neb. 162. " Dent v. Ross, 52 Miss. 188.

“Holden v. Torrey, 31 Vt. 690; Smith v. Brownlee, 10 Leg. News

DAMAGES; SALE. 321

penses of impounding may also be recovered, but not where
the animal has done no damage,** or the impounder’s act has
been unlawful.7* Where the.impounder sues for damages
without claiming expenses and the judgment is for the de-
fendant, the former is not entitled to any compensation for
keeping the animals pending the suit.”®

The statutes generally provide that a sale shall follow the
impounding, should the owner not appear or refuse to dis-
charge his obligations. The question of summary sales has
been already discussed,”* and the same principles apply to a
sale after an impounding. Where the owner is subjected to
a penalty, there must be some judicial inquiry into the facts.
In an Illinois case it is said: ‘Every citizen has a right to a
judicial investigation when charged with an offense. Suffer-
ing horses to run at large in the streets of the city was an
offense punishable by a fine of five dollars for each head.
The seventh section of the ordinance empowers the pound-
master to give notice that, unless the animals are claimed by
the owners and the penalty and the cost of their keeping paid
within five days thereafter, the animals will be sold to satisfy
the same. This provision is void as contravening that con-
stitutional right every man has to an investigation in court
when charged with an offense punishable by fine. Such a
penalty can only be enforced by action at law, in which the
owner would have a right to show he was not liable to the
penalty—that his case was not within the spirit and meaning
of the ordinance.” 77 Where the sale of the animal is for the
purpose only of paying the expenses of the impounding, it

(Can.) 405; Meunier dit Legacé v, Cardinal, Rap. Jud. Quebec, 10 C.
S. 250.

3 Dudley v. McKenzie, 54 Vt. 685; Osgood v. Green, 33 N. H. 318;
Dunton v. Reed, 17 Me. 178.

™ McBride v. Hicklin, 124 Ind. 499. * Hamil v. Cox, 90 Ga. 54.

© See § 80, supra.

7 Willis v. Legris, 45 Ill. 289, 292. See Spitler v. Young, 63 Mo. 42.

That an act providing for the sale of an impounded animal after notice
is not unconstitutional, see Brophy v. Hyatt, 10 Colo. 223.

21

322 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC.

has been held that it is a legitimate exercise of police power
and need not be preceded by a judicial inquiry.‘* Such pro-
ceedings are i rem and constructive service by publication is
sufficient to give validity to the sale, without personal notice
being served on the owner.”

But in a Kentucky case it was held that to authorize the
sale of an animal impounded for running at large to pay the
fees and costs of impounding, some formal proceeding is
necessary to determine the fact that the animal seized was ac-
tually running at large, in which the owner may have an op-
portunity of being heard; that, if possible, personal service
should be had upon him, but, if not, the proceeding may be
in rem and some public notice given him of the time and place
of sale; and that it is not necessary that the owner should have
permitted the animal to run at large, as the city has the right
to subject it to fees and costs without reference to the owner’s
being in fault.8° An ordinance providing for the impound-
ing of dogs running at large, notification to their owners, and
the killing of dogs not redeemed within twenty-four hours,
is not unconstitutional.

One impounding cattle, before he can sell them at auction,
must protect himself by a legal warrant of sale, and must show
that his prior proceedings and those of the pound-keeper have
been regular and in conformity with the law.8? The statute
must be strictly observed or the field-driver will be held to be
a trespasser ab initio.®* But the field-driver is not such a
trespasser where he has lawfully impounded and given notice,
though he fails to return or sell according to law through the
pound-keeper’s default or the insufficiency of the pound.**

In an action against a city to recover the value of an ani-

® Wilcox v. Hemming, 58 Wis. 144. ® Wilson v. Beyers, 5 Wash. 303.

” Gentry v. Little, 16 Ky. L. Rep. 26. And see Armstrong v. Brown
(Ky.), 50 S. W. Rep. 17.

" Hagerstown v. Witmer, 86 Md. 293. * Cate 7. Cate, 44 N. H. at.

* Smith v. Gates, 21 Pick. (Mass.) 55.

* Coffin v. Vincent, 12 Cush. (Mass.) 08.

DAMAGES ; SALE. 323

mal impounded and sold, the burden is on the defendant to
show that proper notice has been given.85> The notice of sale
should mention the place where the sale occurs, or it is not
legal.*°

An ordinance providing that the pound-keeper may in his
discretion sell impounded animals to the highest bidder does
not authorize doing so at a private sale.6”

A person claiming title under a pound-master’s sale must
show, in order to divest the owner’s title, that the animal was
liable to be impounded and that the proceedings were author-
ized by law.8& But in Nova Scotia it was held that the owner
of an animal wrongfully impounded could not recover against
a purchaser at a public auction by the pound-keeper under a
lien for maintenance, where the sale had been regularly and
properly conducted.®®

85. Horses Left Unguarded in the Highway.— With regard to
leaving horses unhitched or unguarded in the highway, the
prevailing rule appears to be that this is not negligence per se
but is to be left for the jury to consider with all the circum-
stances.°° “Whether it is negligent to leave a horse un-
hitched must depend upon the disposition of the horse,
whether he was under the observation and control of some
person all the time and many other circumstances, and it is
a question to be determined by the jury from the facts of each
case.” °1 And in a Kansas case where it was held that a per-
son is liable for an injury done by his runaway horse that had

* Fort Smith v. Dodson, 51 Ark. 447.

* Sutton v. Beach, 2 Vt. 42.

See, as to sufficiency of notice, Dodge v. Baker, 24 Nov. Sco. 552.

** Archer v. Baertschi, 8 O. Circ. Ct. 12.

8 Johnston v. Kirchoff, 31 Minn. 451.

* Dodge v. Baker, 24 Nov. Sco. 552.

® Dexter v. McCready. 54 Conn. 171; Park v. O’Brien, 23 id. 339;
Potter & Parlin Co. v. N. Y. Cent. & H. R. R. Co., 22 Misc. (N. Y.) 10.

See Fallon v. O’Brien, 12 R. I. 518.

See, also, on this subject, § 68, supra.

" Griggs v. Fleckenstein, 14 Minn. &r.

324 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC.

been left untied, though the driver is careful and the horse
an ordinarily gentle one, the court said: “We do not hold
that the leaving of a team of horses in a street without being
tied or held by the reins is, under all circumstances, as a mat-
ter of law, negligence per se... . The driver, however, in
such cases ought to be near his horse and in a condition to
control him by his voice and to reach him, if necessary, with
his hand in an emergency.” *?

So it was held not to be negligence per se for the driver of
a quiet horse standing in the street to let go the reins while
he alighted to fasten the head-weight, there being at the time
little trafic and no noise in the street, the horse becoming
frightened by a sudden noise just after the driver had
alighted.°? And a porter was held not to be obliged, under
the circumstances, to put a person at his horse’s head while
he removed the goods from his cart.°*

It was held in Kentucky that where a runaway was caused
by a driver’s leaving his team standing in the street, evidence
could not be given of an ordinance making this unlawful.
“Tt is the legal duty of every person having charge of a horse
in city or country to apportion the care with which he han-
dies him to the danger to be apprehended from a failure to
keep him constantly under control. . . . It may be danger-
ous for a driver to leave his team upon the street and the city
council no doubt had authority to prohibit such an act: but
the simple fact that they did prohibit it does not prove nor

@ Moulton v. Aldrich, 28 Kan. 300.

That negligence is presumed in such a case in the absence of explana-
tion, see Davis v. Kallfelz, 22 Misc. (N. Y.) 602.

That the fact that horses got loose after being hitched would be some
evidence of negligence, see Strup v. Edens, 22 Wis. 432.

* Sullivan v. McWilliam, 20 Ont. App. 627. Otherwise, where there is
reason to anticipate fright: Benner Livery & U. Co. v. Busson, 58 II.
App. 17. And see Milne v. Nimmo, 25 Rettie (Sc. Ct. Sess.) 1150.

“Hayman v. Hewitt, Peake’s Add. Cas. 170. And see Smith v. Wal-

lace, 25 Rettie (Sc. Ct. Sess.) 761; Wright v. Dawson, 5 so. L. Tt,
Rep. 196.

HORSES UNGUARDED IN HIGHWAY. 325

even tend to prove that the appellant’s driver was guilty of
such negligence as renders them liable for an injury resulting
from their team having been left standing upon the streets
in violation of the ordinance.” *® But in other States the
failure to comply with such a provision, whereby the animals
run away and do damage, has been held to be negligence
per se.%®

There are many circumstances, however, that will render
the owner liable, as where the horse is high-spirited or ad-
dicted to running away,’ or the place is a crowded city
street,°® or there has been negligence in the hitching or guard-
ing.

But the leaving the animal unhitched or unattended need
not be the immediate cause of the injury: the owner was held

* Dolfinger v. Fishback, 12 Bush (Ky.) 474, where it was also held that
an ordinance prohibiting the hitching of animals to shade-trees was made
competent evidence for the defendant by the plaintiff’s proving that there
were shade-trees near where the team was left.

* Siemers v. Eisen, 54 Cal. 418; Bott v. Pratt, 33 Minn. 323.

* McIntosh v. Waddell, 24 Rettie (Sc. Ct. Sess.) 80.

It is for the jury to determine whether it was negligence to leave the
team unhitched where the evidence showed it had run away once before:
Doyle v. Detroit Omnib. Line Co., 105 Mich. 195. See Benoit v. Troy
& L. R. Co., 154 N. Y. 223; Donnelly v. Fitch, 136 Mass. 558; cited in
§ 86, infra.

* Phillips v. De Wald, 79 Ga. 732, where it is said: “Every horse what-
ever, no matter how gentle and amiable, must be properly attended or
secured in the crowded business streets of a city, when there by the act
of the owner and subject to his control. The instincts common to the
species render this necessary, and of these instincts every owner must be
presumed to have notice.”

See, also, Pierce v. Conners, 20 Colo. 178; Williams v. Koehler, 58 N. Y.
Suppt. 863: Guimond v. Montreal, 4 Rev. Leg. (Can.) 285; McEwan v.
Cuthill, 25 Rettie (Sc. Ct. Sess.) 57.

° Frazer v. Kimler, 2 Hun (N. Y.) 514; Wagner v. Goldsmith, 78 Ind.
517; Wasmuth v. Butler, 86 Hun (N. Y.) 1.

And see Rumsey v. Nelson, 58 Vt. 590, where the question was held
not to be whether the defendant knew that the horse had a propensity
to break his fastenings but whether his servant, under the circumstances,
used the care of a prudent man in hitching.

326 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC.

liable where the damage was occasioned by the act of a
passer-by in striking the horse.1° “It is not material what
frightened the horse, if he was not properly taken care of so
as to prevent his running. It is the duty of the owner ofa
horse under such circumstances to exercise care on his part
to guard against such an accident; and his neglect in so doing
involves him in liability for the consequences, as well as the
person who may have caused the frightening of the horse.” *°?
So, where the immediate cause of the running away was the
falling of hot water from an elevated road;*°* or of icicles.
“The falling of the ice was in itself no cause of injury directly
and immediately to the plaintiff. .. . The defendant is not
held responsible for the falling of the ice, but for his negli-
gence in leaving his horse in a condition where he might run
away, if alarmed by such or any similar cause.” 1°? And the
fact that a horse would not have run away if it had not been
hit by stones thrown by boys does not relieve the owner from
liability to an injured person, where the horse could not have
broken loose but for the defective condition of the rope with
which it was tied.1°4

Where the driver of a carriage used to convey passengers
for hire left the horses unguarded and unhitched while a pas-
senger was inside and they ran away and the passenger was
injured while trying to jump out, the driver and owner were
held liable jointly or severally.1° Attempting to lead two
skittish horses attached to a buggy by means merely of a
halter fastened around the neck of the near horse was held
to be negligence.

The proprietors of a race-course are not liable for injuries

*” Tllidge v. Goodwin, 5 C. & P. 190.

** McCahill v. Kipp, 2 E. D. Smith (N. Y.) 413.
* Rompillon v. Abbott, 1 N. Y. Suppt. 662.

*8 Bigelow v. Reed, 51 Me. 325.

** Pearl v. Macaulay, 6 N. Y. App. Div. 70.

** Youmans v. Padden, 1 Mich. N. P. 127.

6 Pickens v. Diecker, 21 O. St. 212.

HORSES UNGUARDED IN HIGHWAY. 327

caused by the running away of a spectator’s horse, left un-
guarded upon their grounds.'%

A carriage is “passing” upon a highway where, in the
course of a journey from one place to another, it is at a stand-
still, and the driver is liable to the statutory penalty if negli-
gently or wilfully he is at such a distance that he cannot have
the direction and government of the horses.1°°

The question of contributory negligence is often an im-
portant one in these cases. Where the defendant negligently
left his horse and cart unattended in the street and the plain-
tiff, a child seven years old, got into the cart to play, and an-
other child led the horse on, whereby the plaintiff was thrown
out and hurt, the defendant was held liable. “The most
blamable carelessness of his servant having tempted the child,
he ought not to reproach the child with yielding to that temp-
tation. He has been the real and only cause of the mis-
chief.” 1°

Where a servant unlawfully left his master’s horse and
wagon unhitched in the street and the horse strolled away and
upset a ladder erected in the middle of the street upon which
the plaintiff was working, the failure of the latter to have the
ladder guarded was held not to be such contributory negli-
gence as would bar recovery from the master.1!°

Where an unattended horse and cart collided with an un-
attended horse and van and no one saw the accident, it was
held error to withdraw from the jury the question of contrib-
utory negligence.4

An ordinance making it unlawful for animals to run at large

* Hart v. Washn. Park Club, 54 Ill. App. 480, affirmed in 157 III. 9.

* Phythian v. Baxendale, [1895] 1 Q. B. 768.

* Lynch v. Nurdin, 1 Q. B. 20.

Whether, where one leaves a horse unattended to and a child creeps
under the wagon and the owner returning drives off and injures the child,
the former act is the proximate cause of the damage, see Morrison v.
M’Ara, 23 Rettie (Sc. Ct. Sess.) 564.

4° Jones v. Belt, 8 Houst. (Del.) 562.

“1 Walton v. London, B. & S. C. R. Co., 1 H. & R. 424.

328 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

on public streets which the residents had improved by con-
structing boulevards, etc., except under the care of a com-
petent person and secured by a rope, etc., was held not invalid
as depending upon the will of the residents whether they
construct boulevards or not, as it was not the validity, but the
application of the ordinance that so depended. Whether a
stick or whip in the driver’s hands was a “device” for controll-
ing, as contemplated by the ordinance, was held not to be a
question of fact for the jury, but of law for the court."

86. Liability in Case of Horses Running Away.—This ques-
tion has been partially discussed in the preceding section.
As a general rule it may be stated that the owner or driver
of a team of horses running away is not responsible for a col-
lision or other injury resulting therefrom unless there has
been fault or negligence on his part.142 In a Connecticut
case it is said: ““A man driving furiously along the street runs
into my carriage and breaks it. Here the act indicates negli-
gence on the part of the driver. Again, the defendant’s horse
is running furiously along the street, dragging the shafts of
a carriage after him, and runs against and breaks my carriage.
This indicates accident only, and not negligence. It isa mere
matter of human presumption in each case. The common
judgment of mankind would see in the one case a prima facie
case of culpable negligence—in the other only of sheer acci-
dent. Now in suits brought for damages done in these cases,
if the plaintiff should prove only the fact of collision and the
defendant should offer no evidence whatever, the court
ought to charge the jury that the burden of proof is not in

*? Chamberlain wv. Litchfield, 56 Ill. App. 652.

™’ Boyle v. McWilliams, 69 Conn. 201; Bennett v. Ford, 47 Ind. 264;
Robinson v. Simpson, 8 Houst. (Del.) 398; Brown v. Collins, 53 N. H.
442; Shawhan v. Clark, 24 La. Ann. 390; Hall v. Huber, 61 Mo. App. 384;
Short v. Bohle, 64 id. 242; Gougeon v. Contant, 5 Leg. News (Can.) 182;
McWillie v. Goudron, 30 Low. Can. Jur. 44; Quebec v. Picard, Rap. Jud:
Quebec, 14 C. S. 94; Hammack v. White, 11 C. B. N. S. 588; Manzoni v.
Douglas, 6 Q. B. D. 145; Wakeman v. Robinson, 8 Moore 63.

HORSES RUNNING AWAY. 329.

either case thrown upon the defendant as matter of law, but
that the plaintiff is to recover or not, according as they shall,
in the exercise of their judgment, consider the acts as in
themselves indicating or not indicating negligence on the
part of the defendant. The failure of the defendant to offer
any explanatory evidence may operate to strengthen the
plaintiff’s case, but it must always be in a case where the act
done carries in itself an indication of negligence or, in other
words, creates a presumption of fact, not of law, that the de-
fendant has been guilty of negligence.” 114

But the mere fact that the horse was running away raises in
itself no presumption of negligence.4® “Ifa horse is running
away with his driver, there is nothing in the fact itself which
tends to show negligence in the driver or which tends to show
how the horse became unmanageable any more than a house
on fire tends to show the origin of the fire, whether accidental
or otherwise, and it would seem that it could as well be inferred
in such a case that the party residing in the house was guilty
of negligence in causing its destruction, in the absence of ex-
planatory evidence showing the contrary, as it can be inferred
from the mere fact that a horse is running away that the
driver is guilty of negligence in causing his running, in the
absence of proof to the contrary. If such a doctrine should
be established as the law, it is not easy to see to what extent
it might not be carried.” 11° The fact that the runaway horse

™ Button v. Frink, 51 Conn. 342, 351.

*° O’Brien v. Miller, 60 Conn. 214; McMahon v. Kelly, 9 N. Y. Suppt.
544; Gray v. Tompkins, 15 id. 953; Gottwald v. Bernheimer, 6 Daly
(N. Y.) 212.

See Hummell v. Wester, Bright. (Pa.) 133; Cadwell v. Arnheim, 152
N. Y. 182.

*° Button v. Frink, supra. The case of Unger v. 42d St. & Grand St.
Ferry R. Co., 51 N. Y. 497, and Strup v. Edens, 22 Wis. 432, are thus
commented upon: “In both these cases the court held that the fact that
the horses were running unattended in the public street, afforded some
evidence that the horses had been left either unfastened in the public
street or improperly and negligently secured. Manifestly this is an in-
ference which could not be drawn in the case at bar.”

330 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC.

had been left unattended may, however, show negligence
prima facie so as to shift the burden of proof to the defend-
ant.147_ And the fact that a team is found running away with-
out a driver requires some explanation, and if the driver does
not testify, or his absence is not accounted for, it is fair to
presume that no satisfactory explanation could have been
given.118

Where there was evidence that the horses had been used for
more than six weeks and were considered safe and that the
driver, though not well, was not unable to perform his duties,
there was held to be no evidence of negligence.119

Where the plaintiff introduced evidence to show that the
defendant’s horse had run away a year and a half before, the
defendant was held entitled to show that a horse which has
not run away for that length of time requires no more care
than if had never done so.12° And in the New York Court
of Appeals it was held, reversing the judgment of the lower
court, that the fact that a pair of ordinarily gentle horses on
one occasion ran away through fright naturally following
from the conduct of third parties, does not of itself show a
vicious propensity, nor does the knowledge thereof render
the owner liable, in the absence of negligence, if he thereafter
used them and they again ran away. The court said: “The
use of horses is very general. That they may on an occasion
escape from the control of their driver and run away is not
an uncommon experience. Must the owner, after such an
occasion, stop using them, except under the onerous burden
of absolute liability, if they shall! run away a second time and
cause injury? It may be admitted, as suggested on the trial,

™ Doherty v. Sweetser, 82 Hun (N. Y.) 556; Norris v. Kohler, 41 N. Y.
42; Pearl v. Macaulay, 6 N. Y. App. Div. 70. And see the opinion in But-
ton v. Frink, quoted in the last note.

"° Maus v. Broderick (La.), 25 South. Rep. 977.

™ Quinlan v. Sixth Ave. R. Co., 4 Daly (N. Y.) 487.

™ Donnelly v. Fitch, 136 Mass. 558.

The fact that a horse shies occasionally does not necessarily show neg-
ligence: Young v. Cowden, 98 Tenn. 577.

HORSES RUNNING AWAY. 331

that horses that have once run away are less safe thereafter.
This may bear upon the degree of care which should be exer-
cised by the owner in their management. But does it place
the horses under the ban of the law and make the owner lia-
ble, in the absence of negligence, if he uses them thereafter,
and they again run away and cause injury? It may very well
be that horses may be so unmanageable that they cannot be
driven in the public streets without manifest danger. If this
was established in a particular case, we see no reason why
their use by the owner, with knowledge of their vicious char-
acter, should not make him responsible for any consequent
injury... . The cause of the running away of the horses on
both occasions was fright, naturally following from the con-
duct of third persons, for those acts the defendant was not
responsible, and the fact that defendant knew of the circum-
stances of the first runaway did not, we think, justify the sub-
mission to the jury of the question whether the horses were
vicious or dangerous or unsafe to be used in driving along
the street.” 121

The lack of ordinary care must be proved to entitle the
plaintiff to recover, and greater care is required where the
horse is near a throng of people than where it is in a less fre-
quented place. To show the use of ordinary care, the de-
fendant was held entitled to introduce evidence of the direc-
tions of one servant to another respecting the management
of the horse just before its running away.!??

One whose servant so negligently drives in a public street
as to come into collision with a carriage and cause the horses
drawing it to take fright and run away, is liable in damages
to one who is injured by the runaway horse.’** But where

™ Benoit v. Troy & L. R. Co., 154 N. Y. 223.

See Doyle v. Detroit Omnib. Line Co., 105 Mich. 195, cited in § 85,
supra.

™ Sullivan v. Scripture, 3 Allen (Mass.) 565.

*8 McDonald v. Snelling, 14 Allen (Mass.) 290. And see Thomas v.
Royster, 98 Ky. 206; Langlois v. Drouin, Rap. Jud. Quebec, 13 C. S. 49.

332 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC,

there was no negligence in the servant, the defendant who
was with him at the time was held not liable in trespass for
a personal injury to the plaintiff from the horses becoming
unmanageable.1**

Where two teams going the same way collided and a per-
son behind the front team was upset and killed, this was held
to be due to the negligence of the driver of the colliding team,
even if the horses of the other team could have been checked
by the driver when running away; otherwise if the latter
driver had done some act, not merely negligence, contributing
to the running away.175

Where a street car driver after stopping his car on a busy
street, detached the horses and swung them around without
observing whether any teams were approaching, and a col-
lision occurred and the horses were frightened, ran away and
injured the plaintiff, the driver was held to be negligent.1?¢
But such a driver is not necessarily negligent in allowing the
horses to follow their usual route instead of making them
keep straight on.1?7

Where the plaintiff was upon the rear platform of a street
car and about to enter it, when the driver whipped up to avoid
a collision with a runaway horse and carriage and the jolt
threw the plaintiff to the ground and she was struck and in-
jured by the runaway, it was held that the court should have
instructed the jury that, even if the car-driver was guilty of
negligence, such negligence was not the proximate cause of
the injury and the plaintiff could not recover. “It was cer-
tainly not a natural consequence of a person being upon that
street that he would be struck by a runaway horse. Nor is
there the slightest reason for saying that it would be a prob-
able consequence. The utmost that can be said would be that
such a consequence might possibly happen.” 128

™ Holmes v. Mather, L. R. 10 Ex. 261. ™ Belk v. Peo., 125 Ill. 584.
“ Sutter v. Omnibus Cable Co., 107 Cal. 360.

™ Rainnie v. St. John City R. Co., cited infra.

* South Side Pass. R. Co. v. Trich, 117 Pa. St. 300.

HORSES RUNNING AWAY. 333

A street car company is responsible for injury to a passen-
ger from the horses being frightened by a train and running
away, where the horses are unsuitable for the course.1**

Negligence in not checking and getting under control a
team driven at reckless speed through the street and colliding
with a foot passenger, was held as a matter of law not to be
rendered a remote cause by the fact that the person was struck
by the horse shying at an elevated railroad train. ‘The acci-
dent is attributable to both or either and it is for the jury to
determine which of them is the proximate cause.” 13°

Where the defendant’s horse ran away through his negli-
gence, the fact that the crowd hallooed and tried to stop it,
thus making it swerve and do damage, will not relieve the de-
fendant. “The rule of law is well settled that where the plain-
tiff has been injured in his person or property by the wrong-
ful act or omission of the defendant, or through his culpable
negligence the fact that a third party, by his wrong or negli-
gence, contributed to the injury, does not relieve the defend-
ant from liability.” 131

A street car company must use reasonable care in selecting
its horses and ascertaining whether they are safe for such use,
and the fact that a passenger is riding on the front platform
is not the proximate cause of an injury received as he is try-
ing to alight by being kicked by the horses through whose
fright the car had been thrown off the track.13?

But where a street car horse ran away and struck a post,

* Rainnie v. St. John City R. Co., 31 N. B.-582, where it is said: “It
is not essential (as in insurance cases) that the proximate cause shall alone
be regarded. It is sufficient if an efficient cause of the thing complained
of is found in some tortious acts of the defendant. Here the accident is
found to have been caused by a negligent act of defendants, namely, the
employment of horses unsuitable for the route they were placed on.”

* Van Houten v. Fleischman, 20 N. Y. Suppt. 643.

*" Griggs v. Fleckenstein, 14 Minn. 81.

* Noble v. St. Joseph & B. H. St. R. Co., 98 Mich. 249. And see
Rainnie v. St. John City R. Co., supra.

334 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

frightening a woman so as to bring on a nervous disease, the
company were held not responsible for the sickness.1**
Where the defendant’s horse through his servant’s negli-
gence ran away and turned into the defendant’s yard, and the
plaintiff’s wife, who was paying a visit, came out to see what
was the matter and was injured, it was held that as the de-
fendant’s servant was not bound to anticipate that the plain-
tiff’s wife would be in the yard, there was no duty towards her
on the defendant’s part, and therefore he was not liable.134
While a person insured under an accident policy was driv-
ing, his horse became frightened by an object on the street
and ran away without upsetting the carriage or coming into
contact with anything before he was brought under the
driver’s control. The person was apparently in great danger
at the time and suffered so severely either from fright or the
strain caused by the physical exertion in restraining the horse
that he died within about an hour afterwards. It was held that
death might be considered as having ensued from bodily in-
juries effected through external, violent and accidental
means. “If it is to be admitted that death was caused
through fright, even then we are just as strongly convinced
that it was also caused by external means. Whether one
thing or another shall be considered the proximate cause, de-
pends upon the relation of the parties to the suit with each
other, as well as upon other circumstances. If the death be
laid to fright, it must be because fright produced bodily in-
jury, and the means which produced fright were external.” 135
Where the defendant tied his horses for a blacksmith to
shoe and then went away, and the blacksmith began to shoe

* Lehman v. Brooklyn City R. Co., 47 Hun (N. Me) SSS%

™ Tolhausen v. Davies, 58 L. J. Q. B. 08.

*° McGlinchey v. Fidelity & Cas. Co., 80 Me. 251.

Death from the sting of an insect is effected through “external, violent
and accidental means,” and the sting is the proximate cause of death re-
sulting from blood poisoning: Omberg v. U. S. Mut. Assn. (Ky.), 40
S. W. Rep. 909.

HORSES RUNNING AWAY. 335

the horse, which pulled the halter off and ran away and in-
jured the plaintiff, it was held that the latter could not re-
cover. “If the horse had bolted before the blacksmith had
taken charge of it, the insufficiency of the tying would be
evidence in support of the charge against the defendant. But
the defendant was not a servant of the blacksmith to tie the
horses for the purpose of shoeing them. The defendant’s ob-
ligation ceased, that of the blacksmith’s began, as soon as the
latter took charge of the horses. The defendant would not
be liable as owner of the horse, unless the horse was vicious
and that fact was known to the defendant and the injury to
the plaintiff had been caused by the vice of the animal.” 186

Where an injury was caused by the defendant’s horse shy-
ing and coming into contact with a street-organ and the de-
fendant knew that the horse became restive at the sound of
an organ, he was held guilty of prima facie negligence in
driving it in a town where such organs abounded, without
taking due precautions against accident, which presumption
must be rebutted by his showing that he had taken all pos-
sible precautions.137

Where knowledge of the horse’s disposition must be shown,
the knowledge of the husband will be imputed to the wife.1%8
Where the defendant was intoxicated and fell asleep in his
sleigh and his horses ran away and injured the plaintiff's
horse, it was held that trespass and not case was the proper
form of action.!%®

Contributory negligence may, of course, defeat recovery;
but one who enters a carriage knowing that the team is un-
safe or dangerous does not thereby assume the risk arising
from the driver’s negligence.4° And the passenger on a
ferry-boat on which there were no animals or vehicles was

6 Maxwell v. Cooke, 9 Austral. Law Times 92, cited in 22 Ir. L. T. 361.
*7 Mella v. Baston, 72 L. T. 318.

*8 Huntoon v. Trumbull, 2 McCrary C. Ct. (U. S.) 314.

*° Waldron v. Hopper, 1 N. J. L. 389.

™ Smith v. Team (Miss.), 16 South. Rep. 402.

336 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

held not guilty of negligence in starting to pass from the boat
by the way used by vehicles which had been opened to pas-
sengers by those in charge, so as to prevent his recovery for
an injury received from a runaway horse which had bolted
into the ferry-house and on to the driveway.’** Where the
plaintiff’s horse became frightened by a collision with the de-
fendant’s team, and the plaintiff seized the bridle rein of the
horse to keep him from running away, and in so doing was
injured by the horse, he was held not to be negligent, as a
matter of law, nor could the proximate cause be said to be
some act intervening between the collision and the injury.'**

In an action for an injury to goods on a sidewalk by a run-
away horse, it was held no defence to show an ordinance pro-
hibiting the placing of wares on the pavement.'**

The subject of the present section has been thus admirably
summed up in an article in the Solicitors’ Journal: “Of course
there are cases where the question of negligence may arise,
though the damage is the result of the volition of animals. If
the known character of the animal is such that mischief that
arises may be expected and foreseen, of course the duty of
using a greater amount of precaution to prevent it may arise.
A man driving a vicious bull along a street or letting a dog
of known bad character be at large cannot rely on the fact
that the damage was done by the animal sua sponte. So in
the old case of Mitchil v. Alestree (1 Vent. 295) where the
defendant took an unbroken horse into Lincoln’s Inn Fields
for the purpose of breaking the horse, and the horse was so
unruly that he broke from the defendant and ran over the
plaintiff, the defendant was held liable. The question will
always arise in cases with regard to animals, whether there
is any negligence in the use of the animal for the purposes
for—and under the circumstances in—which it was used,
having regard to the character of the animal. This must be

“Watson v. Camden & A. R. Co., 55 N. J. L. 125.
™ Willis v. Providence Telegram Pub. Co. (R. I.), 38 Atl. Rep. 947.
*8 Gannon v. Wilson (Pa.), 2 Cent. Rep. 305.

HORSES RUNNING AWAY. 337

a matter of degree. As to the use of an unbroken horse in
a crowded public thoroughfare, there could be little doubt.
If a horse, which, though broken, could be proved to be of
a very restive character, were taken into a similar place, a
more doubtful question might arise. But with regard to
horses of ordinary temperament, constant experience shows
that there is little danger from the use of them, and it is there-
fore a reasonable use of the highway to employ them for
traffic. ... We are not a little puzzled sometimes by the
law of animals, and doubt whether it can be reduced to an
altogether logical basis. A man, it would appear, is abso-
lutely liable in trespass for the act of his beast, such as a
bullock, in trespassing on a neighbor’s land, apart from any
question of negligence. In other words, he is bound to keep
his animal in. Therefore I am liable for the spontaneous act
of my animal if he trespass against my neighbor’s land, but
not if he trespass against my neighbor’s person, unless I by
negligence have conduced to the latter mischief. This may
at first seem anomalous. . . . The answer, as it seems to us,
is that there is a radical difference between the case of tres-
pass to a person’s land, or to himself upon his own land, and
to himself when using the highway. ... The highway is
for the reasonable use of all persons according to the ordinary
practice and usages of life and business, and a man using it
takes a certain amount of risk of accident, whereas he is en-
titled to a more absolute security on his own land. We have
been dealing rather with acts done by animals not induced by
any apparent external cause, but the question may give rise
to difficulty, how far and under what circumstances any lia-
bility rests upon the owner of an animal which does an act,
being impelled thereto by unusual circumstances of which
the owner is not the cause. Take, for instance, the case of a
horse frightened by a fire and running away. Perhaps a fire
is to be considered a reasonable cause for any animal’s run-
ning away; but take some small cause such as would only

make a very spirited or nervous horse run away, then a more
22

338 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

difficult and complex question arises, viz.: as to whether it
was negligence to bring such an animal into the place where
he was being used, in the sense that, if any mischief arises, the
owner ought to pay for it.1#* These are questions of much
nicety and largely questions of degree. We do not think
that there has ever been much attempted by way of system-
atizing the law with regard to these subjects and others of a
similar nature, and perhaps it is impossible to do so.”’ 145

87. Damage Done in Highways by Passing Animals.—The sub-
ject of liability for injuries committed by animals straying
from the highway has been already considered.1*#® Where
the injury is committed in the highway, the question is largely
one of negligence in the owner or person in charge of the ani-
mal. Thus ina Rhode Island case it is said: “We agree with
the Pennsylvania and New York cases that a horse, even
though he is not vicious, is a dangerous animal to be at large
in the frequented streets of a city. We think, however, that
the learned judge who tried this case with the jury went too
far when he instructed the jury that the defendant, if his horse
caused the injury, was absolutely liable for it, without regard
to whether the horse’s presence in the highway was attribu-
table to his negligence or not.” 447 So, one driving another’s
cattle carelessly in a highway is responsible for the damage
they do, and the owner is not liable unless the driver was act-
ing as his servant.1** And where the driver is employed by
one who exercises an independent employment, he is not a
servant of the owner.!!9

Where a bull driven through a street became excited by a
noise and broke loose in consequence of a latent defect in the
nose-ring by which it was led, it was held that the leader was

™ See Mella v. Baston, supra. “25 Sol. Jour. 385.

™° See § 75, supra. ™ Fallon v. O’Brien, 12 R. I. 518.

“Smith «7. French, 83 Me. 108. And see Pfaffinger v. Gilman (Ky.),
38 S. W. Rep. 1088; Clowdis v. Fresno Flume & Irrign. Co., 118 Cal. 318.

™ Milligan cv. Wedge, 12 A. & E. 737.

DAMAGE IN HIGHWAYS BY PASSING ANIMALS. 339

not responsible for the resulting damage if he used the pre-
cautions which are usual and reasonably safe under the cir-
cumstances, even though there are other methods of remov-
ing bulls which are more secure and well known.1°° Where
a cow, led by one man, was startled and became tunmanage-
able in consequence of smelling the blood in a slaughter-house
from which she was being taken, the owner was held liable
for the damage done.1*?

It was held not negligence per se to permit a boy fifteen
years old to drive a cow in the highway, whereby a collision
was caused and the plaintiff injured.1>?

Where an animal is running at large in the highway con-
trary to an ordinance, the city is not responsible for any dam-
age done ;!** unless it could have prevented the same by or-
dinary care and diligence or the owner has been in fault.1*+
One racing horses on the street is liable for injury to others,
whether or not racing often takes place with the consent of
the city officials.*”®

Where a horse going at large on a sidewalk kicks a person,
it is immaterial whether its act was vicious or merely playful:
the owner is liable in either case.1°°

It is sufficient in such cases to show that the road is used
by the public as a highway: it is not necessary to show that
it was legally established.1°*’ A turnpike road is a highway
within the statutory sense.1°8

“° Harpers v. Great North of Scotland R. Co., 13 Rettie (Sc. Ct. Sess.)
1130.

1 Phillips v. Nicoll, 11 Rettie (Sc. Ct. Sess.) 592.

#2 Smith v. Matteson, 41 Hun (N. Y.) 216.

18 Levy v. N. Y. City, 1 Sandf. (N. Y.) 465.

* Cochrane v. Frostburg, 81 Md. 54.

*5 Hanrahan wv. Cochran, 12 N. Y. App. Div. 91. And see Osborn v.
Jenkinson, 100 Ia. 432.

* Dickson v. McCoy, 39 N. Y. 400.

“1 Meier v. Shrunk, 79 Ia. 17.

#8 Pickard v. Howe, 12 Metc. (Mass.) 198; Gilmore v. Holt, 4 Pick.
(Mass.) 258.

340 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

88. Diseased Animals; Sale—\Vhere animals are sold which
are to the knowledge of the seller afflicted with a contagious
disease of which the purchaser is kept in ignorance, the latter
may rescind the contract.°® And an agent will render his
principals civilly liable though they are ignorant of his fraud
in selling the diseased animal.'® If the disease is one not
easily detected by those having no experience of it and the
seller does not disclose it, he is guilty of fraudulent conceal-
ment of a latent defect for which he must answer: the rule of
caveat emptor does not apply.

Where a statute prohibited persons from sending animals
affected with a contagious disease to market and inflicted pen-
alties on one so doing, the action of knowingly sending them
was held to be a public offense but not to amount by implica-
tion to a representation that they were sound so as to give
a purchaser a right to a remedy by action.7®* In this case
the seller made a statement in writing that he would not war-
rant the goods, that they were open to inspection and that
the purchaser must take them with their faults; but in a later
case it was said by Lord Blackburn that where the owner of
an animal takes it to a public market for sale, this furnishes
evidence of a representation on his part that it is not, so far
as he knows, suffering from any infectious disease.1®* To
bring a horse infected with glanders into a public place to the
danger of infecting the people is an indictable misdemeanor
at common law, although the defendant may not have been
aware that the disease is so communicable.1** But the fraudu-
lent sale of a horse by one knowing it has a contagious disease
like glanders to one ignorant thereof, will not render the seller

*° Wintz v. Morrison, 17 Tex. 372; Budd v. McLaughlin, 10 Ma. 75.
As to the sale of diseased animals for food, see § 20, supra.

® Jeffrey v. Bigelow, 13 Wend. (N. Y.) 518.

™ Grigsby v. Stapleton, 94 Mo. 423.

*“ Ward v. Hobbs, 4 App. Cas. 13.

*° Bodger v. Nicholls, 28 L. T. N. S. 44.

** Reg. v. Henson, Dears. C. C. 24.

DISEASED ANIMALS; SALE. 341

liable for the death of one contracting the disease while taking
care of the horse for the purchaser unless the death is the
natural and probable consequence of coming into contact
with the horse.*® Where an act provided that anyone sell-
ing an infected animal, respecting which there was a cause
of suspicion, should incur a penalty, and the defendant sold a
glandered horse without warranty, concerning which the trial
judge found that he had no cause of suspicion, it was held in
an action for damages that he was not liable, and that, even
if there had been a breach of the statutory duty, the rule of
caveat emptor would apply.1%* But in a civil action to recover
damages for the violation of an act to prevent the spread of
contagious diseases among swine, it is not necessary to allege
or prove that the defendant has been convicted in a criminal
prosecution for a violation of the act.1%"

Under the Iowa code the fact that the buyer of sheep in-
fected with a contagious disease knew thereof will not pre-
vent the sale from being invalid; but it is otherwise where the
seller did not know.1®* To constitute the offense of killing
and selling a diseased animal the meat must be sold for food,
with knowledge of the seller that it is bad, and the indictment
should state those facts.1®

The damages must not be too remote, and in an action for

8 State v. Fox, 79 Md. 514, where it was held that glanders is not a
disease so frequently taken by men that the court should es judicial
notice of its character.

That an action for damages for offering to trade a glandered horse
cannot be maintained where the trade was made on Sunday, see Gunder-
son v. Richardson, 56 Ia. 56.

** Rothwell v. Milner, 8 Ma. 472.

Under an act against frauds in the supplying of milk to cheese manu-
facturers, the physical condition of the milk supplied is the test, irrespec-
tive of the intent: Reg. v. McIntosh, 33 Can. L. Jour. 246.

*7 Conard v. Crowdson, 75 Ill. App. 614, where it was also held that the
common-law right of action had not been superseded by the statute, the
remedy under which must be considered cumulative.

*8 Caldwell v. Bridal, 48 Ia. 15.

And, as to the Wisconsin statute, see Newell v. Clapp, 97 Wis. 104.

Schmidt v. State, 78 Ind. 41.

342 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC.

the fraudulent sale of diseased sheep to the plaintiff as sound
and healthy, the refusal of a person to purchase from him in
performance of a contract by reason of the disease, and the
refusal of his customers to deal with him in consequence of
the report, cannot be considered in estimating the dam-
ages.17°

Where the seller knowingly represents or warrants the ani-
mal to be free from contagious diseases, when it is not so, he
is liable for the resulting injury to other animals,” even
though he did not know that the purchaser had other animals
or intended to bring them together.17* In an English case,
the defendant was held liable if, at the time he sold the dis-
eased cow, he knew that the plaintiff was a farmer and would
or might place it with others.17

Where sheep sold, under a warranty that they are sound
and healthy, have an infectious disease, the resulting injury
to lambs dropped soon after the purchase is a proper item of
damages.17* And where all the animals in a herd are sold
with warranty, and some of them are affected with a con-
tagious disease, the buyer is not confined in his recovery to
the value of those originally diseased.1**° And where the
stock are rendered absolutely worthless, the defect is covered
by an implied warranty and the purchaser may recover the
purchase price of all the stock lost and the expenses reason-
ably incurred in quarantining and doctoring the stock.1"®

Where the purchaser of a horse sent him back to the seller
on the ground that he did not comply with the warranty.

© Crain v. Petrie, 6 Hill (N. Y.) 522.

™ Mullett v. Mason, H. & R. 779; Stevens v. Bradley, 89 Ia. 174: Joy
v. Bitzer, 77 id. 73; Faris v. Lewis, 2 B. Mon. (Ky.) 375; Greenby v.
Brooks, 13 Ky. L. Repr. 208; Jeffrey v. Bigelow, 13 Wend. (N. Y.) 518;
Lewis v. Bracken (Ga.), 22 S. E. Rep. 943.

™ Sherrod v. Langdon, 21 Ia. 518; Packard v. Slack, 32 Vt. 0.

8 Smith v. Green, 1 C. P. D. 92. ™ Broquet v. Tripp, 36 Kan. 7oo.

** Bradley v. Rea, 14 Allen (Mass.) 20; Marsh 7. Webber, 16 Minn. 418;
Wintz v. Morrison, 17 Tex. 372.

*¢ Snowden v. Waterman (Ga.), 31 S. E. Rep. 110.

DISEASED ANIMALS; SALE. 343

which was not the fact, and the horse while in the purchaser's
stables had contracted a contagious disease, of which he was
not aware, and the seller’s horse caught this disease and died,
it was held that the seller could not recover for the loss of his
horses, there being no fraud and no evidence of warranty, but
each party was directed to bear his own costs, the case being
a hard and exceptional one.t77 In order to prevent the
spread of a contagious disease, it was held sufficient that the
plaintiff should use “reasonable diligence and care to obtain
and apply such remedies and relief as the experience and
knowledge of sheep men in that community afforded him.” !7®

89. Diseased Animals; Transportation and Liability in General.
—The liability of a railroad company for the consequences of
transporting animals affected with a contagious disease is the
same as that of an individual.17? Thus it is liable where it
drives cattle on a public highway after receiving notice of
their diseased condition.18° But where the owner drives the
cattle into another county such new transportation is an in-
dependent offense for which the railway company is not lia-
ble.'§1 Where it is liable by statute for diseases communi-
cated to cattle “in the neighborhood or along the line’’ of
transportation, it was held not liable where the diseased cattle
were sent by the consignee to the plaintiff's farm, two miles
from the railroad, under a contract with the plaintiff for pas-
turage, and his cattle there caught the disease.18* The statu-
tory liability is not absolute: the injury is only a prima facie

™ Wright v. Hetton Downs Co-op. Soc., 1 C. & E. 200.

*® Sherrod v. Langdon, 21 Ia. 518.

*° Chic. & Alton R. Co. v. Gasaway, 71 Ill. 570.

As to what in England is “causing, directing or permitting the move-
ment” of diseased animals in contravention of local regulations, see Mid-
land R. Co. v. Freeman, 12 Q. B. D. 629; Williams v. Gt. West. R. Co.,
52 L. T. N.S. 250.

*° Mo. Pac. R. Co. v. Finley, 38 Kan. 550.

*1 Surface v. Hannibal & St. J. R. Co., 60 Mo. 216; 63 id. 452.

* Coyle v. Chic. & A. R. Co., 27 Mo. App. 584.

B44 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

cause of action, which may be rebutted by showing freedom
from negligence.'®?

There have been a number of decisions as to the validity
of statutes regulating the transportation of cattle affected
with Texas fever. In a United States case a statute which
prohibited the bringing of any Texas, Mexican or Indian cat-
tle into a State between March 1 and December I in any year,
and provided that, if they passed through the State on board
of cars or steamboats, the carrier should be liable for all the
contagion spread by them—was held void. The Supreme
Court took the ground that while a State may prevent per-
sons or animals suffering from a contagious or infectious dis-
ease from entering its borders, and, for that purpose, estab-
lish reasonable quarantine and inspection laws, it may not in-
terfere with transportation into or through the State beyond
what is absolutely necessary for its protection, or, under cover
of exercising its police power, substantially prohibit or bur-
den either interstate or foreign commerce.’** This case has
been followed in some of the State courts.1® Its effect has
been somewhat modified, however, by a later case, where it
was held that a statute making persons having in their pos-
session Texas cattle which have not been wintered north lia-
ble for any damage which may accrue from permitting them
to run at large and thereby spread the Texas fever—was not
unconstitutional. The Supreme Court said that the decision
in Hannibal & St. J. R. Co. v. Husen rested upon the ground
that no discrimination was made by the statute in the trans-
portation forbidden between sound cattle and diseased cattle,
that no attempt was made to show that all Texas, Mexican or
Indian cattle coming from the malarial districts through the

*8 Farley v. Chic., M. & St. P. R. Co., go Ia. 146.

** Hannibal & St. J. R. Co. v. Husen, 95 U. S. 465.

*© Gilmore v. Hannibal & St. J. R. Co., 67 Mo. 323; Urton v. Sherlock,
75 id. 247; Salzenstein v. Mavis, 91 Ill. 391 [overruling Yeazel v. Alex-
ander, 58 id. 254]; Chic. & A. R. Co. v. Erickson, gt id. 613.

A law declaring it to be unlawful to bring sheep into the State without
having them dipped discriminates between persons who may desire to

DISEASED ANIMALS; TRANSPORTATION, ETC. 345

summer months were infected with the disease or that such
cattle were so generally infected with it that it would have
been impossible to separate the healthy from the diseased—
upon proof of which a general question might have been pre-
sented for the consideration of the court. The court added
that certainly all animals thus infected may be excluded from
the State by its laws until they are cured of the disease or
some safe means of transportation is devised.1®®

In a late Missouri case it was held that a statute forbidding
the transportation through Missouri of Texas or other cattle
affected with Texas fever, was void as an interference with
interstate commerce, but that a State may prevent the im-
portation of such diseased cattle into its territory or prescribe
the kind of cars in which they may be transported through the
State and such other precautionary measures as may be rea-
sonably necessary. It was also held that to make a railroad
company liable for cattle catching disease by treading over
the ground after diseased cattle, it must be shown that they
knew such an act would communicate disease and that the
diseased animals escaped through their negligence. Courts
will take judicial notice of the fact that Texas cattle have some
contagious or infectious disease communicable to native cat-
tle [overruling the earlier case of Bradford v. Floyd 187].
“Scientific investigation has demonstrated, and it is now a
matter of general information or knowledge that Texas cattle
are not, in fact, diseased themselves so as to render them un-
healthy for food, but that all Texas cattle are infected in their
systems with a parasite or germ, which is harmless to them
but which, when taken into the stomach by native cattle, pro-
duces what is known as Texas fever.” *88

bring sheep into the State and those who have sheep within the State, and
is unconstitutional: State v. Duckworth (Ida.), 51 Pac. Rep. 456.

* Kimmish v. Ball, 129 U. S. 217. And see Mo., K. & T. R. Co. wv.
Haber, 169 id. 613.

*T 89 Mo. 207. And see Patee v. Adams, 37 Kan. 133.

#8 Grimes v. Eddy, 126 Mo. 168. And see Selvege v. St. Louis & S. F.
R. Co., 135 id. 163.

346 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

Concerning the advisability of framing such statutes it is
said in a Kansas case, “We shall assume for the purposes of
this case that the . . . ‘Texas cattle law’ is constitutional and
valid. . . . There certainly is a great necessity for some such
law. If that class of men who care nothing for the rights of
others were allowed by law to bring cattle to Kansas from
Texas and the Indian country whenever they might choose,
and thereby spread disease and death among our native cattle,
it would either make cattle-raising in Kansas so hazardous a
business that but few men would wish to engage in it, or it
would lead to such concerted force, and possibly mob vio-
lence, that those who care nothing for the rights of others
would hardly dare to bring their Southern, death-disseminat-
ing cattle among the native cattle of this State. There are
several differences between this act of the legislature of Kan-
sas and a similar act of the legislature of Missouri, which the
Supreme Court of the United States, in the case of R. R. Co.
v. Husen, 95 U. S. 465, declared unconstitutional and void,
and, with these differences, the Supreme Court of the United
States would perhaps declare the act of the legislature of Kan-
sas constitutional and valid.’’ 18°

The management of cattle domiciled in a State is regulated
by State laws, not by the act of Congress of May 29, 1884,
unless the State has determined to co-operate with the Secre-
tary of Agriculture in the execution of the act. The latter

That a statute assuming this latter fact does not require the jury to be-
lieve without evidence that the disease is thus communicated, see Davis
v. Walker, 60 Ill. 452. As to what is an unloading of diseased matter that
will make a railway company liable, see Pike v. Eddy, 53 Mo. App. 505;
Bradford v. Mo., K. & T. R. Co., 64 id. 475, cited in § 113, infra.

See also Mo., K. & T. R. Co. v. Haber, infra.

“ Stager v. Harrington, 27 Kan. 414, 410.

That an act of Congress establishing means for the suppression of dis-
ease does not interfere with the State statutes, see Mo., K. & T. R. Co.
v. Haber, 56 Kan. 694, affirmed in 169 U. S. 613. And acts preventing
the exportation of diseased cattle and permitting the owner of dead ani-
mals to dispose of them as he pleases, are not in substantial conflict: Cot-
ting v. Kansas City Stock Yards Co., 79 Fed. Rep. 679.

DISEASED ANIMALS; TRANSPORTATION, ETC. 347

has no power to make regulations as to the removal of cattle
from the State in which contagion exists to other parts of the
United States.1%°

A conditional ownership growing out of a lien will not
make one liable for damages for infection by Texas cattle un-
less he has the actual possession and control of the cattle.1!
Where several owners of different droves of cattle drove them
at different times over another’s herding ground, by reason
of which the latter’s cattle caught the disease, it was held that
there was no joint liability.1°* It is error to instruct the jury
that if cattle took a disease from one of two herds and the tes-
timony as to which herd is responsible is equally balanced,
they should find for the defendant, in an action against the
owner of one of the herds. If it is impossible to say that one
herd was more concerned than another, it seems the verdict
should be for the plaintiffs.!%

The entry of diseased cattle into another’s close by which
his cattle are infected is a trespass.1°* And where the sheep
of B. and C. were in the same pasture and A.’s sheep, getting
through an ill-kept division fence, infected B.’s sheep which
infected C.’s, it was held that C. could recover from A.,!® and
that the fact that one of the plaintiff’s sheep had communi-
cated the disease to the defendant’s sheep would not exone-
rate the latter from liability.°° But the owner of infected
sheep pasturing them in his own lot adjoining the lot of

Mullen v. Western Union Beef Co., 5 Colo. App. 497.

As to the sufficiency of an indictment for shipping a cow into a State
without sending the Secretary of Agriculture a certificate that it was free
from tuberculosis, see State v. Snell (R. I.), 42 Atl. Rep. 869. See, also,
Howman v. Angus, 25 Rettie (Sc. Ct. Justic.) 8.

™ Smith v. Race, 76 Ill. 490; Hatch v. Marsh, 71 id. 370. See, also,
§ 104, infra.

Veazel v. Alexander, 58 III. 254.

Frazee v. Milk, 56 Ill. 435; Newkirk v. Same, 62 id. 172.

™ Anderson v. Buckton, Strange 102.

*® Herrick v. Gary, 65 Ill. ror.

*® Same v. Same, 83 Ill. 85. And the plaintiff may recover though he
failed to treat the disease properly: Ibid.

348 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC.

another, also occupied by sheep, is not liable if the latter
sheep catch the disease.1%"

The owner of horses afflicted with a contagious disease has
no right to permit them to go at large in the highway or to
water them at a public tank used for watering sound horses,
and he should use prudence in placing them so far from a par-
tition between his and his neighbor’s stable that contact with
the latter’s animals is impossible.19°

Where the defendant, knowing a horse to be glandered,
delivers him to the plaintiff to be kept in the latter’s stable,
without telling him of the disease, and the latter’s horses catch
it, the defendant is liable.1°° So, where the defendant repre-
sents the horse to have recovered from distemper, knowing
that he still has it.2°° And where one was allowed to remain
on land as a mere licensee and his sheep were infected, and,
when he had gone, the owner moved on with his sheep, being
ignorant of the danger and assured by the other that there
was none, the licensee was held liable for the catching of the
disease by the owner’s sheep.?°!

With regard to scienter, the rule at common law is that if a
man knows an animal in his possession to be diseased and
allows it to stray and affect another’s cattle, he will be liable
to an action, although there is no special evidence of negli-
gence in reference to its straying, but that it is otherwise if
at the time the animal strayed he had no knowledge that it
was diseased: in that case he will not be liable, in the absence
of special evidence of negligence.2°? That knowledge of the
disease on the part of the owner or his agent must be shown

* Fisher v. Clark, 41 Barb. (N. Y.) 320.

Mills v. N. Y. & H. R. Co., 2 Rob. (N. Y.) 326, affirmed in 41
N. Y. 619.

™ Penton v. Murduck, 22 L. T.N. S. 371.

™ Fultz v. Wycoff, 25 Ind. 321, cited also, as to evidence of damages,
in § 107, infra.

* Eaton v. Winnie, 20 Mich. 156.

As to the liability of an agistor for contagion, see § 104, infra.

™ Garrett Nuisances, 170; Cooke v. Waring, 2 H. & C. 332.

DISEASED ANIMALS; TRANSPORTATION, ETC. 349

is generally laid down in the cases.2°* Where, however, the
action was brought for the trespass on the plaintiff’s land, the
defendant has been held chargeable with the consequent dam-
ages, such as communicating disease to the plaintiff’s animals,
without regard to his knowledge of the diseased condition of
his own animals,?°* though this may be shown to enhance the
damages, even if not alleged in the declaration.?%

Under an act of Congress imposing penalties on the trans-
portation of infected live-stock, it was held that actual knowl-
edge of the infection on the part of the defendant need not
be shown: it is sufficient that the stock come from a locality
known to be infected.?°®

The contributory negligence of the plaintiff is, of course,
a competent defence in actions of this kind.2°* ‘Thus where
the plaintiff negligently permits his cattle to come into con-
tact with those of the defendant, knowing the latter to be dis-
eased, he cannot recover ;?°8 nor where he keeps diseased cat-
tle after he knows of the disease ;?°9 nor where his fence is not
a sufficient legal fence and the diseased animals pass through
it.27° And where by the law of the State the owner of cattle
is not compelled to restrain them, he is not liable where they

*8 Nicholls v. Hall, L. R. 8 C. P. 322; Earp v. Faulkner, 34 L. T.
N. S. 284; Carroll v. Eivers, I. R. 7 C. L. 226; Hawks v. Locke, 139 Mass.
205; Bradford v. Floyd, 80 Mo. 207; Coyle v. Conway, 35 Mo. App. 490;
Patee v. Adams, 37 Kan. 133; Hite v. Blandford, 45 Ill. 9; St. Louis,
I. M. & S. R. Co. v. Goolsby, 58 Ark. 401; Clarendon Land Inv. & Ag.
Co. v. McClelland, 89 Tex. 483.

™ Lee v. Burk, 15 Ill. App. 651.

But see Clarendon Land Inv. & Ag. Co. v. McClelland, supra.

5 Barnum v. Vandusen, 16 Conn. 200.

7° Lynch v. Grayson, 5 N. M. 487, affirmed in Grayson v. Lynch, 163
U. S. 468. And see Croff v. Cresse, 7 Okla. 408.

*" Patee v. Adams, 37 Kan. 133.

8 Coyle v. Conway, 35 Mo. App. 490; St. Louis, I. M. & S. R. Co. v.
Goolsby, 58 Ark. 4ot.

*° Harris v. Hatfield, 71 Ill. 298. Except for the damage done before
he knew of it: Ibid.

*° Demetz v. Benton, 35 Mo. App. 559.

350 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

enter through a fence around the plaintiffs’ range and com-
miunicate a disease to their cattle."

Where animals grazed on a common range and the plain-
tiff was warned of the danger of disease, it was held equally
incumbent on him to keep his stock away from the defend-
ant’s as it was upon the defendant to keep his upon his own
premises and prevent their running at large and communicat-
ing the disease.**7

With reference to expert testimony it is said in an Illinois
case: ‘‘We are not prepared to hold that no one but a veter-
inary surgeon can properly testify in respect to the appear-
ance and symptoms of diseased horses and give an opinion
upon the question of the existence or non-existence of a par-
ticular disease or malady in such horses. It would seem that
farmers and other persons who for many years have had the
personal care and management of horses, both sick and well,
and have had an extensive practical experience with such ani-
mals, and with some particular disease to which they are sub-
ject, and ample opportunity to observe and know the char-
acteristics and symptoms of such disease, are qualified to state
whether in a particular case such characteristics and symp-
toms do or do not exist. And it would also seem that they,
after detailing facts which show that they have a practical and
personal knowledge and experience in respect thereto, may .
properly venture an opinion in regard to the existence or non-
existence of a disease with which observation has made them
familiar.” 218

90. Nuisances; Diseased and Dead Animals.—The power of a

municipality to order the destruction of dangerous animals as
nuisances has been already considered.244 This power ex-

™ Clarendon Land Inv. & Ag. Co. v. McClelland, 86 Tex. 179. And
see Grayson v. Lynch, 163 U. S. 468.

"Walker v. Herron, 22 Tex. 55.

** Pearson v. Zehr, 138 Ill. 48, 53. And see Grayson v. Lynch, supra.

“See § 46, supra.

NUISANCES; DISEASED AND DEAD ANIMALS. 351

tends equally to diseased animals.*45 It has been held, how-
ever, that the action of the municipality through its officers
in ordering the destruction of an animal as suffering from a
particular disease, as a horse from glanders, is not conclusive
on the rights of the owner of the animal. He may introduce
evidence to show that the animal was not in fact so diseased
and that the act of the commissioners was therefore illegal.?!°
In a commentary on Miller v. Horton it was said: “Review-
ing the arguments and authorities upon both sides of this
question, the conclusion of the majority of the court seems
best warranted: first, because a construction of the statute
giving express or implied power to the commissioners to kill:
healthy animals would render it unconstitutional; second, not
having such power, the commissioners are liable for the re-
sult of their acts, which in one point of view may be said to be
without their statutory jurisdiction and which in any point of
view takes private property from the owner without due
process of law.” 247 But where sound cattle have been de-
stroyed by order of the commission, no action lies against the
State for this tortious act of its officers: the remedy is against
them individually.?18

The exclusion by the sanitary commission of cattle of an-
other State, as affected with a contagious disease, will be pre-
sumed to be a proper exercise of their judgment.?*® And an
order issued by a sanitary commission has been held to be a
sufficient prima facie justification of a sheriff’s refusal to re-

25 Chambas v. Gilbert (Tex. Civ. App.), 42 S. W. Rep. 630.

9 Miller v. Horton, 152 Mass. 540; Newark & S. O. H. C. R. Co. v.
Hunt, 50 N. J. L. 308; Pearson v. Zehr, supra.

See, as to contagious and infectious diseases, Wirth v. State, 63 Wis.
51, where it was held that influenza was not such a disease as would war-
rant a conviction.

37 32 Cent. L. Jour. 249 n.

™8 Shipman v. State Live-Stock Sanitary Comn. (Mich.), 73 N. W.
Rep. 817; Houston v. State, 98 Wis. 481.

© St. Louis S. W. R. Co. v. Smith (Tex. Civ. App.), 49 S. W. Rep. 627.

352 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

turn to the owner stock held in quarantine before the ex-
penses of quarantine were paid.?#°

Where the animals were found to have been actually dis-
eased when killed, it was held that, under the statute, the
owner was properly limited to their actual value in their dis-
eased condition.?”*

It has been held by the Supreme Court of the United States
that the grant of an exclusive right to maintain slaughter-
houses for cattle, guarded by a proper limitation of prices to
be charged and imposing the duty of providing ample con-
veniences, with permission to all owners of stock to land and
to all butchers to slaughter at those places—was a police reg-
ulation within the power of a State legislature.*?* So, an
ordinance granting to a person an exclusive right to remove
from the city limits all such dead animals, not slain for human
food, as should not be removed by the owner in person or by
his immediate employee within twelve hours after death, and
requiring the owner, if not intending to remove it himself,
to deposit immediately a notice of the death in a box provided
for that purpose by the aforesaid person, was held a valid
exercise of police power and not to be open to the objection
of creating a monopoly or of depriving persons of their

*° Hardwick v. Brookover, 48 Kan. 609.

As to the expense of cattle quarantined on the owner’s premises, see
Kenneson v. Framingham, 168 Mass. 236.

™ Tappen v. State, 146 N. Y. 44. And see Campbell v. Manchester
(N. H.), 36 Atl. Rep. 877.

Where the appraisement has been made at their value as diseased cattle,
mandamus will not issue to compel the commission to change their ap-
praisement: Shipman v. State Live-Stock Sanitary Comn., supra.

™ Slaughter-House Cases, 16 Wall. (U. S.) 36.

But the legislature has no right to continue the exclusive right to a
slaughter-house so that no future legislation, nor even the same body,
can in future modify it: Butchers’ Union Co. v. Crescent City Co., 111
Uz. S. 746.

As to the right of the commissioner of a department to restrict bidders
for supplies to the use of animals killed and dressed within the State, see
In re Rooney, 26 Misc. (N. Y.) 73.

NUISANCES ; DISEASED AND DEAD ANIMALS. 353

property without due process of law.*** And such a person
may have an injunction restraining a pound-keeper from de-
livering such carcasses or causing them to be delivered to any
other person.?*4

But an ordinance is void which undertakes to confer upon
one person the right to remove and convert to his own use
the carcasses of all dead animals, not slain for food, found
within the city limits, to the exclusion of the right of the
owners to remove and use them before they become a nui-
sance.7*° It was said in a Louisiana case: “If the property
is not a nuisance, the owner should not be: prevented from
obtaining its value and should not be denied the right to make
any disposition of it (however innocent and useful). It is
not possible under police regulation to take property from
one man and give it to another. The city might, as a sani-
tary measure, after having given the owner the opportunity
to dispose of his dead animals, authorize a contractor to cart
them away and appropriate them to his own use. In warm
climates the police of cities requires regulations that should
be enforced with great vigilance to prevent nuisances injuri-
ous to health. The necessity of such ordinances would not
justify the council in declaring that all dead animals found in
the city not killed for human food are nuisances immediately
after death.” 22° And an ordinance allowing such fees to the
public contractor as amount practically to a confiscation of
the property, is unconstitutional.??7

Evidence that the animals died of suffocation and that ani-

*8 National Fertilizer Co. v. Lambert, 48 Fed. Rep. 458. And see, to the
same effect, State v. Fisher, 52 Mo. 174; Louisville v. Wible, 84 Ky. 290.

See, also, as to municipal power over dead animals as nuisances, 38
L. R. A. 330 n.

4 Alpers v. San Francisco, 32 Fed. Rep. 503.

*° River Rendering Co. v. Behr, 77 Mo. 91; Schoen v. Atlanta, 97 Ga-
607; Meyer v. Jones (Ky.), 49 S. W. Rep. 800.

See Alpers v. Brown, 60 Cal. 447.

#8 State v. Morris, 47 La. Ann. 1660.

“7 Knauer v. Louisville (Ky.), 45 S. W. Rep. 510.

23

354 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

mais so dying were sometimes taken to market and sold for
food and that the removal was by direction of the city in-
spector was held not to be a sufficient justification in an action
for converting the plaintiff's property. ‘A dead hog is not
per se a nuisance, even though it died of suffocation, and is
not necessarily dangerous to public health. The owner may
still put it to a useful and innocent purpose.” 728

Where a city authorizes the removal from its limits of dead
animals, leaving the place and manner of disposing of them
to its marshal, it is liable for his negligence in removing them
to a place where they become a private nuisance on account
of the stench.??° So, the fact that the business of rendering
dead animals is one of great public convenience is no defence
to an indictment for keeping a nuisance in permitting car-
casses, Offal and filth to be collected and deposited at the ren-
dering tanks to the prejudice of others.?°°

A slaughter-house within city limits may be prohibited as
a nuisance.?3!_ Otherwise, where it is at a reasonable distance
from the population and its business is not conducted negli-
gently or recklessly.7°? But the best conducted slaughter-
house in the wrong place may be a nuisance.?23— And it is
sufficient to constitute a slaughter-house a nuisance that its
odors are offensive to the senses, it not being necessary that

*“* Underwood v. Green, 42 N. Y. 140.

Hillsboro v. Ivey, 1 Tex. Civ. App. 653.

*° Seacord v. Peo., 121 Ill. 623.

As to keeping carcasses on deposit in a borough without a license, see
Simpson v. Proctor, 23 Rettie (Sc. Ct. Justic.) 22.

“Ex parte Heilbron, 65 Cal. 609; Chicago v. Rumpff, 45 Ill. go: Beiling
vu. Evansville, 144 Ind. 644; Rund v. Fowler, 142 id. 214; Seifried v. Hays,
81 Ky. 377; Woodyear v. Schaefer, 57 Md. 1; Catlin v. Valentine, 9 Paige
(N. Y.) 575; Portland v. Meyer, 32 Oreg. 368. And see the cases cited
in 38 L. R. A. 646 n.

The penalty of a slaughter of cattle may be imposed on a company that
allows persons to slaughter in a building: Liverpool New Cattle Market
Co. v. Hudson, L. R. 2 Q. B. 131.

™ Beckham v. Brown (Ky.), 40 S. W. Rep. 684.

"3 Moses v. State, 58 Fed. Rep. 18s.

NUISANCES ; DISEASED AND DEAD ANIMALS. 355

the public health should be endangered thereby.?*4 Where
a statute prohibited using any place as a slaughter-house with-
out a license, it was held that “‘slaughter-house”’ included not
merely the premises where the actual slaughtering of cattle
takes place, but also the premises used for processes connected
with or incident to slaughtering and that the latter are used
as slaughter-houses, though no actual slaughtering takes
place.2*° The authority conferred by a State constitution on
municipal corporations and parishes to regulate within their
limits the slaughtering of animals for human food does not
strip the State of the police power to provide for the appoint-
ment of an inspector of all such animals slaughtered through-
out the State, such inspector to be under the supervision of
the board of health.7%°

The bleating of calves kept over night at a slaughter-house
to the annoyance of the neighbors is a nuisance.?*7 But in
another case it was held that the squealing of hogs was not
such a nuisance as would justify the destruction of the
slaughter-house business for the sole purpose of ridding the
neighborhood of such noise.?3§

The manufacture of fish into oil and scrap or fertilizer in a
populous neighborhood has been held to be a nuisance
per se.789

One may recover for loss of health and comfort to himself
and family from another burying a dead animal on the ad-
jacent premises so insufficiently as to cause a nuisance. And

*4 State v. Woodbury, 67 Vt. 602.

* Hides c. Littlejohn, 74 L. T. N.S. 24.

8 State v. Slaughter-house & Refg. Co., 46 La. Ann. 1031.

As to an indictment for not making a butcher’s report of animals
slaughtered, see Braun v. State (Tex. Cr.), 49 S. W. Rep. 620.

27 Bishop v. Banks, 33 Conn. 118.

28 Ballentine v7. Webb, 84 Mich. 38—the court saying, “It is only when
it reaches the point of discomfort where it is injurious to health that the
injury can be said to be irreparable so as to call forth the extraordinary
power of a court of chancery to destroy it.”

© State v. Luce, 9 Houst. (Del.) 306.

356 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

the fact that the plaintiff might have abated the nuisance and
did not do so, will not prevent his recovering and will not
necessarily mitigate the damages.**° If A. wrongfully neg-
lects to bury the carcass of his ox found on B.'s land, the
latter may bury it without saving the hide. If he saves and
sells it, the proceeds are to be disposed of on equitable prin-
ciples, but not in an action of tort brought by A.?#

It is indictable to throw into a weli the carcass of an animal,
tainting and corrupting the water used by a family.?#* So,
the maintenance of stables and hog-pens directly upon the
banks of a non-navigable stream, polluting the waters which
are used by many persons, is a nuisance.?** And the “pen-
ning” or “corralling” of sheep over a stream to be a statutory
misdemeanor, need not necessarily be done by an artificial
structure, but may be done by means of men and dogs, either
alone or with natural or artificial barriers.?*+

A piggery in which swine are kept in such numbers that
their natural odors fill the air and make the occupation of the
neighboring houses and the passage over the adjacent high-
ways disagreeable, is a nuisance.?#° But it was held error
for the court to charge that if the smell of the defendant's pig-

© Jarvis v. St. Louis, I. M. & S. R. Co., 26 Mo. App. 253. And see
Louisville & N. R. Co. v. Bolton (Ky.), 38 S. W. Rep. 408.

“ Morse v. Boston & L. R. Co., 66 N. H. 148.

*? State v. Buckman, 8 N. H. 203. And see Peo. v. Truckee Lumber
Co., 116 Cal. 397.

One whose spring is tainted by the burial of a carcass near it may re-
cover the damages sustained, not merely the cost of removing the
nuisance: Louisville & N. R. Co. v. Simpson (Ky.), 33 S. W. Rep. 395.

** Peo., Ricks Water Co. v. Elk River M. & L. Co., 107 Cal. 214.

** Peo. v. Borda, 105 Cal. 636.

*’ Com. v. Perry, 139 Mass. 198. And see Ohio & M. R. Co. v. Simon,
40 Ind. 278; Whipple v. McIntyre, 69 Mo. App. 307; St. Louis v. Stern,
3 id. 48; Babcock v. N. J. Stock Yard Co., 20 N. J. Eq. 296; Board of
Health of Raritan Tp. v. Henzler (N. J. Ch.), 41 Atl. Rep. 228: Com. v.
Van Sickle, Bright. (Pa.) 69; Banbury Urban Sanitary Auth. v. Page.
8 Q. B. D. 97.

And it is no defence that the pens are as clean as they could be under the
circumstances: Burlington v. Stockwell, 5 Kan. App. 569. As to an in-

NUISANCES ; DISEASED AND DEAD ANIMALS. 357

pen were not sufficient alone to constitute a nuisance, yet if
it contributed with other pens in the neighborhood to form-
ing a nuisance, he would be guilty. ‘“The defendant can only
be held liable for the consequences which his act produced.
The mischief complained of must be the natural and direct
cause of his own act.” 748

Under statutes giving the power to define nuisances and
to regulate and control the keeping of animals in a town
it was held that the court could not declare that an ordinance
making it unlawful to keep any hog within the corporate
limits of the town was void for unreasonableness.*47 So it
was held that open cattle yards and pens were nuisances
which might be abated under an ordinance prohibiting the
keeping of cattle within the corporate limits.2** On the
other hand, an ordinance making it a nuisance to erect hog-
pens within city limits or to permit hogs to run at large in any
lot or enclosed place in the city, except at certain designated
places and directing that all such lots and pens be abated was
held invalid, as being too broad and sweeping.24® So, a by-
law that no pig or piggery should be kept within a city was
held to be ultra vires as being a general prohibition against
the keeping of pigs and not restricted to cases that might
prove to be nuisances.?°°

Where it is made a penal offense to “keep” swine within
fifty yards of a dwelling-house, it was held that one who sold
them elsewhere in the morning, brought them within the fifty
yards and sent them off in the evening, was guilty, it not be-
ing necessary to the offense to keep them all night.2** Buta

dictment for keeping cattle-pens, see Com. v. T. J. Megibben Co. (Ky.),
40 S. W. Rep. 6094. See also 38 L. R. A. 332 n.

*© Gay v. State, 90 Tenn. 645.

*" Darlington v. Ward, 48 S. C. 570. This was on the ground that the
court could pass only on the constitutionality of the ordinance. The de-
cision was by a divided court.

*8 Opelousas Bd. of Aldermen v. Norman (La.), 25 South. Rep. 401.

*” Ex parte O’Leary, 65 Miss. 80. *° McKnight v. Toronto, 3 Ont. 284.

* Steers v. Manton, 57 J. P. 584.

358 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

by-law prohibiting the keeping of swine within fifty feet of
any dwelling-house has been held unreasonable and therefore
void.282, An ordinance prohibiting the keeping of cows
within two hundred feet of any dwelling without a “special
permit” from the board of health, was held invalid as an at-
tempt by the board to license such keeping not sanctioned by
the statute.?°?

A stable for horses is a nuisance if used in such a way that
the noises and odors arising therefrom are an annoyance to
the neighborhood.?** And this is so, though it may be con-
structed with all modern improvements ;?°° and though it may
formerly have caused no annoyance.**® But the lessor of a
stable, so constructed as with proper care not to cause dis-
comfort to persons of ordinary sensibility, is not liable for the
improper use of the stable by the tenant or his employees.?**
And an ordinance prohibiting the location of a livery-stable
in or opposite to any block in which is a school building,
without reference to the manner of construction or use or any

** Heap v. Burnley Union, 12 Q. B. D. 617.

A by-law prohibiting the keeping of a cow at a less distance than forty
feet from a dwelling-house was held reasonable in McKnight 7. Toronto,
supra.

*8 Flushing v. Carraher, 87 Hun (N. Y.) 63.

As to the power to make regulations concerning the ventilation of cow-
sheds, see Baker v. Williams, [1898] 1 Q. B. 23.

4 Rapier v. London Tramways Co., [1803] 2 Ch. 588; Broder 7. Sail-
lard, 2 Ch. D. 692: Kaspar v. Dawson (Conn.), 42 Atl. Rep. 78: Filson
v. Crawford, 5 N. Y. Suppt. 882; Robinson v. Smith, 7 id. 38: Dargan v.
Waddill, 9 Ired. L. (N. C.) 244; Gifford v. Hulett, 62 Vt. 342. And see
38 L. R. A. 653 n. As to the measure of damages, see Gempp v. Bassham,
60 Tl. 84.

The prohibition of a stable for more than four horses unless licensed by
the board of health is not unconstitutional: Newton v. Joyce, 166 Mass.
83. See also Phillips v. Denver, 19 Colo. 179, cited in § 107, infra.

™ Drysdale v. Dugas, 26 Can. Sup. Ct. 20. But see Forget 7. Laver-
dure, Rap. Jud. Quebec, 9 C. S. 08.

*° Ball v. Ray, 8 Ch. App. 467.

*? Metropolitan Sav. Bk. v. Manion, 87 Md. 68.

Notice to the defendant not to put in windows in the side of his stable
opposite the plaintiff's dwelling will not affect the former’s liability: Ibid.

NUISANCES ; DISEASED AND DEAD ANIMALS. 359

further specification of distance, has been held unreasonable
and void.?§

Teamsters will be enjoined from spending their idle time
with their horses in front of private houses, so that noxious
odors are caused.75® But the fact that excrement is depos-
ited in a street by horses tied to hitching-posts erected by a
city is no ground for an injunction against the maintenance
of the posts.28° Where, however, hitching-posts are an ob-
struction and detrimental to the public health and conveni-
ence, it may become the duty of the municipal authorities to
remove them.?®

The business of keeping a stallion for service in the princi-
pal parts of a village is, by reason of the indecent noises and
other offensive accompaniments, in its nature a nuisance
which may be enjoined.?%?

Whether bees are or are not a nuisance is to be judicially
determined in each case, and an ordinance which makes the
owning, keeping or raising them within city limits a nuisance
per se is too broad and is, therefore, invalid.2°? Where the
evidence showed that the defendants were keeping a large
number of hives of bees in a lot immediately adjoining the
plaintiff’s dwelling-house and that at certain seasons they
were a source of great annoyance to him and his family, and
also that they could be removed without material difficulty to
a place where they would not disturb the neighbors, it was
held that the case was a proper one for a permanent injunc-
tion.?64

*8 Phillips v. Denver, 19 Colo. 179.

*° Lippincott v. Lasher, 44 N. J. Eq. 120.

7 Miller v. Webster City, 94 Ia. 162.

7 Gray v. Henry County (Ky.), 42 S. W. Rep. 333.

22 Hoops v. Ipava, 55 Ill. App. 94. And see Crane v. State, 3 Ind. 193;
Nolin v. Franklin, 4 Yerg. (Tenn.) 163.

But the keeping of a stallion in a town or elsewhere is not per se a
nuisance: Ex parte Robinson, 30 Tex. App. 493.

*8 Arkadelphia v. Clark, 52 Ark. 23.

74 Olmsted v. Rich, 6 N. Y. Suppt. 826.

360 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC.

The subject of killing troublesome dogs has been
already considered.2°* With regard to noisy dogs, it was
said in a leading case, already frequently cited: “Whether
dogs kept on the premises of their owner may by their
noise become nuisances to adjoining proprietors and subject
their owner to action for a nuisance seems to be an open
question. An elementary writer says they cannot (1 Hil-
liard on Torts, 2d ed. 644), on the authority of Street v.
Tugwell [2 Selw. N. P. 1070] where an action was brought
for keeping a kennel of pointers so near to the plaintiff’s dwell-
ing-house as to disturb his family during the daytime and pre-
vent them from sleeping in the night, and there was a verdict
for the defendant. But that case has been doubted. It has
been remarked that Lord Kenyon in refusing a new trial in-
timated that if the nuisance was continued a new action could
‘be brought, which was an intimation that an action could be
maintained; and Judge Nelson in Brill v. Flagler... [23
Wend. (N. Y.), 354] plainly intimates that the decision is not
a correct exposition of the law. And if the noise of a boiler
manufactory . . . orasteamengine . . . maybe a nuisance,
@ fortiori should a kennel of pointers who disturb the sleep of
a family be, for undisturbed sleep is not merely a comfort,
it is absolutely necessary to health.” *6* So, the keeping of
roosters and hens may become a nuisance.2°7 But where an
ordinance declared it a nuisance for one to “keep” within the
city, for the purpose of feeding for the market, more than
fifty chickens, it was held that a dealer who on Saturday
took in a large number of chickens and retained them in a
railroad building occupied by him, near which ran a sidetrack,
and shipped them on Monday, having fed them in the mean-
time,—did not violate the ordinance, its purpose being “to
prevent the gathering and continued feeding of fowls in prep-

| See §§ 43, 46, supra. *“° Woolf v. Chalker, 31 Conn. 121.
*" Ireland v. Smith, 3 Sc. L. T. Rep. 180. And see the unreported case

of Desmond v. Smith (Me. Co. Ct.), referred to in 9 Green Bag 550. See,
also, 41 Sol. Jour. 167.

NUISANCES; DISEASED AND DEAD ANIMALS. 361

aration for the market or for slaughtering as may become of-
fensive to the senses.” 768

A company authorized to use their railway for cattle traffic
and to buy lands for such purposes are not liable for the noise
of cattle and drovers which otherwise would constitute a nui-
sance to the occupiers of land near their station. And the
fact that a stockyards company by transporting stock
through a city creates a nuisance does not justify the city in
removing the tracks and destroying the value of the entire
road, where the charter authorizes the company to transport
property of every kind.27° Where the erection and use of
stock-pens cause annoyance of a permanent character to the
adjoining residents, the measure of damages is the difference
in the value of property with and without such annoyance.?”

91. Racing and Betting.—The subject of betting on races
is one that has been much exploited in judicial decisions and
about which there have been great differences of opinion. It
seems to be generally admitted that at the common law a
wager on a horse-race was not illegal ;?7? and this doctrine
has been followed in some modern cases.?7*? But this is con-
trary to the general tendency of the later cases which are dis-
posed to hold such a wager to be illegal and immoral.?"* In

*8 Long v. Portland (Ind.), 51 N. E. Rep. 917.

* London, Brighton & S. C. R. Co. v. Truman, 11 App. Cas. 45.

°° Chicago v. Union Stockyards & T. Co., 164 Ill. 224. And see, as to
municipal power over stockyards as nuisances, 38 L. R. A. 655 n.

*" Denison & P. S. R. Co. v. O’Maley (Tex. Civ. App.), 45 S. W. Rep.
227,

°® See McAllester v. Haden, 2 Camp. 438; Gibbons v. Gouverneur, I
Denio (N. Y.) 170; Harris v. White, 81 N. Y. 532.

As to what constitutes a “race meeting” within the meaning of a statute
limiting its length, etc., see State v. Forsythe (Ind.), 44 N. E. Rep. 593.

"® See Barret v. Hampton, 2 Brev. (S. C.) 226; Grayson v. Whatley,
15 La. Ann. 525; Walker v. Armstrong, 54 Tex. 609; Com. v. Shelton,
8 Gratt (Va.) 592; Challand v. Bray, 1 Dowl. P. R.N. S. 783.

See Gridley v. Dorn, 57 Cal. 78; Odell v. Atlanta, 97 Ga. 670; Morgan
v. Beaumont, 121 Mass. 7; Wilkinson v. Tousley, 16 Minn. 299; Corson
v. Neatheny, 9 Colo. 212; Cheesum v. State, 8 Blackf. (Ind.) 332; McLain

362 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

a Nebraska case it is said: “The rule at the common law
was that all wagering contracts that were contrary to good
morals or public policy were illegal and void. The courts of
England at an early day held that betting on a horse-race
was not opposed to good morals. The courts of that country
reluctantly followed this early precedent until the common
law interpretation of wagering contracts was changed by the
statutes of 8 and 9 Victoria which made all contracts of wager
void. Is betting on the result of a race contrary to good
morals? We are not bound by the decision of the courts
of England in determining that question. Whether a thing
in the eyes of the law is moral or immoral may depend
largely upon when and where it occurred. An act may be
upheld as moral in one country and be regarded as immoral in
another. A wager contract might have been sustained a
hundred years ago as being in conformity with good morals
and be condemned to-day as immoral. In this country bet-
ting on a race is now generallyregarded as against sound mor-
als. Asa general rule the courts of this country, in the more
recent decisions, have refused to enforce all wagering con-
tracts, even though they are not declared illegal by statute.
Such contracts are certainly against good morals, a detriment
to society, and under the principles of the common law are
illegal and void.”?75

A horse-race is a “game” in the sense of a statute against
gaming.2" So it is gaming to bet on a cock-fight,277 or a

v. Huffman, 30 Ark. 428; Bledsoe v. Thompson, 6 Rich. L. (S. C.) 44;
Bollinger v. Com. (Ky.), 35 S. W. Rep. 553.

*© Deaver v. Bennett, 29 Neb. 812.

*°Goodburn v. Marley, Strange 1159; Blaxton v. Pye, 2 Wils. 309;
Clayton v. Jennings, 2 W. BI. 706; Stone v. Clay, 18 U. S. App. 622;
Swigart v. Peo., 154 Ill. 284; Ellis v. Beale, 18 Me. 337.

Telegraphic instruments, blackboards, etc., for receiving or recording
news of horse races are “apparatus for the purpose of registering bets”:
Com. v. Healey, 157 Mass. 455; Com. v. Clancy, 154 id. 128.

*" Bagley v. State, 1 Humph. (Tenn.) 486; Johnson v. State, 4 Sneed
(Tenn.) 614; Com. v. Tilton, 8 Mete. (Mass.) 2323 Storey v. Brennan,
15 N. Y. 524; Squires v. Whisken, 3 Camp. 140; Rex v. Howel, 3 Keb. 465.

RACING AND BETTING. 363

dog-fight.2*8 On the other hand horse-racing has been held
not to be a “gambling device,” 7° nor a ‘game of hazard or
skill,” ®8° nor a “game of chance.” 28! Nor is a dog-race a
“game of chance.” #8? And game-cocks are not “implements
of gaming” in the sense of a statute authorizing the destruc-
tion of such implements.?8%

Where the betting has been held illegal, the selling of pools
on the race is, of course, forbidden.*** In all such cases the
authority of the stakeholder may be revoked and the money
recovered from him by either party.?8° “The stakeholder
is not to be held in pari delicto with the persons who are the
parties to the wagering contract. He does not share in
their guilt. That portion of the transaction with which he is
connected is innocent; or, at most, it is not in violation of
any statute and, if in contravention of public policy or mor-
ality at all, it is so slightly so that, in a suit like this, the rule
that the law will leave all who share in the guilt of an illegal
or immoral transaction where it finds them, has no applica-
tion.” 286 But the stakeholder cannot, even with the con-

*8 Egerton v. Furzeman, 1 C. & P. 613. See Grace v. McElroy, 1 Allen
(Mass.) 563.

* State v. Lemon, 46 Mo. 375.

* State v. Rorie, 23 Ark. 726. But it was held to be a “hazard” in the
statutory sense, in Cheek v. Com., 100 Ky. 1.

* Harless v. Adams, 1 Morr. (Ia.) 160.

- “ Hirst v. Molesbury, L. R. 6 Q. B. 130.

*8 Coolidge v. Choate, 11 Metc. (Mass.) 79.

** Parker v. Mosher, 60 N. H. 73; Peo. v. Weithoff, 51 Mich. 203, 93
id. 631; McBride wv. State, 39 Fla. 442.

Pool-selling was held not to be a “lottery,” in the sense of the Constitu-
tion, in Reilly v. Gray, 77 Hun (N. Y.) 402. Contra: Irving v. Britton,
8 Misc. (N. Y.) 201.

Bookmaking on a horse race was held to be a game of chance or
gambling device or contrivance, and a bookmaker’s booth a place for
gaming, in Miller v. U. S., 6 App. D. C. 6.

5 Cleveland v. Wolff, 7 Kan. 184; Corson v. Neatheny, 9 Colo. 212;
Deaver v. Bennett, 29 Neb. 812; Wilkinson v. Tousley, 16 Minn. 299;
Bledsoe v. Thompson, 6 Rich. L. (S. C.) 44; Peo. v. Fallon, 152 N. Y. 1.

7 Cleveland v. Wolff, supra. A clerk attending his employer and re-
cording his bets is not guilty of book-making: Peo. v. Fallon, supra.

364 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC.

sent of both parties given after the event, be shielded from
liability by paying the stakes to the winner.*** Where two
persons contribute money to be used by one of them for the
purpose of betting on a horse-race, the other cannot recover
any of the money so advanced. The holder of the money is
not a stakeholder but a partner.?®® In England, the business
of a bookmaker on the turf not being illegal if carried on ac-
cording to the provisions of the Betting Act, 1853, a partner,
with bona fide intentions and ignorant of any breach of the
law, is entitled to an account and to payment of his share of
the profits.?®°

Racing for a purse or prize has been generally held not to
be illegal as it lacks the element of chance of gain or risk of
loss which characterizes the wager agreement.2°° But such
racing was held illegal where the statute prohibited the racing
of horses “for any bet . or for any reward to be given to
the owner.” 291 And there are cases where the distinction be-
tween a race for a reward and one for a wager does not seem
to be observed.?® Where the plaintiff and defendant agreed
to ride a race each on his own horse, both the horses ridden
to become the property of the winner, it was held that the
horse could not be regarded as a “contribution toward a
prize,” within the meaning of a statutory proviso, and that the

*" Kensler v. Jennings (N. J.), 41 Atl. Rep. 918; Ruckman v. Pitcher,
1 N. Y. 302, 20 id. 9; Storey v. Brennan, 15 id. 524.

*8 Shaffner v. Pinchback, 133 Ill. 4ro.

* Thwaites v. Coulthwaite, [1896] 1 Ch. 406.

“ Misner v. Knapp, 13 Oreg. 135: Delier v. Plymouth Co. Agricul.
Soc., 57 Ia. 481; Porter v. Day, 71 Wis. 206; Harris v. White, 81 N. Y.
532; Alvord v. Smith, 63 Ind. 58; Ballard v. Brown, 67 Vt. 586; Re Dwyer,
14 Mise. (N. Y.) 204; Peo. v. Fallon, 152 N. Y. 12; Peo. v. Van De Carr,
150 id. 439.

And an agreement between the owners to pool and divide the premiums
is valid: Hankins v. Ottinger, 115 Cal. 454.

*™ Bronson Agricul. & Breeders’ Assn. 7. Ramsdell, 24 Mich. 441. See
Harris 7. White, supra.

™ See Comly v. Hillegass, 94 Pa. St. 132; Dudley wv. Flushing Jockey
Club, 14 Misc. (N. Y.) 58.

RACING AND BETTING. 365

contract was therefore void as being “by way of gaming or
wagering.” 79%

Where the plaintiff put in the hands of the defendant, who
was secretary of a driving association, $60 as an entrance fee
to entitle him to trot his horse over a race-course to com-
pete for two purses of $300 each and the plaintiff trotted
one race and was defeated and the other race was withdrawn
on account of bad weather, and the association tendered the
plaintiff $30 which he refused to accept, it was held in an
action to recover $60 that there was no such contract of
wager between the plaintiff and defendant as would defeat
the action.?°*

It was held in Delaware that a wager on a horse-race out
of the jurisdiction of the State is not illegal. ‘‘Any bet...
on a horse-race instituted and run in this State would be
illegal and void; but this court cannot regard a horse-race as
illegal which is run in the State of Maryland, where racing
is not prohibited; neither can we regard a bet made on such
a race as unlawful, here or there. Neither the race nor the
bet is immoral in itself; nor is it prohibited by our act of
assembly which does not reach the case. If, therefore, this
race in reference to which the bet was made was run in
Maryland, and the appointed judges of the race have decided
against the plaintiff, he cannot recover back from the stake-
holder the money placed in his hands. Whether their deci-
sion was right or wrong is not open for discussion as they
are the chosen judges of this question.” 7°°

There is a similar decision in New York.?%®

In Virginia it was held that where one keeps a house
wherein he posts the names of horses running on a race-track

*8 Coombes v. Dibble, L. R. 1 Ex. 248.

4 Jordan v. Kent, 44 How. Pr. (N. Y.) 206. And see Hankins v. Ot-
tinger, 115 Cal. 454.

As to what is a “stake race,” see Stone v. Clay, 18 U. S. App. 622.

5 Ross v. Green, 4 Harr. (Del.) 308.

*© Harris v. White, 81 N. Y. 532.

366 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC.

in another State and telegraphs orders to customers to bet
money thereon, which bets are accepted at the track, he does
not violate the statute as the betting is not done in that
house but where the offer to bet is accepted.?®* But, under
the act of 1896, the State has exercised its authority to forbid
its citizens to bet on horse-racing in another State, and this
right has been held not to be affected by the fact that the
money is to be placed in a third State.?°*

In Tennessee it is gaming to bet within the State on a
horse-race to be run in another State, where it is lawful to
bet on such race. The offense is consummated if the bet is
commenced, a fortiori if it is completed, within the State.?9
But betting on horses is not gaming within that State if the
races are run and the betting made within enclosures 3°
though the selling of “auction-pools” or “book-making” on
races to be run on unlicensed tracks in the State or upon any
track outside of the State has been held to be gaming.2%

In North Carolina a note given in consideration of a bet
won on a horse-race cannot be enforced, though it was given
in a State in which such contracts are valid.?°?

In Maryland it is unlawful to make or sell pools or bet
on horse-races except in the grounds of an agricultural asso-
ciation upon a race held within the same on the same day.?%*

*T Lescallett v. Com., 89 Va. 878.

In Canada a telegraph office, through the aid of which bets are made
and moneys paid over to the winners, is a betting house: Reg. v. Giles,
26 Ont. 586; Reg. v. Osborne, 27 id. 185.

*8 Lacey v. Palmer, 93 Va. 150.

As to a complaint for sending money out of a State to be bet in horse
races, see State v. Falk, 66 Conn. 250.

™ Williams v. State, 92 Tenn. 275; Edward v. State, 8 Lea (Tenn.) qit.

Williams v. State, supra.

The statute is not invalid as vicious class legislation, though partial:
Debardelaben v. State (Tenn.), 42 S. W. Rep. 684.

™ Palmer v. State, 88 Tenn. 553; Brown v. State, Ibid. 566.

* Gooch v. Faucett, 122 N. C. 270.

Stearns v. State, 81 Md. 341.

The place cannot be changed nor the period of exemption extended:
State v. Dycer, 85 id. 246.

RACING AND BETTING. 367

A note given in the State in consideration of money loaned
for making books on races run in another State where the
laws authorize book-making is given for money loaned for
gambling purposes and is void.*°* In New Jersey, also, un-
der an act making unlawful all wagers on any race, it is im-
material that the race is to be run in another State.?°*

In California, it was held that an ordinance prohibiting the
selling of pools on horse-races, except within the enclosure
of the track, is a valid police regulation and not void because
its incidental effect may be to confer special privileges or bene-
fits upon those owning or controlling race-courses by giving
them the exclusive right of carrying on the business or of
selling to others the privilege of pool-selling.2°* While in
Missouri, a statute prohibiting book-making except under
similar circumstances was held to violate the constitutional
prohibition against passing any local or special law granting
to any corporation or individual any special or exclusive right,
privilege or immunity.3"

A contract to pay a certain sum of money as a forfeit for
declining to run a horse-race was held valid in Texas.?°8

In Ontario, the race-courses of incorporated associations
are reserved by the Criminal Code as places where bets may
be made during the actual progress of a race meeting without
the bettors being subject to a penalty. An agreement for
the sale of betting and gaming privileges at a race meeting
by an unincorporated association, who are the lessees of an
incorporated association, the owners of the race-course, is not
illegal.3°°

In England, to make out the statutory offense of keeping

5 Spies v. Rosenstock, 87 Md. 14.

* Kensler v. Jennings (N. J.), 41 Atl. Rep. 918.

As to an indictment for transmitting bets on races by telephone, see
State v. Spear (N. J.), 42 id. 840.

°° Ex parte Tuttle, 91 Cal. 580.

57 State v. Walsh, 136 Mo. 400; State v. Bliler, 138 id. 130.

*8 Wheeler v. Friend, 22 Tex. 683.

°° Stratford Turf Assn. v. Fitch, 28 Ont. 579.

368 IMPOUNDING ; INJURIES ON HIGHWAYS, ETC.

a “place for betting with persons resorting thereto,’ persons
must “resort” physically to the place. Sending letters and
telegrams is not enough.*!° In a New Jersey case it was
held that a common-law form of indictment for keeping a
disorderly house and permitting persons to be and remain
in the house betting on horse-races, did not charge a vio-
lation of the statute making it an offense to keep a house to
which persons may resort for betting upon horse-races, as the
statute contemplated the keeping of a place with the intent
that persons may resort thither for betting upon horse-races.*"1

A steeple-chase for fifty pounds or upwards is a lawful race
under the English statutes and evidence was held admissible
that “across a country,” in sporting phraseology, means over
all obstructions and prohibits the rider from availing himself
of an open gate.?!?

A coupon competition in a newspaper in which the cou-
pons are to filled up with the names of horses likely to win,
—the prize to be given to the lucky guesser,—is not a lottery
or betting.*48 A list of horses expected to win in a race is
not a literary composition which may be copyrighted.4* A
newspaper which excludes racing and betting intelligence is
not a “sporting paper,” within the meaning of an agreement
framed to protect the copyright of papers specially connected
with horse-racing.315

*° Reg. v. Brown, [1895] 1 Q. B. 1109.

For the meaning of “place” used for betting, see Eastwood v. Miller,
L. R. 9 Q. B. 440; Bradford v. Dawson, [1807] 1 Q. B. 307; Hawke 2.
Dunn, Ibid. 579; McInaney v. Hildredth, Ibid. 600: Liddell v. Lofthouse,
[1896] 1 Q. B. 295; Reg. v. Leigh, 102 L. T. 136; Doggett v. Catterns,
19 C. B. N. S. 765; Powell v. Kempton Park Racecourse Co., [1897] 2
Q. B. 243, [1899] A. C. 143; Reg. v. Humphrey, [1898] 1 Q. B. 875; Reg.
v. Hobbs, [1898] 2 Q. B. 647; Kitson v. Ashe, [1899] 1 Q. B. 425; Brown
v. Patch, Ibid. 892. See, also, 41 Sol. Jour. 616.

™ State v. Ackerman (N. J.), 41 Atl. Rep. 697.

* Evans v. Pratt, 4 Scott N. R. 378.

™ Stoddart v. Sagar, [1895] 2 Q. B. 474.

“4 Chilton v. Progress P. & P. Co., [1895] 2 Ch. 29.

™’ McFarlane v. Hulton, [1899] 1 Ch. 884.

RACING AND BETTING. 369

Where a contract as to a horse-race is silent as to the con-
sequences of a failure to start when the word is given, parol
evidence of custom is admissible by way of explanation. The
presumption is, where the contract is silent, that the parties
had in view the rules of the turf, and evidence of these rules
does not vary the contract but explains its meaning.3!©
Where the judges are unable to agree as to the fairness of
the start or as to which horse won, the race should be con-
sidered a draw, entitling those betting thereon to withdraw
their bets.317

One of two persons engaged in trotting their horses
against each other may maintain an action against the other
for wilfully running him down, although they were trotting
for money, contrary to law.*48 And promissory notes given.
for an interest in race-horses are not invalidated in the hands
of an innocent holder because the parties contemplated en-
tering into a partnership for racing horses for money, con-
trary to statute.24® But where three persons agreed to buy
a horse, race it against the horse of another and divide the
proceeds, deceiving the owner of the other horse as to the
qualities of their horse it was held that no action for an ac-
counting lay, the agreement being dishonest and the ar-
rangement about the division of proceeds not being a subse-
quent collateral agreement founded on a new considera-
tion.32° And where a check was given by the defendant in
payment of bets upon horse-races lost by him, and endorsed.
by the payee to the plaintiff for value, with notice of the con-
sideration for which it was given, it was held that the plaintiff
could not maintain an action upon the check as it must be
deemed to have been given for an illegal consideration.***

°° Walker v. Armstrong, 54 Tex. 600.

™1 Shain v. Searcy, 20 Tex. 122; Jackson v. Nelson (Tex. Civ. App.),.
30 S. W. Rep. 315.

*® Welch v. Wesson, 6 Gray (Mass.) 505.

*° Biegler v. Merch. Loan & Trust Co., 164 III. 197.

°° Morrison v. Bennett, 20 Mont. 560. :

= Woolf v. Hamilton, [1898] 2 Q. B. 337.

24

370 IMPOUNDING; INJURIES ON HIGHWAYS, ETC.

In an action to recover an unpaid trotting premium
claimed to have been won by the plaintiff’s horse in a horse-
race conducted by the defendant, it was held that the judges
constituted the tribunal to which the parties submitted when
they entered their horses for the race and by their decision,
if honestly given, the parties were bound, but that the plain-
tiff was not debarred from recovering when the judges,
through the fraud of one of their number, were led to award
the premium to another horse.*??, A reasonable discretion
must be allowed the judges to determine when races shall
terminate for a given day, and it will be presumed that they
acted fairly and within the exercise of a sound discretion
when they declared a race postponed till the following
day.223

A racing association may exclude from its races any person
who has been ruled off the turf by the Jockey Club.32* Such
an association, where it is not given the power of eminent
domain nor aid from the State, is a private and not a quasi-
public corporation and may refuse to allow certain persons
to enter horses for its races.??°

Engaging in a horse-race, where horse-racing is unlawful
and where injury or death results to the insured during the
race or while endeavoring to stop one of the horses during
the progress of the race, is an act falling within the terms of
a policy whereby the insurance is forfeited when death is
caused by “duelling, fighting or other breach of the law on
the part of the insured.” 328

™ Wellington v. Monroe Trotting Park Co., 90 Me. 405.

And see Corrigan v. Coney Island Jockey Club, 61 N. Y. Super. Ct. 393.

** Molk v. Daviess County Agricul., etc., Assn., 12 Ind. App. 542.

™ Grannan v. Westchester Racing Assn., 153 N. Y. 440.

The officers may expel persons distributing score cards of the races
without right: Bower v. Robinson, 53 Ill. App. 370.

“ Corrigan v. Coney Island Jockey Club, 22 N. Y. Suppt. 394. Allow-
ing the corporation to register bets and sell pools is not a grant of State
aid rendering it quasi-public, but is merely the removal of the statutory
prohibition against a common-law right: Ibid,

™ Insurance Co. v. Seaver, 19 Wall. (U. S.) 531.

RACING AND BETTING. 371

An advertisement by an agricultural association that the
races at its annual fair would be conducted “under the rules of
the American Trotting Association” was held not to be no-
tice to one entering his horses that the society was a mem-
ber of that association and that all questions arising upon
the races were to be referred to it for decision, so as to render
such a decision binding upon him.??7

Horse-races exhibited within enclosures and to which the
public is admitted upon payment of an entrance fee, are
“shows and amusements” which a city may license, tax, reg-
ulate or suppress.326

Horse-racing grounds to which the public are invited must
be kept in a reasonably safe condition for the spectators.
But the negligence of the person conducting the race cannot
be presumed from the mere fact that a spectator was injured
by a runaway horse within the place reserved for specta-
tors.2°® The proprietor of a race-track is responsible for per-
mitting the track to be obstructed so that the plaintiff’s horse
collides with another and is injured.**°

*" Moshier v. LaCrosse County Agricul. Soc., 90 Wis. 37.

*8 Webber v. Chicago, 148 Ill. 313. And they come under the head
of circuses, menageries, etc., ‘and all other exhibitions” in an ordinance:
Ibid.

°° Hart v. Washington Park Club, 157 Ill. 9.

*° North Manchester Tri-County Agricul. Assn. v. Wilcox, 4 Ind. App.
141. And see Fairmount Un. Jt. Stock Agricul. Assn. v. Downey, 146
Ind. 503.

TITLE IV.

LIABILITIES OF OWNERS OF ANIMALS.

CHAPTER III.

VICIOUS AND FEROCIOUS ANIMALS.

92. Wild and dangerous animals. 95. Evidence.

93. Negligence and contributory 96. Liability of owner or keeper;
negligence. joint and several liability.

94. Scienter. 97. Action; pleading; damages.

92. Wild and Dangerous Animals.—Where an animal is of a
species known to be wild and ferocious, the mere keeping of
it subjects the owner or keeper to liability for any injury done
by it, irrespective of any negligence in the keeping or-any
knowledge of the particular animal’s disposition. Thus,
where a bear was kept tied in’a city and A.’s hired boy, not
in his presence, teased him, and the bear, breaking loose, ai-
tacked and killed A., a club that kept the bear were held liable,
including one who was absent and knew nothing of the bear,
—the court saying, “Animals of this kind, such as lions, tigers,
bears, are universally recognized as dangerous. It is the
duty of those who own or keep them to keep them in such
a manner as to prevent them from doing harm, under any cir-
cumstances, whether provoked, as they are liable to be, or
not provoked. There must be security against them, under
all contingencies.” + This was also held to be true of a wolf,

* Vredenburg v. Behan, 33 La. Ann. 627. See also, as to bears, Besozzi
v. Harris, 1 F. & F. 92; Wyatt v. Rosherville Gardens Co., 2 Times L.
Rep. 282, And see Spring Co. v. Edgar, 99 U. S. 645.

372

WILD AND DANGEROUS ANIMALS. 373

fed from the defendant’s butcher shop,? and of a boar,—the
court thinking it “a matter of common experience that a
boar, though it be in a sense a domestic animal, is certainly
not mansuete nature, and that on the slightest provocation
it is apt to do such mischief as has happened in this case.” ?
In an English case it was held that an elephant came in the
same category and that the fact that the persons exhibiting
it did not know it to be dangerous would not prevent re-
covery by one injured. “Unless an animal is brought within
one of these descriptions, that is, unless it is shown to be
either harmless by its very nature, or to belong to a class that
has become so by what may be called cultivation—it falls
within the class of animals as to which the rule is that a
man who keeps one must take the responsibility of keeping
it safe. . . . It falls within the class of animals that a man
keeps at his peril and which he must prevent from doing
injury under any circumstances, unless the person to whom
the injury is done brings it on himself.” * In a review of
this case, it was said: “The Court of Appeal . . . has been
a little hard upon the elephant in classing him with the lion,
the bear and the wolf, animals enumerated by Lord Hale as
beasts fere nature which a man keeps at his peril. .. . The
elephant might be supposed to have a record which would
entitle him to more favorable consideration. In his wild state
he is doubtless not altogether desirable as a companion, but he
has been sufficiently tamed to render many services to man
and stands in a very different position to animals which are
quite irreclaimable. But for the tame elephant of India the
Court of Appeal cares nothing.—In England, however do-
cile he may be, he is but a specimen of a savage, race and
cannot escape the stigma of his past state of wildness. The
cow, the horse and the dog have been with us for genera-
tions and have so won a character for respectability. In the

* Manger v. Shipman, 30 Neb. 352.
* Hennigan v. McVey, 9 Rettie (Sc. Ct. Sess.) 411.
‘Filburn v. Peo. Palace & Aquar. Co., 25 Q. B. D. 258.

374 VICIOUS AND FEROCIOUS ANIMALS.

long course of the ages the Master of Rolls appears to think
the elephant may attain the same high level, but till he has
done so it matters not what progress he makes abroad. The
result is doubtless right enough, though the reasoning is not
altogether clear. However domesticated the whole race of
elephants might become in India, it seems that this would
make no difference in their legal credit here until members of
the race had actually been born and for many generations do-
mesticated in England. Conversely the English cow, and
probably even the English sheep, ought upon their introduc-
tion into a new country to be treated as retaining the savage
character of their distant ancestry. These animals might join
the elephant in saying that such a doctrine was hardly in ac-
cordance with the comity of nations.’®

As was said in the case last cited the defendant is liable “un-
less the person to whom the injury is done brings it on him-
self.” So in Besozzi v. Harris, supra, it was said, “If the
plaintiff, with knowledge that the bear was there, put herself
in a position to receive the injury, she could not recover.”
This question of contributory negligence will be discussed in
the next section.

The rule above stated has been held to apply to other cases
than those of animals fere nature. Thus where a bull breaks
into the field of its owner’s neighbor and gores his horse till
it dies, this creates a liability in trespass quare clausum fregit
to pay for the horse. “Injuries committed by bulls on horses
occur so frequently that it is difficult to avoid coming to the
conclusion that every owner of a bull ought to be held an-
swerable in an action of trespass for his bull in killing or
injuring when running at large, either by his negligence or
permission, the horse of another, though it be the first offense
of the kind that the animal has ever been known to commit.”

° 34 Sol. Jour. 596.

* Dolph v. Ferris, 7 W. & S. (Pa.) 367. And see Mason v. Morgan,
24 U. C. Q. B. 328; Burke v. Daley, 32 Ill. App. 326.

Cf. Clark v. Armstrong, 24 D. (Sc. Ct. Sess.) 1315, cited in § 93, infra.

WILD AND DANGEROUS ANIMALS. 375

In the case of Ellis v. Loftus Iron Co. already cited,’ it was
held that where the defendants’ horse injured the plaintiff’s
mare by biting and kicking through a fence, this was a tres-
pass for which the defendants were liable apart from any ques-
tion of negligence. The following remarks have been made
on this case: “The more doubtful question appears to be
whether, in the absence of negligence or default, the owner
is liable in trespass for the acts of his animal. We have some
difficulty about the principle of this liability. It can hardly
be put on the ground of agency without an approach to the
ludicrous and yet, strictly, if trespass lies, it would seem log-
ically that it must be a case of qui facit per alium facit per se.
The animal has a will of its own. ... If my dog, roving
about ona third person’s ground, bite another, I am only
liable if there be evidence of the scienter; but suppose my dog
strays off my ground on to my neighbor’s and bites my
neighbor there, how then? Wherein does this case differ
from the case of a horse kicking through a fence?.. .
Where is the connection between the trespass to the land and
the damage to the mare? The former was per se a triviality ;
the latter was the serious question. . . . There is—or, at any
rate, in many cases, there may be—no essential, but only an
accidental connection between the trespass to the land and
the damage to the chattel or the person on the land. Ifa
man enters my land, tears my coat and breaks my head, it is
not a proper statement of it that he entered my land, whereby
he tore my coat and broke my head: there are two distinct
trespasses, one to the land, the other to the goods or person.
If this be so, the ordinary rules applicable to the acts of ani-
mals, apart from ownership of the soil, ought to have been
applied to the damage to the mare. If so, negligence or de-
fault would seem to have been essential to the right to re-
cover... . Wewould . . . suggest that to the spontaneous.
acts of animals the legal elements of trespass quare clausum

™L. R. 10 C. P. 10. See § 74; supra.

376 VICIOUS AND FEROCIOUS ANIMALS.

fregit are wholly wanting, and that all actions for such acts are
actions on the case, 7. e., where there is negligence or non-per-
formance of an absolute duty imposed by the law. The law
imposes a duty on the owner to restrain the known natural
propensities of his animal where the exercise of such propen-
sities would injure others: thus, where a dog is used to bite,
the owner must prevent him. Animals are generally inclined
to stray; therefore the owner must keep them from going on
the land of others. We incline to think that this, or some
such view, is the correct one.’ ®

In an old case, in trespass quare clausum fregit where the
declaration averred that, through the defendant’s negligence
‘in keeping, his horse broke into the plaintiff’s close and bit
his mares per quod they died, and verdict was for the plaintiff,
‘the court arrested the verdict because scienter was not al-
leged.® But in a note the accuracy of the report of this case
‘was questioned so far as it represented the action to have been
trespass quare clausum fregit: “Supposing the action to have
been trespass on the case, and the loss of the plaintiff’s mares to
have been the substantial injury complained of, it may then
indeed have been held necessary to allege a knowledge of the
horse’s propensity to bite.” 1°

It may here be said, incidentally, that where the plaintiff in
the defendant’s employment drove against his will a vicious
horse by which he was injured, it was held that the horse
was “plant” used in the defendant’s business, and that his
vice was a “defect” in the condition of such plant, within the
meaning of a statute4 On the other hand, where by a
clause in a railway contract for.éxcavation “all machinery and
other plant,” etc., provided by the contractor were to be the

*19 Sol. Jour. 211.

*Scetchet v. Eltham, Freeman C. P. 534.

“Ibid. note (a), citing Mason v. Keeling, 1 Ld. Raym. 606; Buxendin
‘v. Sharp, 2 Salk. 662, And see 1 Law Jour. 492.

“Yarmouth v. France, 19 Q. B. D. 647; S. P. Fraser v. Hood, 15 Rettie
(Se. Ct. Sess.) 178.

WILD AND DANGEROUS ANIMALS. 377

property of the company until the completion of the work,
when such as had not been used should be delivered to the
contractor, but in other clauses the words “team and horses”
were used as well as the word “plant,” it was held that horses
were not included in “plant” and that expert evidence was
not admissible to explain the meaning of the word? And
cab-horses were held not to be “plant” within the meaning of
the Bills of Sale Amendment Act 1882, providing that the
act should not a render a bill of sale void as to “any fixtures
separately assigned or charged and any plant or trade ma-
chinery.” “It is plain that the word ‘plant’ was intended to
refer to things more or less similar in kind to trade fixtures
or trade machinery.” In the Court of Appeal it was held
that cab-horses could not be said to be “used in, attached to
or brought upon” the premises, even if “plant” might some-
times include living animals. Chitty, L. J., said: “A horse
that turns a mill for grinding chalk, or the like might,
I think, be plant within the sub-section. But that case
would be quite different from the present, for there, the horse
would be used in the factory or other place where the mill
was.” 13

To return to the subject of the present section, Justice
Cooley in his work on Torts thus speaks of the liability of
the owners of animals fere nature: “Lord Hale says in re-
spect to injuries by beasts that ‘these things seem to be
agreeable to law: 1. If the owner have notice of the quality
of his beast and it doth anybody hurt, he is chargeable with
an action for it. 2. Though he have no particular notice
that he did any such thing before, yet if it be a beast that
is fere nature as a lion, a bear, a wolf, yea, an ape or a mon-
key, if he get loose and do harm to any person, the owner
is liable to an action for the damage, and so I knew it ad-
judged in Andrew Baker’s case, whose child was bit by a

* Middleton v. Flanagan, 25 Ont. 417.
London and East. Counties L. & D. Co. v. Creasey, [1897] 1 Q. B.
442; affirmed in Ibid. 768.

378 VICIOUS AND FEROCIOUS ANIMALS.

monkey that broke his chain and got loose. 3. And there-
fore, in case of such a wild beast, or in case of a bull or cow
that doth damage, where the owner knows of it, he must
at his peril keep him up safe from doing hurt, for though
he use his diligence to keep him up, if he escape and do harm,
the owner is liable in damages.’ 14 If this doctrine is good
law at this day, it must be because the keeping of wild beasts
accustomed to bite and worry mankind is unlawful, for if
the keeping of such beasts is not a wrong in itself, then no
wrong can come from it until some wrongful circumstance
intervenes: in other words until there is negligence. ...
The keeping of wild animals for many purposes has come
to be recognized as proper and useful; they are exhibited
through the country with the public license and approval;
governments and municipal corporations expend large sums
in obtaining and providing for them; and the idea of legal
wrong in keeping and exhibiting them is never indulged. It
seems, therefore, safe to say that the liability of the owner or
keeper for any injury done by them to the person or property
of others must rest on the doctrine of negligence. A very
high degree of care is demanded of those who have them in
charge, but if, notwithstanding such care, they are enabled
to commit mischief, the case should be referred to the cate-
gory of accidental injuries for which a civil action will not
lie.’ 15 And, in a note, he adds: ‘As to the law respecting
the keeping of wild animals, we should say that the higher
cultivation of the intellect of the mass of the people, as com-
pared with two or three centuries ago, and the recognition of
wants in human nature then ignored, must have worked some
changes, and that we must take up the common law of that
period in this as in many other particulars more to locate ac-
curately our point of departure than to fix definitely a stake
to which we must tie and adhere. When wild animals are

*1 Hale P. C. 430.
* Cooley Torts 348; approved of in 18 Am. L. Reg. 623.

WILD AND DANGEROUS ANIMALS. 379

kept for some purpose recognized as not censurable, all we
can demand of the keeper is that he shall take that superior
precaution to prevent their doing mischief which their pro-
pensities in that direction justly demand of him.”

93. Negligence and Contributory Negligence Although,
where the animal is known by the owner or keeper to be dan-
gerous, it is not necessary to aver or prove negligence in
its keeping,!® such negligence is, notwithstanding, frequently
a ground of liability, whether the owner has or has not a
knowledge of any propensity to do the kind of injury com-
plained of. For instance, where the defendant’s two grey-
hounds, coupled together, rushed against the plaintiff on a
highway, knocked him down and broke his leg, it was held
that the defendant was guilty of negligence though there was
no evidence of scienter. “The negligence alleged is not in al-
lowing dogs to be on the highway without restraint but in the
fact that these greyhounds coupled together were there with-
out being led or guided.” 17 And where the defendant, seeing
a cat running past in a public street, called to a dog beside him
to “seize it” and the dog, accordingly, gave chase and, while
doing so, knocked down and injured a child, it was held that
the defendant in setting a dog to chase a cat through the
street acted negligently and without due care for the passers-
by and was liable in damages.1® So, one who takes a dog
into a tram-car accepts an additional liability for any damage
it may occasion while in the car and it is not necessary to
prove a propensity on its part to do injury. Damages were,
accordingly, awarded to a passenger whose dress was de-
stroyed by a dog while it sat unsecured under the seat of the
car.?9

If an injury is caused by the ordinary propensity of an ani-

* See §-04, infra.

* Jones v. Owen, 24 L. T. N. S. 587.

* Brogan v. Worton, 78 Sc. L. Rev. (Sher. Ct. Rep.) 162.
* Thomson v. Cartmell, 10 Sc. L. Rev. (Sher. Ct. Rep.) 179.

380 VICIOUS AND FEROCIOUS ANIMALS.

mal and a servant is negligent in view of such propensity, the
owner is liable, though no specific exhibition of viciousness
has been brought to his knowledge.2® Thus, where a game-
keeper sent his dog after some boys who had trespassed on
the ground which he was appointed to watch and the dog
bit one of the boys, it was held that the keeper’s employer was
liable in damages.21_ But where a watchman in the defend-
ants’ employment set their dogs on the plaintiff, the defend-
ants were held not liable for the injuries as they had no knowl-
edge of the dog’s viciousness and, if they had, the watchman
was acting out of the sphere of his employment.??. Where a
passenger in an omnibus was injured by a blow from the hoof
of one of the horses which had kicked through the front panel,
and there was no evidence that the horse was a kicker but it
was shown that the panel bore the marks of other kicks and
that no precaution had been taken by the use of a kicking-
strap, etc., and no explanation was offered on the part of the
defendants, it was held that there was evidence of negligence
proper to be submitted to a jury.”8

The owner is bound to guard against the general propensi-
ties of the class to which the animal belongs as well as against
the special tendencies of the specific animal known to him.*4
But in an action in Scotland by a dairymaid against her mas-
ter for injuries received while removing cows from a field
where there was also a bull belonging to the defendant, which
attacked and trampled upon her, it was held that, as it was not
proved that the animal was vicious, the master was not liable.
The court said: “It is no doubt true that all bulls are of a

* Linnehan v. Sampson, 126 Mass. 506. See, also, with regard to lia-
bility for the acts of a servant, the cases cited in § 96, infra.

™ Macdonald v. Lye, 4 Sc. L. Rev. (Sher. Ct. Rep.) 376.

™ Gracie v. Hedderwick, 5 Sc. L. Mag. 75.

* Simson v. London Gen. Omnib. Co., L. R. 8 C. P. 390. And as to
liability resulting from kicking, see Gilbertson v. Richardson, 5 C. B. 502;
and Hardiman v. Wholley (Mass.), 52 N. E. Rep. 518, cited in § 76, supra.

“ Hammond v. Melton, 42 Ill. App. 186, where the animal was a stallion.
And see Meredith v. Reed, 26 Ind. 334.

NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE. 381

dangerous or at least uncertain temper and liable to be sud-
denly and unexpectedly excited; but is there any rule of law
that all bulls must be confined and shut up? Can we affirm in
this country, where the breeding of cattle is of so much im-
portance, that the owners of bulls are under an obligation to
treat them as wild beasts and in such a way as greatly to in-
terfere with the breeding of cattle? There is no authority for
that. I hold that the owner of a bull is only bound to use a
reasonable discretion, and is not bound to confine it unless
when it has shown some more than ordinary vicious propen-
sity; but there is nothing whatever of that kind in the evi-
dence. . . . The law of Scotland will not, any more than that
of England, make a master responsible for injury done by a
domestic animal unless it be an animal of unusually vicious
habits and propensities and known to the owner to be so.” 78

In another Scotch case, the Lord Chancellor said: ‘There
cannot be blame or negligence in the owner merely from his
allowing liberty to an animal which has not by nature the pro-
pensity to cause mischief. Blame can only attach to the
owner when after having ascertained that the animal has pro-
pensities not generally belonging to his race, he omits to take
proper precautions to protect the public against the ill con-
sequences of the anomalous habits.” ?® Of which dictum the
Journal of Jurisprudence says: “The observation of the Lord
Chancellor was all the more remarkable that it was contrary
to the law of England, and it was not intended as a statement
of the law of Scotland.” *”

The place where the animal is kept is often of importance
in deciding the question of negligence. Where the owner of
an unfenced pasture across which a road ran, not laid out as
ahighway but used as such, fastened a bull known to be
vicious so that it gored a person passing along the road, the
owner was held liable though he had warned the person not to

* Clark v. Armstrong, 24 D. (Sc. Ct. Sess.) 1315. See Dolph v. Ferris,
7 W. & S. (Pa.) 367, cited in § 92, supra.
* Fleeming v. Orr, 2 McQu. (Sc.) 14. = 25 Jour. Jurisp. 451.

382 VICIOUS AND FEROCIOUS ANIMALS.

pass. “It is negligence and want of ordinary care for a per-
son to keep a vicious bull or other dangerous animal inse-
curely fastened, upon his own premises at a place where other
persons are known to go, whether they have a right to go
there or not.” *8 So, one keeping a vicious dog must see that
it is secured so that a person going lawfully on his premises or
along the highway may not be injured.?® Otherwise, in Eng-
land, he is indictable for a misdemeanor.?° And where a dog
known to have attacked persons while guarding its master’s
team was left unsecured and unmuzzled on the sidewalk near
the sleigh and a young child meddled with the whip and was
attacked, it was held that the master was liable and that the
child’s act was not a defence.*!_ So, where a dog was tied in
an alley easy of access by a chain six feet long, and a police-
man while pursuing a suspicious character was bitten, the
owner of the dog was held liable, the keeping being negli-
gent under the circumstances.?2 And it was held negligence
to chain a dog that was large and powerful and suspected of a
disposition to attack strangers, under a table in a cabin where
the libellant had been assigned to sleep and where he had a
right to go.3#

But it is not a nuisance to keep a vicious dog to guard one’s
premises where it is cautiously used and sufficiently confined,
and this was held to be the case where the dog was so chained

* Glidden v. Moore, 14 Neb. 84. And see Mahoney v. Dwyer, 84 Hun
(N. Y.) 348; Graham v. Payne, 122 Ind. 403.

* Sylvester v. Maag, 155 Pa. St. 225; Roehers v. Remhoff, 55 N. J. L.
475; Conway v. Grant, 88 Ga. 40; Wheeler v. Brant, 23 Barb. (N. Y.) 324;
McGuire v. Ringrose, 41 La. Ann. 1029; Shultz v, Griffith, 103 Ia. 150;
Miller v. Bourbonniére, Rap. Jud. Quebec, 9 C. S, 413; Smillie v. Boyd, 14
Rettie (Sc. Ct. Sess.) 150.

As to dog owners’ rights and liabilities, with especial reference to Scotch
law, see 3 Sc. L. T. 61, 65, 81, etc.

*” Woolf v. Chalker, 31 Conn. 121, citing Burns’ Justice, 578.

™ Meibus v. Dodge, 38 Wis. 300. See also as to a child’s discretion,
Marsland v. Murray, 148 Mass. ot.

® Melsheimer v. Sullivan, 1 Colo App. 22.

“The Lord Derby, 17 Fed. Rep. 26s.

NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE. . 9383

that it could move along the portion of the premises to be
protected, but was secured from reaching anyone coming to
the house by any of the approaches provided for that pur-
pose.2* Where bees had been kept in a certain place for
eight years and had done no injury, this rebutted the idea of
the defendant’s knowledge that it would be dangerous to keep
them there.*®

In the Roman law also it was forbidden to have certain ani-
mals where there is a thoroughfare, under penalty of double
damages.?®

With regard to liability to trespassers, it has been held in
England that one bitten by a dog, in consequence of being
himself without right on the owner’s land, cannot recover
for the injury.27 The law is thus stated in the Irish Law
Times: ‘While, if a dog is known to be vicious, its owner
is under an obligation to keep it in proper restraint yet knowl-
edge that it is a vicious dog does not impose an obligation on
the owner’s friends and acquaintances to stay away from his
premises, and they are merely bound to exercise a reasonable
amount of precaution. The owner is excepted from liability
where the person injured was a trespasser, or where the dog
was kept in the owner’s own premises during the night to pro-
tect them. . . . But on the other hand, it is no ground of
defence that the dog was kept in premises during the day if
it was kept in such a position that it could attack a person
who calls at the premises on lawful business, whether of the
owner or of the visitor.” 38

* Woodbridge v. Marks, 17 N. Y. App. Div. 139.

® Earl v. Van Alstine, 8 Barb. (N. Y.) 630, the court saying, “The law
looks with more favor upon the keeping of animals that are useful to
man than such as are purely noxious and useless. And the keeping of
the one, although in more rare instances they may do injury, will be tol-
erated and encouraged, while there is nothing to excuse the keeping of
the other.”

See Salkowski’s Rom. Priv. Law § 137.

*Sarch v. Blackburn, 4 C. & P. 297. Though, if no suspicion is
thrown upon the plaintiff, he will be presumed to be rightly there: Ibid.

% or Ir. L. T. 53, citing Brock v. Copeland, 1 Esp. 203; Sarch v. Black-

384 VICIOUS AND FEROCIOUS ANIMALS.

The law is otherwise in the United States. One attacked
by a ferocious dog in the daytime, though he is technically a
trespasser on the premises, may recover in trespass against the
dog’s owner. “When the owner of such a dog has permitted
him to run at large on his own premises and a trespasser has
been bitten by him the owner has been holden liable... . A
man may not in this country use dangerous or unnecessary
instruments for the protection of his property against tres-
passers. Such instruments may be used in England, but the
principles on which their decisions purport to rest are not sus-
tainable or applicable here... . A dog is an instrument
for protection. A ferocious dog is a dangerous instrument
and the keeping him on the premises to protect them against
trespassers is unlawful, upon the same principle that setting
spring guns or concealed spears or placing poisonous foods is
unlawful.” °° But the decisions in which dogs have attacked
human beings though trespassers are not applicable where
one dog attacks another. The plaintiff must show that the
defendant’s dog was the aggressor or he cannot recover. “It
is one thing for a dog to be dangerous to human life and quite
another to be unwilling to have strange dogs upon the mas-
ter’s premises. . . . It [t. e., the judgment] can only be sup-
ported upon the broad ground that when two dogs fight and
one is killed, the owner can have satisfaction for his loss from
the owner of the victorious dog; and I know of no such
rule.” 4°

burn, supra; Curtis v. Mills, 5 C. & P. 489; Charlwood v. Greig, 3 C.
& K. 46.

And see Dandurand v. Pinsonnault, 7 Low. Can. Jur. 131.

* Woolf v. Chalker, 31 Conn. 121. And see Sherfey v. Bartley, 4 Sneed
(Tenn.) 58; Loomis v. Terry, 17 Wend. (N. Y.) 496; Pierret v. Moller,
3 E. D. Sm. (N. Y.) 574; Kelly v. Tilton, 2 Abb. App. Dec. (N. Y.) 495;
Kinmouth v. McDougall, 19 N. Y. Suppt. 771; Marble v. Ross, 124 Mass.
44.

That no notice of the vicious character of the dog need be given as
against trespassers, see Woodbridge v. Marks, 17 N. Y. App. Div. 139.

* Wiley v. Slater, 22 Barb. (N. Y.) 506.

NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE. 385

Damages lie for negligently keeping a savage and danger-
ous cock, whereby the plaintiff is pecked and injured.

The owner of bees is responsible for damage caused by
them, as stinging a horse to death, where proper care is not
taken to prevent it.*?

The owner of an animal is sometimes protected from lia-
bility where he has given notice of the character of the animal
beforehand to the person injured, as by a printed notice on
the outside of the premises.4* But it is otherwise where the
plaintiff is not in fault, as where he cannot read.44 Where
the vicious habit of the animal is directly dangerous, such
as kicking and biting in a horse, hooking in a horned animal
or biting in a dog, the owner, if he knows it, is bound to notify
those dealing with the animal, but not where the habit is not
one that would directly inflict an injury, as pulling. This
was held in a case where the plaintiff, while hitching a mare in
a stable, put the halter rope through a ring, when the mare
pulled back and the plaintiff’s finger was caught between the
rope and the ring and torn.*° And one hiring a horse to
another is bound to inform the latter of its vicious propensi-
ties; or he will be liable for resulting damages.*® A servant
engaged in his master’s business and bitten without provoca-
tion by a dog allowed to go at large has a right to damages
though he had been warned of the character of the dog.*7

The question of the plaintiff's negligence is often an im-
portant one in these cases. If this contributes materially to

* Walford v. Mathews, cited in 13 Ir. L. T. 288.

*” Tellier v. Pelland, 5 Rev. Leg. (Can.) 61.

* See the opinion of Bayley, J., in Ilott v. Wilkes, 3 B. & Ald. 304.

“Sarch v. Blackburn, 4 C. & P. 297. See, however, Prud’homme v.
Vincent, Rap. Jud. Quebec, 11 C. S. 27, where the owner was held not
liable, though the plaintiff could not read the notice.

* Keshan v. Gates, 2 Thomp. & C. (N. Y.) 288.

“Campbell v. Page, 67 Barb. (N. Y.) 113. So, of permitting a vicious
horse to run in a race: Lane v. Minn. State Agric. Soc., 62 Minn. 175,
67 id. 65. As to driving a vicious stallion, see Clore v. McIntire, 120 Ind.
262.

* Auprix v. Lafleur, 25 Low. Can. Jur. 251.

25

386 VICIOUS AND FEROCIOUS ANIMALS.

the injury, he cannot recover.*® Thus, one who needlessly
aggravates a dog cannot recover damages if he is bitten.*®
But an action may be brought for injuries by a dog to a boy
thirteen years old, where the boy struck the dog and incited
him to bite and was old enough to know that such would be
the probable result of his action, if the boy was exercising
such care as could reasonably be expected from one of his
age and capacity.*® So, a boy seven years old may recover
even if the biting was produced by his kicking the dog, and it
is not competent to show that at other times he had teased
and worried the animal.*

In an action for an injury by a vicious bull, the plaintiff may
recover though he drove the cow that attracted the bull and
first struck him on the head to drive him away.?. And the
fact that the plaintiff put his hand on one of two dogs in order
to prevent a fight and was bitten, does not necessarily show
contributory negligence. “In cases of this kind a great deal
depends on the size, the apparent disposition, the conduct
and the situation of the two dogs, and upon other circum-
stances which are usually proper for the consideration of a
jury.” °3 So, where the defendant, while interfering to part
two fighting dogs, in raising his stick accidentally struck the
plaintiff, it was held that if he used due care he was not liable
and that the burden was on the plaintiff to show the want of
due care.**

Where the plaintiff's horses were attacked by a dog and

“ Farhart v. Youngblood, 27 Pa. St. 331; Mareau v. Vanatta, 88 Ill. 132.

* Quimby v. Woodbury, 63 N. H. 370; Keightlinger v. Egan, 65 IIl.
235; Worthen v. Love, 60 Vt. 285; Bush v. Wathen (Ky.), 47 S. W. Rep.
599.

Otherwise, where the interference is accidental, as by inadvertently
stepping on the dog: Fake v. Addicks, 45 Minn. 37.

© Plumley v. Birge, 124 Mass. 57. And see Munn v. Reed, 4 Allen
(Mass.) 431. But see Pilon v. Shedden Co., Rap. Jud. Quebec, 9 C. S. 83.

* Linck uw Scheffel, 32 Ill. App. 17.

? Blackman v. Simmons, 3 C. & P. 138.

® Matteson v. Strong, 159 Mass. 497.

* Brown v. Kendall, 6 Cush. (Mass.) 292.

NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE. 387

kicked and became frightened, the fact that he rose to his
feet by the reins, afterwards falling out, was held not to show
contributory negligence.®* Nor the fact that a horse injured
by the bite of a dog was harnessed to a wagon and being led
tied behind another wagon.®® But where the plaintiff was
driving along the highway with the halter twisted around his
thumbs and his horse started by reason of the barking of the
defendant’s dog and his thumbs were injured, it was held that
the immediate cause of the injury being his negligence in so
arranging the halter, he could not recover.*”

In a New York case the rule as to contributory negligence
is thus stated: “If a person with full knowledge of the
evil propensities of an animal wantonly excites him or volun-
tarily and unnecessarily puts himself in the way of such an ani-
mal, he would be adjudged to have brought the injury upon
himself and ought not to be entitled to recover. In such a
case it cannot be said, in a legal sense, that the keeping of the
animal, which is the gravamen of the offense, produced the in-
jury. .. To enable an owner of such an animal to inter-
pose this defence, acts should be proved, with notice of the
character of the animal, which would establish that the person
injured voluntarily brought the calamity upon himself... .
As negligence in the ordinary sense is not the ground of lia-
bility, so contributory negligence in its ordinary meaning is
not a defence. These terms are not used in a strictly legal
sense in this class of actions, but for convenience. There is
considerable reason in favor of the doctrine of absolute lia-
bility for injuries produced by a savage dog, whose propensi-
ties are known to the owner, on the ground of its being in the
interest of humanity and out of regard to the sanctity of hu-
man life, but as these animals have different degrees of feroc-
ity, and the rule must be a general one, I think, in view of all
the authorities, that the rule of liability before indicated is a

® Meracle v. Down, 64 Wis. 323.

5 Boulester v. Parsons, 161 Mass. 182.

Vital v. Tétrault, Mont. L. Rep. 6 S. C. 501, reversing 4 id. 204, cited
in § 77, supra.

388 VICIOUS AND FEROCIOUS ANIMALS.

reasonable one, and that the owner cannot be relieved from it
by any act of the person injured, unless it be one from which
it can be affirmed that he caused the injury himself with full
knowledge of its probable consequences.” °°

In a later case in the same court where it was held that un-
due familiarity with a dog running loose, such as offering it a
piece of candy, on the part of one having no knowledge of its
viciousness, did not constitute negligence so as to relieve
the owner of liability, it was said: “If a person should
thrust his arm into a bear’s mouth and get bit, it could
not be said that the injury was caused by keeping the bear;
and so, if a person, knowing the vicious propensities of a dog,
should wantonly or wilfully do an act to induce the dog to
bite, or should unnecessarily and voluntarily put himself in
the way of the dog, knowing the probable consequences, the
same principle would apply.” °°

It has been held to be contributory negligence where the
plaintiff, knowing a dog was kept chained in a bed-room, suf-
fered his three-year old child to go there unattended; ©
where an employee goes voluntarily and unnecessarily near
a vicious dog kept chained on the employer’s premises,® or
within reach of a vicious stallion in a stable ;®* where a servant,
knowing a dog’s dangerous disposition, tried to feed it, while
chained, at the suggestion of a fellow-servant ;®° where one
imprudently goes on premises where a dog is kept in the

"Muller v. McKesson, 73 N. Y. 195.

*® Lynch v. McNally, 73 N. Y. 347.

The plaintiff may recover, if his position near a chained dog was such
as might be assumed by a person of ordinary sense and judgment: Woold-
ridge v. White (Ky.), 48 S. W. Rep. 1081.

® Logue v. Link, 4 E. D. Sm. (N. Y.) 63.

“ Daly v. Arrol Bros., 24 Sc. L. Repr. 150; Farley v. Picard, 78 Hun
(N. Y.) 560. And see Badali v. Smith (Tex. Civ. App.), 37 S. W. Rep.
642.

@ Buckley v. Gee, 55 Ill. App. 388. And see Fraser v. Hood, 15 Rettie
(Sc. Ct. Sess.) 178; Noel v. Duchesneau, Rap. Jud. Quebec, 15 C. S. 352.

“Werner v. Winterbottom, 56 N. Y. Super. Ct. 126.

NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE. 389

night-time ;** where the plaintiff voluntarily went into a place
where horses were sold, knowing that they were tried without
a protecting barrier, and the attendant hit a horse to make
him trot and he swerved and kicked the plaintiff.6° So an
employee assumes the risk of injury by elks and deer kept by
his employer when he voluntarily engages to work inside of
the enclosure in which they are kept.®®

On the other hand, it has been held to be no defence that
the plaintiff was warned the day before not to go near the
dog, if the jury think the accident was not due to his negli-
gence and want of caution ;®" that the plaintiff knew of a dog’s
habit of attacking teams and was not cautious in driving by
the defendant’s house, the latter having let the animal loose ;®°
that the plaintiff was walking fast and talking loud when at-
tacked by a dog;®® that the plaintiff passed near a horse
that he knew to be vicious, not knowing it was temporarily
unmuzzled ;7° that the plaintiff was unlawfully travelling on
Sunday when bitten by a dog;™ that a woman thrown off a
bridge by a passing bull had not left the bridge when she first
saw the bull ;"* that the plaintiff permitted his colt to trespass

* Brock v. Copeland, 1 Esp. 203.

® Abbott v. Freeman, 35 L. T. N. S. 783, reversing 34 id. 545. So,
where a spectator at a fair who had been warned to move back is injured
by a horse bolting the track; and neither the owner nor the fair associa-
tion is liable, both having been ignorant that the animal was unruly:
Hallyburton v. Burke Co. Fair Assn., 119 N. C. 526.

* Bormann v. Milwaukee, 93 Wis. 522.

* Curtis v. Mills, 5 C. & P. 489,—the court saying, “You may be of
opinion that, the master of the dog walking just before the plaintiff and,
as it were, leading him on, the plaintiff might think he was safe, more es-
pecially as no caution was given him at this time by the defendant.”

And see Marble v. Ross, 124 Mass. 44.

® Jones v. Carey, 9 Houst. (Del.) 214.

° Dockerty v. Hutson, 125 Ind. 102.

” Koney v. Ward, 36 How. Pr. (N. Y.) 255.

™ White v. Lang, 128 Mass. 598. “The act of travelling is a condition,
not a contributory cause of the injury.”” And see Schmid v. Humphrey,
48 Ta. 652.

® Barnum v. Terpening, 75 Mich. 557.

390 VICIOUS AND FEROCIOUS ANIMALS.

on another’s land, where it was killed by the defendant’s mule,
also trespassing and known by the owner to be vicious;*® that
one employed as a dressmaker went at her employer’s request
into the kitchen where she was bitten by a dog known by her
to be vicious but generally kept tied up: the risk was not in-
cidental to the service.7*

Nor can the negligent acts of others be imputed to the
plaintiff. Where A. was killed by the running away of
horses frightened by vicious dogs, in a suit brought by his
widow against the owner of the dogs, it appearing that A. was
not driving at the time, it was held that evidence of the
driver’s contributory negligence was inadmissible.7® And
where school children, without their teacher’s knowledge and
consent, during recess vexed a ram which attacked and in-
jured the teacher, this conduct cannot be imputed to the latter
in an act brought by her for her injuries.7°

The question of the care used by the plaintiff is one for the
jury under all the circumstances."

In some cases it has been held that the plaintiff must aver
and prove that he exercised due care,’® but this is contrary to
the weight of decisions.”®

The rule of comparative negligence exists, or formerly ex-
isted, in a few jurisdictions.®°

*® Hill v. Applegate, 40 Kan. 31.

™ Mansfield v. Baddeley, 34 L. T. N. S. 606. Cf. Fraser v. Hood, 15
Rettie (Sc. Ct. Sess.) 178, where one who was bitten while tying up, at
his master’s order, a horse known to be vicious, was held not entitled to
recover.

® Mann v. Weiand, 81* Pa. St. 243.

® Kinmouth v. McDougall, 19 N. Y. Suppt. 771.

™ Linnehan v. Sampson, 126 Mass. 506; Meier v. Shrunk, 79 Ia. 17.

® Williams v. Moray, 74 Ind. 25; Eberhart v. Reister 96 id. 478; Ray-
mond v. Hodgson, 161 Mass. 184. This was held to be the case where the
statute made the owner of a dog liable in damages “except when the party
injured is doing an unlawful act:” Stuber v. Gannon, 98 Ia. 228.

” Brooks v. Taylor, 65 Mich. 208; 27 Am. L. Reg., 636 n. and cases
cited; Hussey v. King, 83 Me. 568.

® See Marble v. Ross, 124 Mass. 44. The doctrine has been abolished
in Illinois: Cicero & P. St. R. Co. v. Meixner, 160 III. 320.

1
NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE. 391

If the act of a dog is the sole and proximate cause of
a horse’s shying and such shying is not caused by a vicious
habit, the fact that it contributed to the injury will not prevent
the plaintiff’s recovering against the dog’s owner. And if
the statute makes the latter liable regardless of the question
of care or negligence on his part, the fact that the colt is skit-
tish and the carriage unsafe is immaterial.8? And, although
an action will not lie where a horse is frightened simply by
seeing a dog lying or running in the street, it is otherwise
where a direct attack is made, whether by jumping and bark-
ing or by actual assault; nor is the fact that the rein broke
from a latent defect material.®?

94. Scienter.—Except in the case of animals fere nature,
it is essential to show that the owner or keeper of an animal
‘knew of its vicious or dangerous disposition: otherwise there
can be no recovery for an injury committed by it.8* He may,
however, if he fails to exercise ordinary supervision of an ani-
mal under his care, be chargeable with knowledge that he

* Denison v. Lincoln, 131 Mass. 236. The fact that the owner has seen
his dog run out to the fence and bark is not sufficient notice of its vicious
habit of jumping against the fence so as to frighten horses: Bradley v.
Myers, 10 Lanc. L. Rev. (Pa.) 137. j

’ Chickering v. Lord (N. H.), 32 Atl. Rep. 773.

® Sherman v. Favour, 1 Allen (Mass.) 191.

“ Buxendin v. Sharp, 2 Salk. 662; Mason v. Keeling, 1 Ld. Raym. 606;
Cox v. Burbridge, 13 C. B. N. S. 430; Chase v. McDonald, 25 U. C. C.
P. 129; Spring Co. v. Edgar, 99 U. S. 645; Shaw v. Craft, 37 Fed. Rep.
317; Pickering v. Orange, 2 Ill. 492; Wormley v. Gregg, 65 id. 251;
Mareau v. Vanatta, 88 id. 132; West Chicago St. R. Co. v. Walsh, 78 IIl.
App. 505; Perkins v. Mossman, 44 N. J. L. 579; State v Donohue, 49 id.
548; Staetter v. McArthur, 33 Mo. App. 218; Bell v. Leslie, 24 id. 661;
Murphy v. Preston, 5 Mackey (D. C.) 514; Knowles v. Mulder, 74 Mich.
202; Murray v. Young, 12 Bush (Ky.) 337; Woolf v. Chalker, 31 Conn.
121; Finney v. Curtis, 78 Cal. 498; Reed v. South. Expr. Co., 95 Ga. 108;
Meegan v. McKay, 1 Okla. 59; Coggswell v. Baldwin, 15 Vt. 404; Klenberg
v. Russell, 125 Ind. 531; Moynahan v. Wheeler, 117 N. Y. 285; Campbell
v. Brown, 19 Pa. St. 359; Kitchens v. Elliott, 114 Ala 290.

392 VICIOUS AND FEROCIOUS ANIMALS.

would have obtained by inquiry.8> If the animal is fere nat-
ure, that fact is in itself sufficient notice. In a case in the
Supreme Court of the United States it is said: “Certain ani-
mals fere nature may doubtless be domesticated to such an
extent as to be classed, in respect to the liability of the owner
for injuries they commit, with the class known as tame or
domestic animals; but, inasmuch as they are liable to relapse
into their wild habits and to become mischievous, the rule is
that, if they do so and the owner becomes notified of their
vicious habit, they are included in the same rule as if they had
never been domesticated, the gist of the action in such a case,
as in the case of untamed wild animals, being not merely the
negligent keeping of the animal, but the keeping of the same
with knowledge of the vicious and mischievous propensity of
the animal.” °°

Some of the cases go still further than the principle stated
above and hold that, even in the case of a domestic animal
like the dog, such knowledge is the sole ground of action and
that negligence in the keeping need not be shown. Thus in
a New York case it is said: “In some of the cases it is said.
that from the vicious propensity and knowledge of the owner
negligence will be presumed, and in others that the owner is
prima facie liable. This language does not mean that the
presumption or prima facie case may be rebutted by proof of
any amount of care on the part of the owner in keeping or re-
straining the animal and, unless he can be relieved by some
act or omission on the part of the person injured, his liability
is absolute. . . . It may be that, in a certain sense, an ac-
tion against the owner for an injury by a vicious dog is based
upon negligence; but such negligence consists not in the
manner of keeping or confining the animal or the care exer-

© Turner v. Craighead, 83 Hun (N. Y.) 112; Lawlor v. French, 14 Misc.
(N. Y.) 497, 2 N. Y. App. Div. 140; Lynch v, Richardson, 163 Mass. 160;
Hayes v. Smith, 8 O. C. D. 92. But see Laherty v. Hogan, 13 Daly (N.
Y.) 533.

“ Spring Co. v. Edgar, 99 U. S. 645.

SCIENTER. 393

cised in respect to confining him, but in the fact that he-is
ferocious and that the owner knows it, and proof that he is
of a savage and ferocious nature is equivalent to express no-
tice.” 87

So, where a watch-dog was kept chained on account of its
ferocity but broke the chain and bit a person who was passing
the house, it was held that the owner in keeping a dog that
he knew to be ferocious must take all the risk of doing so,
and therefore the fact that he took reasonable precaution to
restrain it which ultimately by unforeseen accident turned out
insufficient, did not protect him from liability for the injuries
sustained.*§

The same rule was applied to the case of a stallion, after
notice of its propensity to attack mankind.®°

It is questionable, however, whether a rule that is appli-
cable to the keeping of wild and comparatively useless animals
like lions, tigers and bears should be extended to the case of
animals whose very ferocity may be the ground of their use-
fulness, if the owner has taken every reasonable precaution to
confine them and prevent injury.°° Otherwise, the only con-
clusion would be that it is the legal duty of the owner of an
animal that is unfriendly to strangers, however attached to
him, to kill it, though its services may be very valuable and
though he is able and willing to use every means to guard

* Muller v. McKesson, 73 N. Y. 195.

And see Lynch v. McNally, Ibid. 347.

* Burton v. Moorhead, 18 Sc. L. Repr. 640.

*° Hammond v. Melton, 42 Ill. App. 186. So of a bull or cow: 1 Hale
P. C. 430, quoted in § 92, supra.

See the dissenting opinion of Crockett, J., in Laverone v. Mangianti,
41 Cal. 138, where it is said, “I think the more reasonable rule is an-
nounced in Sarch v. Blackburn . . . to the effect that every one has a right
to keep a watch dog for the protection of his premises and is only respon-
sible for injuries resulting from negligence in the keeping. .. . If the
earlier cases establish a different rule, the interests of society demand that
it should now be abrogated, considering the various useful purposes for
which such animals are now employed.”

394 VICIOUS AND FEROCIOUS ANIMALS.

others from any possible danger. This is an advance even on
the old doctrine laid down in Smith v. Pelah *! where “the
Chief Justice ruled that if a dog has once bit a man and the
owner having notice thereof keeps the dog and lets him go
about or lie at his door [facts which might naturally go to
show negligence], an action will lie against him at the suit of
a person who is bit, though it happened by such person’s
treading on the dog’s toes, for it was owing to his not hang-.
ing the dog on the first notice. And the safety of the King’s
subjects ought not afterwards to be endangered. The scienter

is the gist of the action.” And see the remarks of Justice
Cooley on the keeping of animals fere nature, quoted in § 92,
supra.

It seems to be admitted, however, that negligence need not
be averred or proved in the first place, the burden being on
the defendant to disprove that implied imputation.9? Justice
Cooley says of the case of May v. Burdett,®* often cited as
holding that negligence is no element in such an action: “The
decision in this case seems to be that the keeper of such an
animal is prima facie responsible for the injuries done by it,
but it is not decided that he may not meet the case by showing
that he observed in respect to it proper care.’’ °4

Scienter need not be shown where the injury is committed
by an animal while trespassing, as was said above, the gist
of the action there being the trespass and the injury being an
aggravation thereof.

" 2 Strange 1264.

@ Spring Co. v. Edgar, supra. And see Partlow v. Haggarty, 35 Ind.
178; Popplewell v. Pierce, 10 Cush. (Mass.) 509; Snow v. McCracken, 107
Mich, 49; Jackson v. Smithson, 15 M. & W. 563.

9 Q. B. ior.

“Cooley Torts 348. And see Briscoe v. Alfrey, 61 Ark. 196, where the
owner of an unaltered mule, kept in a well-fenced stable, was held not
liable for the consequences of its breaking out at night without his knowl-
edge.

* See § 76, supra. See, also, the article in 19 Sol. Jour. 211, quoted in
§ 92, supra.

SCIENTER. 395

The knowledge need not be of any specific act: knowledge
of a general vicious propensity is sufficient.°® As was said
in a Washington case: “According to the more modern and
reasonable doctrine, it is not necessary that he should have
had actual positive notice. If he has notice that the disposi-
tion of the animal is such that it would be likely to commit
an injury similar to the one complained of, it is sufficient. It
is not necessary that the notice be of injury actually com-
mitted. Thus, in case of a dog known to be vicious and
ferocious by its keeper, it is unnecessary to show that he had
previously bitten any person. The keeper of such a dog
must see to it that he is kept securely or be responsible for all
injury done by him.” ®”

So in an article in the Journal of Jurisprudence it is said:
“We do not think the dog is entitled to one worry or one bite.
In the first place, this doctrine is rather hard upon the man
who is privileged to receive the honor of the first bite. . . . It
does seem to us that the distinction of the English law be-
tween the fere nature and fere mansuet@ is somewhat arti-
ficial, and is irrelevant to the question of fault and consequent
reparation. It is artificial because a dog is not originally and
is not necessarily a domesticated animal, any more than a
monkey is. Both may be tamed and both are. But some
traces of the wild blood do occasionally manifest themselves
with no apparent reason for it. . . . The real ground of lia-
bility is culpa. It is the scienter, the knowledge of the animal’s
propensity to do hurt that fixes the date of the liability. But

* Argersinger v. Lever, 17 N. Y. Civ. Proc. 352; McGarry v. N. Y. &
H. R. Co. 60 N. Y. Super. Ct. 367; McCaskill v. Elliott, 5 Strobh. L.
(S. C.) 196; Barnum v. Terpening, 75 Mich. 557; Renwick v. Von Rot- °
berg, 2 Rettie (Sc. Ct. Sess.) 855; Worth v. Gilling, L. R. 2 C. P. 1;
Charlwood v. Greig, 3 C. & K. 46; Wood v. Vaughan, 28 N. B. 472, 18
Can. Sup. Ct. 703.
~ * Robinson v. Marino, 3 Wash. 434.

And in Canada “ ‘the first bite’ is not admitted as a defence to an action
for injury done by a dog, however good its reputation may have been
previously:” 13 Leg. News (Can.) 314.

396 VICIOUS AND FEROCIOUS ANIMALS.

when does the scienter begin? Surely not, as the English law _
has it, only when the owner becomes aware that the particular
dog has done damage or has attempted to do damage; and
everybody knows that dogs are apt to bite and do
damage.” *8

And in a Vermont case it is said: “The formula used in
text-books and in forms given for pleadings in such cases,
‘accustomed to bite,’ does not mean that the keeper of a fero-
cious dog is exempt from all duty of restraint until the dog
has effectually mangled or killed at least one person. But,
as he is held to be a man of common vigilance and care, if he
had good reason to believe, from his knowledge of the fero-
cious nature and propensity of the dog, that there was
ground to apprehend that he would under some circum-
stances bite a person, then the duty of restraint attached;
and to omit it was negligence.” 9°

On which these comments are made in a Missouri case:
“We are inclined to go further even than Judge Redfield and
to hold with some authorities that proof of the mischievous
character of an animal and previous knowledge thereof by the
owner or keeper is sufficient to sustain a recovery, even
though the animal was neither malicious nor ferocious. . . .
It is immaterial to the victim whether the dog bit him in play
or in malice.” 19° But it is not sufficient to show merely that
a dog has the habit of bounding upon people, but not so as to
hurt them.'°! Where a dog leaped upon a porter and caused

* 25 Jour. Jurisp. (Sc.) 454. And in 34 Sol. Jour. 686, reference is made
to “the long exploded fallacy, first propounded, we believe, by Lord
Cockburn in a Scotch case, that ‘the law of England allows each dog to
have one worry with impunity.’ ”

* Godeau v. Blood, 52 Vt. 251, 254, per Redfield, J. And see Flansburg
v. Basin, 3 Ill. App. 531; Kolb v. Klages, 27 id. 531; Warner v. Chamber-
lain, 7 Houst. (Del.) 18; Kennett v. Engle, 105 Mich. 693; Rider v. White,
65 N. Y. 54.

™ Staetter v. McArthur, 33 Mo. App. 218, 222. See also State v.
McDermott, 49 N. J. L. 163; Hathaway v. Tinkham, 148 Mass. 85.

*™ Line v. Taylor, 3 F. & F. 731.

SCIENTER. 397

him to drop a piece of coal on the plaintiff’s foot, an action
was held maintainable, scienter being alleged.

Knowledge of a particular injury committed by the animal
is sufficient to make the owner liable for injuries of a similar
kind.1°? Thus, the owner of a dog that has destroyed one
kind of animal is liable for its destroying another kind, when
he lets it run at large.°* “If a man keeps a dog which is
accustomed to bite sheep, etc., and the owner knows it and
notwithstanding he keeps the dog still, and afterwards the dog
bites a horse, this shall be actionable, notwithstanding that the
precedents are all of the same species; because the owner,
after notice of the first mischief, ought to have destroyed or
hindered him from doing any more hurt. Now in this case
the fact was that the boar had bit a child before, of which the
defendant had notice, and afterwards he bit this mare of the
plaintiff's.” 1°

And so, where a dog killed sheep, evidence was admitted
that four years before he had attacked and bitten a child to the
defendant’s knowledge.1°* But in another case it was said:
“Tf a dog is known to have killed one sheep—a jury would be
able from their knowledge of that animal to infer that he
would kill another, if an opportunity presented itself. If so,
the owner would in law be liable. But if a dog is known to
have bitten a man, a jury would not be apt to infer that he

Fraser v. Bell, 14 Rettie (Sc. Ct. Sess.) 811.

*8 Reynolds v. Hussey, 64 N. H. 64; Mann v. Weiand, 81* Pa. St. 243;
Cuney v. Campbell (Minn.), 78 N. W. Rep. 878; Kittredge v. Elliott,
16 N. H. 77; Arnold v. Norton, 25 Conn. 92; Fairchild v. Bentley, 30
Barb. (N. Y.) 147; Webber v. Hoag, 8 N. Y. Suppt. 76; Bauer v. Lyons,
23 N. Y. App. Div. 204.

And it is no defence to show that the animal is generally inoffensive:
Buckley v. Leonard, 4 Den. (N. Y.) 500.

Pickering v. Orange, 2 Ill. 338. * Jenkins v. Turner, Ld. Raym. 1009.

% Gettring v. Morgan, 5 W. R. 536. And see Woolf v. Chalker, 31
Conn. 121, 128, where it is said: “If a dog becomes mischievous and in-
clined to injure the property of others, ‘his owner is bound to restrain him
on the first notice’ and liable for any mischief he may thereafter do to
property of any kind.”

398 VICIOUS AND FEROCIOUS ANIMALS.

would kill a sheep, because the one act proceeds from vora-
ciousness, the other from combativeness, and fierce dogs are
not so apt to be sheep-killing dogs. Ifa bull so far loses sight
of his submission to the ‘dominion of man’ as on one occasion
to rebel and offer combat, it does not follow as a matter of
course that he would be likely to attack a horse, and that fact
must be decided by the jury from the nature of the animal, the
provocation and other circumstances attending the act.” 1%
So, in an action to recover damages for personal injury from
being bitten by a vicious dog, it was held that the owner’s
knowledge of the dog’s propensity to bite men, not merely
other animals, must be proved.1°® And the owner of a stallion
was held not liable for injuries from its kicking in the absence
of proof that it had before kicked a human being.1°® So, the
fact that a mare ordinarily gentle is in the habit of kicking
horses when in heat does not impose upon the owner any
duty to restrain her at other times, and consequently he is not
responsible for her kicking another horse when not in
heat.17° And in an action to recover damages for the kick of
a horse, mere evidence that for some months prior to the acci-
dent it had been seen to snap at persons on different occa-
sions and had kicked a stableman, but only when punched
with sticks and tickled and teased—was held insufficient to
show scienter on the owner’s part.1!!

And, generally speaking, the act must be such as to furnish
a reasonable inference that the animal is likely to commit an
act of the kind complained of, and this is a matter to be de-
cided by the jury, not by the court.1!2

“Cockerham v. Nixon, 11 Ired. L. (N. C) 269. And see Hartley
v. Harriman, 1 B. & Ald. 620.

“ Keightlinger v. Egan, 65 Ill. 235. Thus, it is not sufficient that the
owner knew that the dog had attacked and bitten a goat: Osborne v.
Chocqueel, [1896] 2 Q. B. 109. And see Norris v. Warner, 59 II.
App. 300.

™ Durrell v. Johnson, 31 Neb. 796. ™ Tupper v. Clark, 43 Vt. 200.

™ McHugh v. Mayor, 31 N. Y. App. Div. 290.

™ Cockerham v. Nixon, 11 Ired. L. (N. C.) 269, quoted supra.

SCIENTER. 399

With regard to the knowledge of a servant in charge of an
animal the rule has been stated as follows: “It is important
to notice that in some cases and under certain circumstances
the knowledge of a servant, although not communicated to
his master, may be equivalent to the knowledge of the master.
The test in such a case would appear to be whether the serv-
ant in question was in such a position with regard to the cus-
tody of the animal or the control of the premises in which the
animal was kept, as to render it natural and proper that com-
plaint should be made to him of acts of viciousness and to
make it his duty to report the same to his master.” 11%

Therefore where a person was bitten by a dog on the
premises of a corporation, and the dog had previously
bitten a person within the knowledge of some of the
servants who had no control over the affairs of the corpora-
tion, or over the animal, it was held that the defendants were
not liable, there being no evidence of their knowledge of the
dog’s character.1!4

It is otherwise where the servant has been put in charge
of the premises or of the animal: in that case his knowledge
is imputable to the master.17° And notice to one of several
joint keepers is notice to all.11¢

In some instances the proof of scienter on the part of the
owner has been dispensed with by statute.*7 This is fre-
quently the case in the interest of the farming community

"8 Garrett Nuisances 158.

™4 Stiles v. Cardiff Steam Navig. Co., 33 L. J. Q. B. 310. And see Har-
ris v. Fisher, 115 N. C. 318; Twigg v. Ryland, 62 Md. 380; Friedmann
v. McGowan (Del.), 42 Atl. Rep. 723; Colget v. Norrish, 2 Times L.
Rep. 471.

™ Baldwin v. Casella, L. R. 7 Ex. 325; Applebee v. Percy, L. R. 9
C. P. 647; Corliss v. Smith, 53 Vt. 532; McGarry v. N. Y. & H. R. Co.,
6o N. Y. Super. Ct. 367; Keenan v. Gutta Percha, etc., Mfg. Co., 46 Hun
(N. Y.) 544; Byrne v. Morel (Ky.), 49 S. W. Rep. 193; Brown v. Green
(Del.), 42 Atl. Rep: gg1.

"8 Hayes v. Smith, 8 O. C. D. 92:

“7 See Pressey v. Wirth, 3 Allen (Mass.) 191; Gries v. Zeck, 24 O. St.

400 VICIOUS AND FEROCIOUS ANIMALS.

where sheep are killed by dogs.48 Where the owner of a
dog was made liable by statute without proof of scienter for
injuries to any “cattle and sheep,” it was held that the word
“cattle” included horses.1!9 But proof must be given in all
cases not specially covered by the statute.’”°

With regard to this rule requiring the plaintiff to prove
Scienter, it was said in Murphy v. Preston :1*! “It is true that
this principle has recently been sharply criticised (1 Taylor’s
Ey. 279), but it has the countenance of the earliest decisions;
and these accord with the rule announced by the Hebrew law-
giver in Exodus, that, if an ox gore a man or a woman, the
owner shall go free unless ‘the ox were wont to push with
his horn in time past, and it hath been testified to his owner,
and he hath not kept him in,’ in which case only the owner
should be held liable.”

On the other hand, in an article in the Law Times the
following remarks are made: “Among the minor absurdities
and iniquities which still infest and disfigure our jurispru-
dence, there is none more absurd and iniquitous than the rule
under which the owner of a domestic animal is exempted from
liability for damage inflicted by the animal, unless the animal
was, to his knowledge, of a vicious or mischievous disposi-
tion. .. . It has always struck us as intolerable that a person

3290; Koestel v. Cunningham, 97 Ky. 421; Orne v. Roberts, 51 N. H. 110;
Newton v. Gordon, 72 Mich. 642; Schaller v. Connors, 57 Wis. 321.

Cf. Slinger v. Henneman, 38 Wis. 504.

“® See Kerr v. O’Connor, 63 Pa. St. 341; Kertschacke v. Ludwig, 28 Wis.
430; Trompen v. Verhage, 54 Mich. 304; Jacobsmeyer v. Poggemoeller,
47 Mo. App. 560; Job v. Harlan, 13 O. St. 485; Cockfield v. Singletary,
15 Rich. L. (S. C.) 240; Reg. v. Perrin, 16 Ont. 446; Smith v. Buck,
29 N. B. 268.

As to culpa on the part of the owner of a sheep-killing dog, under the
Scotch law, see Smith v. Hurll, 1 Sc. L. Rev. (Sher. Ct. Rep.) 246; Turner
v. McLaren, 3 id. 57; Duncan v. Rodger, 7 id. 313; Howison v. White,
8 id. 318; Taylor v. McKerrow, 13 Jour. Jurisp. (Sc.) 104; McIntyre v.
Carmichael, 8 Macph. (Sc. Ct. Sess.) 570.

“° Wright v. Pearson, 38 L. J. Q. B. 312.

™ Osincup v. Nichols, 49 Barb. (N. Y.) 145. 5 Mackey (D. C.) 514.

SCIENTER. 401

who has been injured by an animal, say, for instance, bitten by
a dog—and who has, perhaps with difficulty, succeeded in dis-
covering the dog’s owner should also have the burden cast
upon him of instituting an investigation into the dog's
antecedent character; of making out, if the fact were so, that
the dog had previously bitten others or was presumably of a
savage disposition, and that the owner was aware of the dog’s
savage acts or proclivities. To compel such an inquiry is to
aggravate the original injury. The proof is seldom easy,
often impossible, as the facts may and generally do lie
peculiarly within the knowledge of the owner who is di-
rectly interested in concealing any savagery on the part
of the animal. Moreover the rule itself is utterly des-
titute of any reasonable foundation. Qui sentit commodum
debet et sentire onus. Knowledge or the absence of knowledge
on the part of the owner of the animal’s disposition ought to
have no effect whatever on his civil liability for the animal’s
acts. Inacriminal prosecution the fact of knowledge would
be all important, animus being an essential element, and there
could be none without knowledge. The distinction between
civil and criminal procedure in such cases is clear and well
marked. If indeed knowledge is requisite to fix the owner
with civil liability, then we say that it should be made an
irrefragable presumption of law that the owner of a domestic
animal must be aware of the indubitable fact that all animals
from sickness or other causes are liable to accessions of ill-
temper in which they may be expected to commit savage acts
foreign to their natural or ordinary disposition, and that some
classes of these animals are also liable to a peculiar madness,
and have then the power of communicating disease and death
in their most awful and repulsive forms, and we say that on
such presumption of knowledge the owner should be made
liable accordingly. . . . They manage these things better in
France. Art. 1385 of the Code Napoléon is as follows: “Le
propriétaire d’un animal ou celui qui s’en sert pendant qu'il

est 4 son usage est responsable du dommage que |’animal a
26

402 VICIOUS AND FEROCIOUS ANIMALS.

causé soit que l’animal fit sous sa garde, soit qu'il fat égaré
ou échappé.’ Here we have a broad, intelligible principle,
clearly expressed, which we ought to adopt from our neigh-
bors as speedily as may be, and rid ourselves of the anti-
quated barbarism and sophistry which make it necessary to
prove the scienter in these cases.” 1?”

95. Evidence.—The defendant’s knowledge of the vicious
character of his animal may be proved in many ways. In
most cases it is made out by showing that he has seen or been
informed of previous attacks.12 The fact that he keeps a
dog tied or chained in the daytime is also evidence of scien-
ter.124 A report in the neighborhood that a dog had been
bitten by a mad dog has also been held to be evidence of scien-
ter)” though it has been said that this case “cannot be sup-
ported on any good grounds, and may be considered of no au-
thority.” 126 It has been held proper, however, to show the
general reputation of a dog as vicious and dangerous for the
purpose of raising an inference that the owner knew of his
vicious propensities.127 And where there is evidence that the
defendant knew of the dog’s biting on other occasions, evi-

™ 4g L. T. 181. And see similar views expressed in 1 Law Jour. 492;
to Sol. Jour. 320; The Jurist, quoted in 11 Pitts. Leg. Jour. 180 and io
Us GC. La Je 74,

“87 Am. L. Reg. 655.

™ Montgomery v. Koester, 35 La. Ann. 1091; Goode v. Martin, 57 Md.
606; Brice v. Bauer, 108 N. Y. 428; Hahnke v. Friederich, 140 id. 224;
Warner v. Chamberlain, 7 Houst. (Del.) 18; Cotton v. Walpole, 34 Jour.
Jurisp. (Sc.) 155.

The act of the jurors in going on the premises with one of the defend-
ants, who took hold of the chain which held the dog at the time of the
injury and stretched it to show how far it would reach, was held to be
misconduct as to entitle the plaintiff to a new trial: Wooldridge v. White
(Ky.), 48 S. W. Rep. 108r.

“6 Jones v. Perry, 2 Esp. 482. 7 Am. L. Reg. 6509.

“Cameron v. Bryan, 89 Ia. 214; Trinity & S. R. Co. v. O’Brien (Tex.
Civ. App.), 46 S. W. Rep. 389; Friedmann v. McGowan (Del.), 42 Atl.
Rep. 723; Cuney v. Campbell (Minn.), 78 N. W. Rep. 878.

But see Norris v. Warner, 59 Ill. App. 300.

EVIDENCE. 403

dence is admissible that the fact of his savage disposition is
notorious in the neighborhood.1*8 And the plaintiff may
show by a former owner that the dog was vicious though the
defendant had no knowledge of the acts testified to, where
there is other evidence of his knowledge of the animal’s
viciousness.'”°

Proof that the defendant had warned a person to beware
of a dog is evidence of scienter,;18° and so is a promise to
make compensation if the injury could be proved—though
entitled to little weight.1%? In an earlier case it was held not
sufficient to show that the dog was of a savage disposition
and usually tied up and that the defendant promised pecuni-
ary satisfaction after biting, there being no proof of his having
before bitten any other person;1°? but this is certainly con-
trary to the weight of authority.1%* Evidence of the treat-
ment of the dog after the accident is admissible to show his
previous character.134 Where by statute it is not necessary
to show scienter on the part of the owner of a dog biting a per-
son off of the owner’s premises, the peaceable character of
the animal is not admissible in evidence.'*°

Notice to a wife has been held sufficient to show scienter in a
husband,1** though the converse has been denied.197 This
would depend, however, on the local law governing marital

“8 Fake v. Addicks, 45 Minn. 37. And see Broderick v. Higginson,
169 Mass. 482.

“° Plummer v. Ricker (Vt.), 41 Atl. Rep. 1045.

A witness cannot be permitted to testify to exclamations made by the
plaintiff while asleep, to the effect that “the dog was biting him,” “take
him off,” etc.. Ibid.

1 Judge v. Cox, 1 Stark, 227. ™ Thomas v. Morgan, 2C., M. & R. 496.

* Beck v. Dyson, 4 Camp. 108.

48 See 7 Am. L. Reg. 650, where this case is considered to have been
overruled by Thomas v. Morgan, supra.

™4 Webber v. Hoag, 8 N. Y. Suppt. 76.

*6 Kelly v. Alderson, 19 R. I. 544.

# Gladman v. Johnson, 36 L. J. C. P. 153. And see Barclay v. Hart-
man, 2 Marv. (Del.) 351.

87 Miller v. Kimbray, 16 L. T. N. S. 360.

404 VICIOUS AND FEROCIOUS ANIMALS.

rights and duties. Where the defendant was informed where
he bought a bull that it had been tied up for two years and was
advised to restrain it, proof of this was held sufficient to make
him liable without actual negligence.**®

Where the plaintiff wearing a red handkerchief was at-
tacked by a bull driven along a public highway, the defend-
ant’s statement that the color of the handkerchief had caused
the injury and that he knew bulls would run at red things
was held to be evidence of scienter of the animal’s mischievous
propensity. “We think it was the duty of the defendant not
to suffer such an animal to be driven in the public streets,
possessing as he did the knowledge that, if it met a person
with a red garment, it was likely to run at and injure him.” 18°

In an action to recover for injuries from a vicious horse, evi-
dence of its docile character after the accident was held not
admissible,!*#° and such evidence would, in fact, prove noth-
ing. But, on the other hand, evidence of a stage-horse’s mis-
behavior twenty months after the accident was held admissi-
ble.*4? When a dog is shown to have bitten before, evidence
that at other times he did not bite is not admissible.4?
Where the others showed that their dogs the summer before
had gone among their sheep without molesting them, it is
competent for the plaintiffs to prove that sheep-killing dogs
are not accustomed to attack the sheep of their owners, but
that they go away to do it.1#8

* Rogers v. Rogers, 4 N. Y. St. Repr. 373.

*° Hudson v. Roberts, 6 Ex. 697. And see Linnehan v, Sampson, 126
Mass. 506.

“° Knickerbocker Ice Co. v. De Haas, 37 Ill. App. 195.

™ Kennon v. Gilmer, 131 U. S. 22, citing Todd v. Rowley, 8 Allen
(Mass.) 51, 58; Maggi v. Cutts, 123 Mass. 535; Chamberlain v. Enfield,
43 N. H. 356.

™ Linck v. Scheffel, 32 Ill. App. 17.

*“ Dover v. Winchester (Vt.), 41 Atl. Rep. 445, where it was also held
that the fact that dogs killed sheep in one place in one way is no evidence
that they killed, in another place, sheep which appeared to have been
killed in the same way, as the two facts were not related in any way to one
another.

EVIDENCE. 405

A dog may be brought into court and shown to the jury
so that they may judge of its disposition.**

Where a horse that was being led swerved to the sidewalk
and kicked the plaintiff, it was held proper to receive in evi-
dence a village ordinance forbidding anyone to lead a horse
on a sidewalk.1*°

96. Liability of Owner or Keeper; Joint and Several Liability. —
As a general rule, the person liable for an injury committed
by an animal is the owner or, if the animal is not in his possess-
ion, its harborer or keeper. That one who knowingly harbors
a vicious animal is responsible for its actions, whether he is the
owner or not, is well established in all the cases.1#® Espe-
cially is this so where such keeping is without the consent or
authority of the real owner ;147 and, conversely, a keeper in his
own wrong cannot bring an action against the owner.'#8

With regard to who is a “keeper,” it has been said: “The
party who shall be held responsible for an injury committed
by a dog must be—not one who harbors a dog and permits
it to remain temporarily upon his premises . . .: he must be
in a different sense the keeper of the dog;—and . . . he only
is liable who, ‘having the possession and control of a house
or premises, suffers and permits a dog to be kept on the prem-
ises in the way such domestic animals are usually kept—as
a member of the family, so to speak.’ 149 So in another case
it is said: “A man may own a dog and yet not be his keeper.

™ Line v. Taylor, 3 F. & F. 731.

“8 Grinnell v. Taylor, 85 Hun (N. Y.) 85.

“8 M’Kone v. Wood, 5 C. & P. 1; Frammell v. Little, 16 Ind. 251; Wil-
kinson v. Parrott, 32 Cal. 102; Bundschuh v. Mayer, 81 Hun (N. Y.) 111;
Keenan v. Gutta Percha, etc., Manufg. Co., 46 id. 544; Hornbein v.
Blanchard, 4 Colo. App. 92; Marsel v. Bowman, 62 Ia. 57.

4T Mitchell v. Chase, 87 Me. 172.

*® Burnham v. Strother, 66 Mich. 5109.

“Cummings v. Riley, 52 N. H. 368. And see O’Hara v. Miller, 64
Ta. 462; Shultz v. Griffith, 103 id. 150; O’Donnell v. Pollock, 170 Mass.
441; Boylen v. Everett (Mass.), 52 N. E. Rep. 541; Plummer v. Ricker
(Vt.), 41 Atl. Rep. 1045; Fitzgerald v. Brophy, 1 Pa. Co. Ct. 142.

406 VICIOUS AND FEROCIOUS ANIMALS.

One may take somebody else’s dog to keep. For instance,
a man may be from home and temporarily or permanently
have his dog cared for in another family; and whoever has
him under these circumstances is the keeper of the animal.’”°°

An innkeeper is, in England, deemed to be the owner of a
dog living in his hotel and is liable for injuries to cattle caused
by it, notwithstanding the dog was at the time under the
control of a person staying at the hotel, to whose care it had
been committed by the real owner.1*4

The law as to liability has thus been laid down in the
Journal of Jurisprudence: “It seems to us that the liability of
the original owner depends upon whether the animal has
passed beyond his control or not, and that is a question of
fact. Ifit has passed beyond his control, it does not matter
whether the custodier is trustworthy or not; and, if it has not,
the trustworthiness of the custodier . . . is not a defence.
The owner must take the responsibility of the custody and
precautions being effectual. ‘It is a nice question’ says Mr.
Shearman (§ 197) ‘to determine how far the notice which
the legal owner of an animal has ofits habits is to be imputed
to other persons having it in charge and standing in the posi-
tion of the owner in respect to third persons. Against one
who unlawfully takes an animal the case is clear. Having
unlawfully assumed the position of an owner under circum-
stances which by his own fault prevented him from knowing
the nature of the animal, he should bear all the burdens and be
charged with the knowledge or notice chargeable to the real
owner.’ This last case is clear enough; but as regards the
case of a borrower, it is only his actual knowledge that should
make him liable. On the principle that knowledge is re-
quired to make one liable for the acts of the animal, how can
it be contended that he is liable when in point of fact he had

*° Burnham v. Strother,supra. In Kentucky it was held that the owner
of a dog is liable for injuries inflicted by it, while under the control of a
kennel club: Bush v. Wathen (Ky.), 47 S. W. Rep. 599.

* Gardner v. Hart, 44 W. R. 527.

LIABILITY OF OWNER OR KEEPER. 407

not such knowledge? But if the owner transfers the custody
of an animal which he knows to be dangerous without com-
municating his knowledge and mischief ensues, it is he who
being in fault ought to be responsible. Mr. Shearman draws
a distinction between a gratuitous borrower and a borrower
for hire. The latter has a right to have information of the
quality of the article let on hire, and a claim against the owner
if any damage results from that information not being com-
municated. The borrower for hire, says Mr. Shearman, has
a claim over the lender ‘which affords more grounds for hold-
ing him responsible for the possession of the information to
which he has thus a right.’ But if the borrower has not the
knowledge, he is not responsible to third persons. If he suf-
fered damage himself, he would have a claim against the
lender. And surely the borrower’s claim against the lender
affords no ground of liability in a question with third persons.
The claim possibly might not be effectual. The lender may
be a man of straw from whom nothing could be obtained. In
a question with third persons, the relations between the
lender and the borrower do not seem of any importance.” 1°?

The question of liability often rises as between employer
and employee. It has been held that the employer is not
liable for mischief done by a dog belonging to a hired laborer,
where the dog was in the habit of following its master daily
to his work on the employer’s farm and of returning each
night with its master and staying at his house.*®*

Where a dog belonged to a hired man living with the de-
fendant and there was no evidence that it was kept for the
latter’s benefit or service, it was held that the question
whether he was the keeper of the dog was for the jury, not for
the court.154

152

25 Jour. Jurisp. (Sc.) 528. And see Cowan v. Dalziel, 5 Rettie (Sc.
Ct. Sess.) 241.

*° Auchmuty v. Ham, 1 Denio (N. Y.) 495. And see Simpson v. Griggs,
58 Hun (N. Y.) 393.

™ Whittemore v. Thomas, 153 Mass. 347.

408 VICIOUS AND FEROCIOUS ANIMALS.

But where the dog belonged to a toll-keeper, it was held
that an action could not be brought against the owner of the
bridge, it appearing that he did not keep or harbor the dog
in person, nor authorize or require it to be kept nor need that
it should be kept for the conduct of his business.15° And the
fact that a dog owned by the superintendent of the poor-farm
of a city is kept at the farm with the knowledge of one of the
overseers and, without his objecting thereto, is fed with food
furnished by the city for the use of the farm and during a
part of the time is allowed the run of the farm, does not as a
matter of law show that the city is the keeper of the dog and
liable for its injuring anyone ;'** nor are the directors of an
almshouse liable where a steward’s dog, after his removal, is
left on the premises without their authority or acquies-
cence,157

Where there was evidence tending to show that a dog was
kept about the stable of a horse-car company by a person em-
ployed by them to have charge of the same and with the
knowledge and implied assent of their superintendent, it was
held that the jury might properly find that the dog was kept
by the company.1®8 And where a vicious animal was used
in the business of a theatrical company, it was held that the
president and manager who controlled the business and could
hire and discharge animals was responsible for injuries done
by it.15°

If the owner of the premises knows of the dangerous char-
acter of a dog owned by his agent and permits him to retain
it and let it run at large on the premises, the former is liable

* Baker v. Kinsey, 38 Cal. 631. ™* Collingill v. Haverhill, 128 Mass. 218.

A municipal corporation is not liable for damages resulting from the
negligence of its officers in giving an employee a vicious and unsafe horse
to use: Backer v. West Chic. Park Commrs., 66 Ill. App. 507.

“' Sproat v. Direc. of Poor, 145 Pa. St. 508.

™ Barrett v. Malden & M. R. Co., 3 Allen (Mass.) ror.

™® Lawlor v. French, 14 Misc. (N. Y.) 497. This decision was reversed
in 2.N. Y. App. Div. 140, on the ground that the evidence was insufficient
to show knowledge of viciousness.

LIABILITY OF OWNER OR KEEPER. 409

for any damage done to a passer-by.1® And if the owner
of a dog in possession of his bailee declines to take care of
it at the latter’s request, or to consent to proper measures
being taken to prevent its doing mischief, he is liable for any
resulting injuries.1%

An uncle who permitted a minor nephew living with him to
keep a dog known to be vicious, was held liable for injuries
caused thereby to a child, the court adding, “We do not wish,
however, to be regarded as assenting to any general rule that
the owner of the premises on which a dog may be harbored
is liable for its vicious acts regardless of the age, employment
or home of its owner, or the circumstances under which the
injury was inflicted. The question of liability must depend
on the circumstances in each case.” 18% Where a father put
his dog in the hands of his son to keep it from his creditors,
the son having the right of control, the latter was held liable
for an injury committed by the dog.1®

The question of liability as between husband and wife de-
pends necessarily on local laws. In New York in an action
against both to recover damages for the bite of a dog, it ap-
peared that the husband owned the dog but kept it upon his
wife’s premises on which they both lived, she paying the ex-
penses of the household and being aware of the dog’s
character. There was no evidence that the husband had
property on the premises or was her tenant or had control of
her property or directed the animals or knew of the dog’s
nature, and it was sought to hold him simply on the ground
of his marital liability for his wife’s torts. It was held that she
was liable and that a judgment against him was erroneous.'®*
The fact of her owning the premises does not make her liable,
however, for injuries by her dogs where the husband is a

*® Harris v. Fisher, 115 N. C. 318.

1 Tettis v. Horning, 67 Hun (N. Y.) 627. And see Renwick v. Von
Rotberg, 2 Rettie (Sc. Ct. Sess.) 855.

*® Snyder v. Patterson, 161 Pa. St.98. ** Marsh v. Jones, 21 Vt. 378.

™ Quilty v. Battie, 135 N. Y. 201.

410 VICIOUS AND FEROCIOUS ANIMALS.

householder, supporting the family.1° And where a dog,
obtained to protect premises owned in part by the defendant's
wife, went to the defendant on the death of the other part-
owner, the defendant was held liable as owner and harborer
for injuries caused by it.1%

The fact that a wife carries on a separate business on her
husband’s premises does not make her, as a matter of law,
keeper of dogs there and liable for their biting.*®”

In a case in Canada, a bear belonging to one of the defend-
ants escaped from premises, the separate property of the wife,
the other defendant, where it had been confined by him with-
out her objecting thereto. It was held that, as she had a legal
right to have it removed and had not done so, she was liable
for an injury caused to the plaintiff.1® This decision was
commented on in the Canada Law Journal as follows: ‘““The
Divisional Court was of opinion that the fact that the wife
suffered the bear to remain upon her premises made her
equally responsible with the owner, her husband, for its safe
keeping. We believe that in this respect this case carries the
law beyond any previous decision that is to be found in the
books. The relationship of husband and wife would for-
merly have protected her from all liability and it certainly does
not now, even under the altered state of the law as to the
wife’s capacity to hold property, impose on the wife any
greater liability than if she were a stranger to her husband.
She is held liable because the law has given her the same do-
minion over her separate property as she would have if a
feme sole, with all responsibilities which that dominion
entails; and one of those responsibilities the court has
determined to be the due keeping of any wild animals she
suffers to be brought upon her property. This is an effect of

Bundschuh v. Mayer, 81 Hun (N. Y.) 111. And see Strouse v. Leipf,
tor Ala. 433.

* Kessler v. Lockwood, 42 N. Y. St. Repr. 563.

*" McLaughlin v. Kemp, 152 Mass. 7.

*8 Shaw v. McCreary, 19 Ont. 39.

LIABILITY OF OWNER OR KEEPER. 411

the Married Women’s Property Act which was hardly con-
templated. This liability, if it exists, is not confined to mar-
ried women, but must be one that is common to all persons
who permit wild animals to be brought upon their premises:
e. g.. an inn-keeper who takes in a strolling tramp and his
dancing bear would appear under this decision to be respon-
sible not only for any injury the bear might do while on his
premises, but also for any injury it may do off his premises,
should it break loose in the night. This is, as we have said,
an extension of the law of liability for damages occasioned by
wild animals beyond any previous decision; and it is worthy
of consideration whether the principle which is laid down in
this case is a sound one, and a legitimate development of
the previous decisions on the subject. . . . When Lord Ten-
terden spoke of keeping a dog about one’s premises, he can
hardly be intended to imply that the liability depends on the
question of the actual ownership of the land on which the ani-
mal is harbored. He must be understood in the colloquial
and not the strictly legal sense, 7. ¢., the premises on which a
man lives or carries on his business, though they may, in no
strictly legal sense, be his. It could hardly be supposed that
if a man-leases land from another for the purpose of keeping
a menagerie that he thereby imposes on his landlord a liabil-
ity for any damage which his wild animals may do by escaping
from the demised premises. . . . But does the case of a hus-
band living with his wife upon her premises stand in any
different position? Are not the wife’s premises for the pur-
pose of keeping anything he may choose to bring upon them
to be deemed the husband’s premises? Can he be said to be in
any different position than a tenant at sufferance? He is
there lawfully by the consent of the owner and, being there, he
brings upon the premises a wild animal ; if he were in sole pos-
session, his wife could hardly be held responsible because she
happened to be the rightful owner of the property, and it is
somewhat difficult to see why a more extended liability can
arise merely from the fact that she happens to be also living

412 VICIOUS AND FEROCIOUS ANIMALS.

on the property and carrying on her own business there. . . .
The mere permission to bring a bear upon one’s premises is
not per se a wrongful act; the wrong is occasioned by the neg-
lect of the owner or keeper of the animal safely to keep it,
so that it may not do harm. That appears to be a wrong for
which the owner or keeper of the animal alone is responsible,
and not the person who merely passively permits him to use
his land on which to keep it.” 1®°

The defendant is the “owner and keeper” of a dog though
it is kept at a house owned by him as member of a firm,
Where the liability is on either the owner or the keeper and
the defendant is declared as both, that must be proved?” A
statute making the “owner” or “keeper” of a dog liable does
not create a joint or several liability, and one who fails to col-
lect a judgment against one cannot bring an action against
the other.171_ But, as a rule, all who take part in harboring a
dog may be sued jointly.1%

Liability for the acts of another depends on whether the
other person is acting within the scope of his authority, actual
or apparent. The owner of a dog is therefore not liable for
the wilful act of his servant or child in setting it on another’s
cattle.17? And if he keeps the dog properly secured and
another lets it loose and urges it to mischief, the former is not
liable.17* But where a groom touched a horse with a spur and
it kicked the plaintiff, it was held that the act of using the spur
so near the plaintiff made his master responsible for the in-
jury.17® And the owner ofa vicious horse which kicked a

* 26 Can. L. Jour. 421. 7 Grant v. Ricker, 74 Me. 487.

™ Galvin v. Parker, 154 Mass. 346. ™ Hayes v. Smith, 8 O. C. D. 92.

™ Steele v. Smith, 3 E. D. Smith (N. Y.) 321; Tifft v. Tifft, 4 Denio
CN. Y.) 175.

See, also, Macdonald v. Lye, 4 Sc. L. Rev. (Sher. Ct. Rep.) 376; Gracie
v. Hedderwick, 5 Sc. L. Mag. 75, cited in § 93, supra.

™ Fleeming v. Orr, 2 Macq. H. L. Cas. (Sc.) 14, where proof that A.’s
dog killed B.’s sheep was held not sufficient, as another might have let
him loose.

*° North v. Smith, 10 C. B. N. S. 572.

LIABILITY OF OWNER OR KEEPER. 413

colt at a fair was held not to be relieved from liability by the
fact that his servant had, without his knowledge or consent,
temporarily placed the animal in charge of a third person.17*
A joint owner of a ram is chargeable with damage done by it
by butting while in the co-owner’s pasture, though the latter
in the former’s absence and without his advice, put it in the
pasture without trying to restrain it,—the former having
given no directions as to restraining the animal and not
having been consulted as to keeping it;1"7 nor can he enforce
a claim for contribution against the co-owner unless there has
been an undertaking to indemnify.17° Where a person pass-
ing between a carriage and a team of horses on opposite sides
of a street is kicked by the team against the carriage and in-
jured, he cannot recover jointly against persons who without
concert placed the obstructions there.**®

The rule of liability where animals of several owners commit
a trespass together has already been stated,1®° and applies to
other kinds of injury as well. In the absence of statutory pro-
visions to the contrary, a joint action will not lie against the
owners of animals doing mischief.‘8! “When the dogs of
several persons do mischief together, each owner is only liable
for the mischief done by his own dog; and it would be repug-
nant to the plainest principles of justice to say that the dogs
of different persons, by joining in doing mischief, could make

”® Campbell v. Trimble, 75 Tex. 270.

7 Oakes v. Spaulding, 40 Vt. 347.

8 Spaulding v. Oakes, 42 Vt. 343.

” Bard v. Yohn, 26 Pa. St. 482. 189 See § 76, supra.

11 Adams v. Hall, 2 Vt. 9; Van Steenburgh v. Tobias, 17 Wend. (N. Y.)
562; Denny v. Correll, 9 Ind. 72; Dyer v. Hutchins, 87 Tenn. 198; Nieren-
berg v. Wood, 59 N. J. L. 112.

And see Flansburg v. Basin, 3 Ill. App. 531, where it is said: “It is not
necessary to consider whether there can be joint liability of owners for
a joint attack of their dogs; as it is not so with cattle, it is probably not
so with dogs.”

See, however, Smith v. Hurll, 1 Sc. L. Rev. (Sher. Ct. Rep.) 246, where
a different rule is stated.

414 VICIOUS AND FEROCIOUS ANIMALS.

their owners jointly liable. This would be giving them a
power of agency which no animal was ever supposed to

possess.” 182

And where a statute provided that every owner or keeper
of a dog should “forfeit to any person injured by such dog
double the amount of damages sustained by him,” it was held
that each owner was liable only for the damage done by his
own dog and not for the whole damage done by two dogs."88
But where the statute made the owner of a dog injuring sheep
liable for “all damages so done,” he was held liable for all
damages in the doing of which the dog took part with other
dogs, and it was held to be no defence that one of the dogs
so engaged belonged to the sheep-owner.’$* And, by statute,
the owner of a dog that injures or kills sheep is often made
liable for the entire amount of damage done with other
dogs.18> With regard to criminal liability it was said in Rex
v. Huggins 18° “Tf through negligence the beast goes abroad
after warning or notice of his condition, it is the opinion of
Hale that it is manslaughter in the owner. And if he did pur-
posely let him loose and wander abroad, with a design to do
mischief, nay, though it were but with a design to fright peo-
ple and make sport, and he kills a man, it is murder in the
owner.”

97. Action; Pleading; Damages.— Where damage is com-
mitted by an animal in its owner’s absence, the regular remedy

* Russell v. Tomlinson, 2 Conn. 206.

But see Rowe v. Bird, 48 Vt. 578, where it is said: “It is elementary and
a familiar rule in actions of tort that each or all are liable for a joint tres-
pass.” See, also, Murray v. Brown, 19 Sc. L. Repr. 253, where it was held
that each of the owners of dogs which had worried sheep was liable for
the whole damage on the ordinary rule applicable to joint delinquents.

“ Buddington v. Shearer, 20 Pick. (Mass.) 477.

™ Worcester Co. v. Ashworth, 160 Mass. 186.

* McAdams v. Sutton, 24 O. St. 333; Kerr v. O’Connor, 63 Pa. St. 341;
Remele v. Donahue, 54 Vt. 555.

2 Ld. Raym. 1574, 1583.

ACTION ; PLEADING ; DAMAGES. 415

is case, not trespass ;1§7 though it has been held that trespass
may be brought. “The person who will not house or chain
his dogs becomes consenting to the mischief which they
commit, and takes upon himself the risk of saying—Go at
large; if you destroy sheep, I will pay for them. It is not like
the doing some act, innocent in itself, from which the person
could not reasonably infer that injury or damages would fol-
low and which, when they did happen, were rather the result
of accident or misadventure than design.” 188 And where a
dog was set upon some horses, one of which, while being pur-
sued and jumping a fence, was killed, it was held that trespass
was the proper remedy.1®?

Such an action may survive the plaintiff's death by statute
though it does not at common law.1*°

Ii a dog owned or kept in one State strays into another and
there bites a person, no action lies against the owner or keeper
under a statute of the former State dispensing with proof of
scienter on the part of the owner.1*4

By the Roman Law where a domestic animal has com-
mitted an injury by no one’s fault an actio de pauperie lies, pau-
peries being damage inflicted without a wrongful act on the
part of the agent. An action on the case lies where the injury
by the animal is the result of another’s act or neglect.1%?

In pleading, it has already been said that it is not necessary
to aver negligence in keeping.’®* Nor need the place of

87 Dilts v. Kinney, 15 N. J. L. 130; Stumps v. Kelley, 22 Ill. 140; Mul-
herrin v. Henry, 11 Pa. Co. Ct. 49; Fallon v. O’Brien, 12 R. I. 518.

8 Daff v. Slack, 7 Pa. St. 254. And see Dolph v. Ferris, 7 W. & S.
(Pa.) 367.

1 Painter v. Baker, 16 Ill. 103, quoting Lord Ellenborough: “If I put
in motion a dangerous thing, as if I let loose a dangerous animal, and
leave to hazard what may happen, and mischief comes to any person,
I am answerable in trespass.”

™ Prescott v. Knowles, 62 Me. 277.

Le Forest v. Tolman, 117 Mass. 109.

12 See Salkowski’s Rom. Priv. Law § 137.

8 See § 94, supra.

416 VICIOUS AND FEROCIOUS ANIMALS.

keeping be alleged,!®* nor that it was the duty of the defend-
ant to use reasonable care.1°° The plea of “not guilty” puts
in issue the ferocity of the animal and the scienter of the de-
fendant.1%°

The amount of damages should include such as naturally
arose from the injury sustained, as medical attendance,
suffering and inability to attend to business.1%’ Proof of
the plaintiff's daily earnings is admissible.1°* In the case
of the bite of a dog, especially in a warm climate, it is a very
serious matter outside of the actual pain. The dangers of
lockjaw, the fear of hydrophobia, and the general shock to the
system are all to be taken into consideration.1% So, evidence
was held admissible that a child ever since the bite had shown
signs of fright and excitement at the sight of any dog.?°
And where the petition alleged that the plaintiff was still suf-
fering, it was held that damages should not be limited to the
date of bringing the suit.2°" But damages for future pain and
anguish are not allowed unless the petition alleges that the
plaintiff has not recovered.*°? The action may be brought
without regard to the extent of the bite or the size of the
dog.?°° Where a dog that had previously bitten the plaint-
iff's wife flew at her when she was enceinte and caused a mis-
carriage, the defendant was held liable. ‘The law is settled
that if a breach of duty exposes a person toward whom the
duty is contracted to obvious peril, the act of the latter in en-
deavoring to escape from the peril, although it may be the

™ Brooks v. Taylor, 65 Mich. 208.

* Card v. Case, 5 C. B. 622. * Thid.

™ Warner v. Chamberlain, 7 Houst. (Del.) 18; Gries v. Zeck, 24 O.
St. 329.

* Hubert v. Bedell, 50 N. Y. St. Repr. 251.

* The Lord Derby, 17 Fed. Rep. 265.

* Roswell v. Leslie, 133 Mass. 580.

So, injuries to a flock of sheep by fright may be shown: Campbell
v. Brown, 19 Pa. St. 350.

*™ Lemoine v. Cook, 36 Mo. App. 193.

” Shultz v. Griffith, 103 Ia. 150. ” Ritter v. Ewing, 4 Pa. Dist. 203.

ACTION ; PLEADING ; DAMAGES. 417

immediate cause of the injury, is not the less to be regarded as
the wrongful act of the wrong-doer.” 2° Where an infant
child had been wounded by a vicious animal and thereby been
disfigured or deformed, it was held that the father could re-
cover only for such expenses as he incurred in healing the
original wound, not for those incurred in removing the de-
formity or disfiguration.?°°

Where a statute gives double damages for injuries from
dogs to “any person injured,” a parent may bring an action
for the loss of services of a minor child and the expenses to
which he is put.2°° But a statute giving double damages to
one whose domestic animal is killed by a dog was held penal
and not designed for cases where the owner of the dog was
in no matter at fault; it did not apply to the case of a mad
dog.207

Exemplary damages have been granted in the case of the
bite of a dog where gross negligence has been proved ;?°° and
where scienter need not be shown by statute evidence of it is
admissible in aggravation of damages.?°® But where one
voluntarily assisted in harnessing a vicious horse, it was held
that vindictive damages were not recoverable.?"°

In the absence of proof as to how much damage was done
by each of a number of animals, the presumption is that all
did equal damage.?!1_ But where two dogs of different sizes
killed sheep in the dark, the jury were held to have rightly

4 Hall v. Atkinson, London Law. Jour., cited in 14 Alb. L. Jour. 104.

> Karr v. Parks, 44 Cal. 46.

*§ McCarthy v. Guild, 12 Metc. (Mass.) 201.

7 Elliott v. Herz, 29 Mich. 202. And see the dissenting opinion.

7° Meibus v. Dodge, 38 Wis. 300; Hahn v. Kordula, 5 Kan. App. 142;
Falardeu v. Couture, 2 Low. Can. Jur. 96.

Where the injury occurred through the negligence of the carrier’s serv-
ant in fastening the dog, punitive damages cannot be recovered from the
carrier: Trinity & S. R. Co. v. O’Brien (Tex. Civ. App.), 46 S. W.
Rep. 380.

2 Swift v. Applebone, 23 Mich. 252; Koestel v. Cunningham, 97 Ky. 421.

20 Brown v. Green (Del.), 42 Atl. Rep. 991.

2 Partenheimer v. Van Order, 20 Barb. (N. Y.) 479.

27

418 VICIOUS AND FEROCIOUS ANIMALS.

determined that the bigger dog killed more sheep.71? The
plaintiff cannot recover for the aggravation of his wound by
improper surgical treatment.?**

Though a statute imposes on a town the duty of paying
damages for sheep killed by dogs, the law will not imply a
contract to doit, there being no consideration therefor.?!4
Where the statute charged the owner of such a dog with the
amount of damage done as fixed by the selectmen of the
town, without an opportunity of being heard, it was held so
far unconstitutional.*1° Otherwise where the statute implies
that if the matter is not settled without suit, the fact of the
injury and the amount of damages are to be determined in
other suits for which provision is made.?1°

*? Wilbur v. Hubbard, 35 Barb. (N. Y.) 303.

*8 Moss v. Pardridge, 9 Ill. App. 490.

4 Davis v. Seymour, 59 Conn. 531.

A town paying such damages succeeds to the rights of the owner and
may, by statute, maintain a joint action against the owners of the dogs:
Fairchild v. Rich (Vt.), 34 Atl. Rep. 692.

“5 Fast Kingston v. Towle, 48 N. H. 57.

*° Wilton v. Weston, 48 Conn. 325.

TTTEGE. ¥,

BAILMENT AND CARRIAGE.

CHAPTER I.
BAILMENT.
98. Nature of bailment. 103. Action; damages.
g9. Rights of the bailee. 104. Agistment.
too. Duties and liabilities of the 105. Lien of agistors and trainers.
bailee. 106. Breeding.
tor. Negligence of servants. 107. Livery-stable keepers.

102. Driving or riding beyond the 108. Lien of livery-stable keepers.
agreed point; Sunday driv- roo. Innkeepers.
ing.

98. Nature of Bailment.—The principles of the law of Bail-
ment as applied to animals involve many peculiarities that
require careful consideration. Where an animal is borrowed,
the borrower is bound to exercise extraordinary care over
it! Where it is hired, the degree of care required is such
as is usual with men of ordinary discretion in the use of their
own property.2 The latter rule applies to all cases where the
possession of the animal is for the joint advantage of bailor
and bailee.2 Therefore, if one who wishes to buy a horse,
takes it on trial and it dies or is injured in his possession, he

* Hagebush v. Ragland, 78 III. 4o.
? Howard v. Babcock, 21 Ill. 259; Bennett v. O’Brien, 37 id. 250; Moore
uv. Cass, 10 Kan. 288.
* Jackson v. Robinson, 18 B. Mon. (Ky.) 1.
419

420 BAILMENT.

is liable only for lack of ordinary care.* And where the
plaintiff having a horse for which he had no use, to avoid the
expense of keeping it, requested the defendant to take it and
do his work with it in consideration of its food and keeping,
this was held not to be a mere gratuitous loan, under which
the defendant would be required to use extraordinary care but
a contract for the mutual benefit of both parties under which
ordinary care was sufficient. In ordinary cases of borrow-
ing, however, the bailment does not lose its gratuitous char-
acter because the bailee pays for the keep of the animal while
he has it in his possession. Where a horse was placed by
A. in B.’s possession with the understanding that it was to be
worked for its food and was to do A.’s plowing and milling
and to be used by A. when she wanted it, this was held to be a
contract of bailment and governed by the principle that the
bailee cannot dispute the bailor’s title.”

Where one rides a horse at the request of the owner for the
purpose of exhibiting and offering it for sale without any
benefit to himself, he is bound to use such skill as he pos-
sesses and, if proved to be skilled in the management of
horses, is equally liable with a borrower for an injury done
to the horse.®

An agreement whereby one undertakes to make a horse
gentle and fit for the use of the owner’s family in consider-
ation of permission to ride it, is a contract of hiring and nota
gratuitous loan.® So, one who is hired to drive horses is
like a bailee for hire and liable only for negligence, unskilful-
ness or wilful misconduct.4° One with whom a horse is left

“La Borde v. Ingraham, 1 Nott & McC. (S. C.) 419; Nichols wv. Balch,
8 Misc. (N. Y.) 452; Colton v. Wise, 7 Il] App. 395.

* Chamberlin vw. Cobb, 32 Ia. 161. ° Bennett v. O’Brien, 37 Ill. 250.

™ Maxwell v. Houston, 67 N. C. 305.

* Wilson v. Brett, 11 M. & W. 113. But there being no personal benefit,
it may be doubted whether extraordinary care could be required in such
a case.

’ Neel v. State, 33 Tex. Cr. 408.

* Newton v. Pope, 1 Cow. (N. Y.) 109.

NATURE OF BAILMENT. 421

to be trained must take such care of it as an ordinarily prudent
person would take of his own property."?

If A. delivers cattle to B. who promises to re-deliver them
within one year with the natural increase and to pay for such
as should be lost or destroyed, this is letting the cattle for a
valuable consideration, viz., the return of the increase, and
not a mere naked bailment.!?

A contract by which a yoke of cattle was delivered to a
hirer “to keep and use in a farmer-like manner for one year”
and then to return them, with the privilege of paying an
agreed price and keeping them, the hire being paid at the
time, was held to be a bailment, not a conditional sale.t3 So,
where A. delivered to B. two colts under a contract that
B. should keep and sell them before a certain date for A.,
who fixed the minimum price,—if not, that he should return
them in good condition.1*

Where A., having found out the price of B.’s horse, asked
to take and try it, promising to return it in good condition
if he did not like it, and the horse was delivered by B. to A.’s
servant, but, on the way to the latter’s house and without the
servant’s fault, escaped, was injured and was not tried by
A. or returned to B., it was held that an action for the price
could not be maintained, as the contract was one of bailment,
not of sale.1®

Where B. undertook to transport A.’s cattle to his farm at
his expense and there care for them for some weeks in order
that they might be profitably marketed by A., and agreed
that they should not deteriorate in flesh or condition, that he
would pay for all losses, and employ at his own expense a
herdsman selected by A., and be compensated by the money

™ Kimball v. Dahoney (Ky.), 38 S. W. Rep. 3.

® Putnam v. Wyley, 8 Johns. (N. Y.) 432.

% Chamberlain v. Smith, 44 Pa. St. 431. And see Colton v. Wise, 7 Ill.
App. 395.

™ Middleton v. Stone, 111 Pa. St. 589.

* Hunt v. Wyman, 100 Mass. 198.

422 BAILMENT.

realized from the sale of the cattle exceeding a stated sum
per head, after deducting expenses of shipment and sale, and
also waived any lien against the cattle,—this was held not
to be a conditional sale but a bailment.’®

99. Rights of the Bailee.—Before considering the important
question of the responsibilities of the bailee, a few words may
be said regarding some of his rights.

The lessee of an animal cannot be divested of possession
by the lessor’s sale to a third party; 1" and the lessor is liable
in trover if he removes the animal before the term has ex-
pired18 Nor asa general rule can the owner recover if the
animal is injured by doing the very thing contracted for,®
though this rule has qualifications that will be considered
later. And where a horse is let on a contract providing that
on a day’s notice it should be returned in the same condition
as when received, its death without the bailee’s fault is an
excuse for non-compliance.?°

Where both parties are silent as to the number of persons
who may ride in a hired carriage, the hirer may carry such a
number as the vehicle was made for, not exceeding the ordi-
nary load adapted to the team.24_ And the hirer of a horse is
authorized to put on the horse, in addition to his own weight,
such reasonable baggage as is usual for men to carry on
horseback.??

* Union Stock-Yards & Transit Co. v. Western Land & Cat. Co., 50
Fed. Rep. 49.

“ Hardy v. Lemons, 36 La. Ann. 146. See Mahon v. Crowe, 28 Nov.
Sco. 250.

* Hickok v. Buck, 22 Vt. 149.

. The owner of a horse left at another’s stable to be boarded at a certain
rate per week cannot end his responsibility for board by mere notice
without accepting possession of the horse: Andrews v. Keith, 168 Mass.
558.

* Ruggles v. Fay, 31 Mich. 141.

” Amer. Preservers Co. v. Drescher, 4 Misc. (N. Y.) 482; Whitehead v.
Vanderbilt, 10 Daly (N. Y.) 214.

7 Harrington v. Snyder, 3 Barb. (N. Y.) 380.

? McNeill v. Brooks, 1 Yerg. (Tenn.) 73.

RIGHTS OF THE BAILEE. 423

Where one undertakes to drive another's horses to a dis-
tant market and sell them as he would his own and becomes
ill on the way and unable to attend to them in person, he
may employ an agent to do so without incurring additional
liability.22 And where A. asked the agent of the seller of
a horse to let him have it to try and the agent did so, it was
held that A. was entitled to put a competent person on the
horse and not limited to trying it himself.**

The bailee of an animal may maintain an action against
a third person for an injury to the animal.??> Thus, where the
gratuitous bailee of a horse turned it into a field at night
surrounded by a fence which his neighbor neglected to repair
and by reason thereof the horse fell into an adjoining field
and was killed, it was held that the bailee could recover the
value of the horse in an action.2® So, the bailee with whom
a yoke of oxen are left “as a pawn or indemnity” for the
return of a hired horse, may maintain detinue against any
person who does not show a better title.2” And the bailee
may sue for the breach of a contract for the transportation of
the animal,?® or for the conversion of an animal unlawfully
impounded.?°

Where the hirer has paid the owner, the value of the ani-
mal may properly be recovered in an action by the hirer
against the person through whose negligence it was killed.*°

But where the owner of a horse delivered it to the plaintiff,
an auctioneer, for sale with liberty to use it till sold, and the
horse, while driven by the plaintiff’s servant along a highway,

78 McLean v. Rutherford, 8 Mo. tog.

* Camoys (Lord) v. Scurr, 9 C. & P. 383.

* Hare v. Fuller, 7 Ala. 717; Harrison v. Marshall, 4 E. D. Smith (N.
Y.) 271.

He may recover for an injury done to it by a trespassing animal: Mason
v. Morgan, 24 U. C. Q. B. 328, cited in § 76, supra.

> Rooth v. Wilson, 1 B. & Ald. 59. ** Noles v. Marable, 50 Ala. 366.

7° Harvey v. Terre Haute & I. R. Co., 74 Mo. 538.

?° McKeen v. Converse (N. H.), 39 Atl. Rep. 435.

*»° Littlefield v. Biddeford, 29 Me. 310.

424 BAILMENT.

was frightened by a steam tramcar of the defendants travel-
ling at an improper rate of speed and was injured and the
plaintiff brought an action to recover for diminution in value,
it was held that he, being under no liability to his bailor
for the injury, could not recover.*?

100. Duties and Liabilities of the Bailee—The bailee of an
animal must return it in as good a plight as when received
with allowance for the ordinary results of use, and where it
is returned in bad condition or is not returned at all the
burden is on him of showing that he exercised due care.*?

The law implies that the hirer is bound to provide the
animal with food, unless there is an agreement to the con-
trary.2 And where the hirer of a horse by improperly feed-
ing and watering it made it sick and returned it in that condi-
tion to the owner, it was held that he was liable for the full
value, if the owner by reasonable care employed a veterinary
surgeon who used his best judgment in treating the animal,
though such treatment was improper and contributed to its
death.3* It is the duty of the owner in such cases to use
all reasonable efforts to cure the anima! and for his expense,
as well as for his trouble and attention, he may recover dam-
ages.*> If the hirer himself calls in a physician, he is not
answerable for a mistake which the latter may make in treat-
ment, but if he prescribes for the horse himself and from un-
skilfulness gives it a medicine which causes its death, though
acting in good faith he is liable to the owner as for gross
negligence.®®

After a hired horse has become sick or exhausted, the hirer

" Claridge v. South Staffordshire Tramway Co., [1892] 1 Q. B. 422.

* Morris v. Armit, 4 Ma. 152; Mackenzie v. Cox, 9 C. & P. 632; Arnot
v. Branconier, 14 Mo. App. 431; Baren v. Cain, 15 Ill. App. 387; Bennett
v. O’Brien, 37 Ill. 250; Purnell v. Miner (Neb.), 68 N. W. Rep. 942.

* Handford v. Palmer, 5 Moore 74.

* Eastman v. Sanborn, 3 Allen (Mass.) 594.

** Graves v. Moses, 13 Minn. 335. * Dean v. Keate, 3 Camp. 4.

DUTIES AND LIABILITIES OF THE BAILEE. 425

is bound not to use it or he may become liable for its value.37
Thus, it was held that the owner of a mare who lets her to a
street-car company engages that she is fit for the service,
but that, if she turns out not to be, it is the duty of the
company to abstain from further use without obtaining the
owner’s consent.28 On the other hand, it has been held that
one is not, as matter of law, guilty of negligence in driving
a hired horse after it has become sick or exhausted.*®

Reasonable care must be exercised in driving or riding a
horse: the bailee is responsible for overtasking its capacity; *°
and, unless he is manifestly incapable of exercising such care,
it is immaterial whether or not the bailor expected he would
be careless or unskilful.44 If through carelessness the hirer
allows the horses to run away, he is liable for the result.*?
But it is not necessarily an act of negligence to hitch a hired
horse to a tree by a road for an hour or two, though the
horse, in consequence of restlessness caused thereby, broke
from the control of the driver and ran away.**

Where the drover for hire of cattle, some of which had
been frightened away by a train, continued to the end of his
journey before returning to seek the missing cattle, in an
action against him it was held that evidence was admissible
of what would have been the expense of feeding the rest of
the drove during the probable delay caused by such a return
and of the usual practice of drovers under like circumstances,
but not of drovers for hire alone as distinguished from those
that drove their own cattle; but that evidence of the price
received for driving the missing cattle was not admissible as

7 Bray v. Mayne, Gow 1; Thompson v. Harlow, 31 Ga. 348; Marshall
v. Bingle, 36 Mo. App. 122.

*® Bass v. Cantor, 123 Ind. 444.

® Spencer v. Shelburne, 11 Tex. Civ. App. 521.

“ Wentworth v. McDuffie, 48 N. H. 402; Wilcox v. Hogan, 5 Ind. 546.

“ Mooers v. Larry, 15 Gray (Mass.) 451.

“” West v. Blackshear, 20 Fla. 457; Casey v. Suter, 36 Md. 1.

“ Bradbury v. Lawrence, 91 Me. 457.

426 BAILMENT.

affecting the measure of care he was bound to exercise for
their recovery.**

Where, without fault or negligence on the part of the
borrower of a horse he was met by some cavalry officers of
the United States who took the horse forcibly from him,
he was held not liable. “The borrower is not liable if
the goods be taken from him by robbery or irresistible force,
or stolen out of his possession, he having exercised such extra-
ordinary care. If, however, by his own rashness, he expose
the property to such peril, he will be liable.” *#° And, there-
fore, where one who hires a horse and buggy to go to a
certain town and return agrees to put them in a livery-stable
while at such town but fails to do so, he is liable to the owner
for their value, if they are stolen.*®

When animals are hired for certain uses and put to different
uses also and when returned are found injured, the reasonable
inference is that the injury occurred while they were being
improperly used.*7 And where a party hires a team and a
driver to be used at a certain place or for a certain purpose
and uses them otherwise, he is responsible for an injury with-
out any negligence on the driver’s part: the driver is not the
agent of the owner in respect to obeying such directions of
the bailee as are not contemplated in the contract.*® So, one
hiring a horse for a definite time and using it after the time
has expired, is liable for any injury that may happen to it.*®
A disregard of instructions as to the manner of using a horse
will render a bailee for hire liable when the loss is occasioned
thereby—a gratuitous bailee, perhaps, absolutely.®° The
subject of driving or riding horses beyond the agreed point
is treated of in § 102, infra.

“ Maynard v. Buck, 100 Mass. 40.

* Watkins v. Roberts, 28 Ind. 167. “Line v. Mills, 12 Ind. App. 100.

“ Buchanan v. Smith, 10 Hun (N. Y.) 474.

“ De Voin v. Mich. Lumber Co., 64 Wis. 616. And see Fox v. Young,
22 Mo. App. 386.

“ Stewart v. Davis, 31 Ark, 518. = Cullen v. Lord, 39 Ia. 302.

DUTIES AND LIABILITIES OF THE BAILEE. 427

The bailee of sheep should, in the absence of an express
contract as to the manner of keeping, keep them separate
from his ram during the period when he should restrain the
latter from running at large.*

The bailee is not liable for an accidental injury or illness
happening to the animal not due in any way to negligence ;°?
except where he has failed to return it when the contract of
hiring expired.5* Thus, where one borrowed a horse which,
when being driven, stumbled and was injured, the borrower
is not liable if he can prove he has exercised reasonable care.**
Some evidence of negligence must be given: the naked fact
that the animal has become sick on a journey, or has been re-
turned with its knees broken, has been held not sufficient to
raise the presumption of negligence.5®> But the modern rule
appears to be that proof of the non-return of the animal or of
its return in an injured condition is prima facie evidence of
negligence: the burden of accounting for these facts is on the
bailee.®® If the horse is not fit for the journey for which it
was hired and becomes lame, it has been held that the hirer
may leave it at an inn and give notice to the owner who is
bound to send for it, and cannot recover for the price agreed
on for the journey nor for the loss of the animal’s services
after notice.57

Where an ice company hired horses for scraping snow from
ice, it was held not to be bound to have at that place ropes
and appliances for hauling the horses out of the water in case

° Phelps v. Paris, 39 Vt. 511.

" Fortune v. Harris, 6 Jones L. (N. C.) 532; Millon v. Salisbury, 13
Johns. (N. Y.) 211; Hovey v. Bromley, 85 Hun (N. Y.) 540; Buis v.
Cook, 60 Mo. 391; Leach v. French, 69 Me. 389; Henderson v. Barnes,
32 U. C. Q. B. 176.

® Cochran v. Walker (Tex. Civ. App.), 49 S. W. Rep. 403.

Bain v Strang, 16 Rettie (Sc. Ct. Sess.) 186.

® Leach wv. French, supra; Carrier v. Dorrance, 19 S. C. 30; Cooper v.
Barton, 3 Camp. 5, note.

* See Schouler Bailm. (3d ed.) § 23; 3 Amer. & Eng. Encyc. of Law
(2d. ed.) 750. See, also, § 104, infra.

™ Chew wv. Jones, 10 L. T. 231.

428 BAILMENT.

they broke through, and not to be liable for not notifying
the driver of a thin place, where the horses were uncon-
trollable and such a precaution could not have saved them.°*

Where an animal is hired or borrowed so as to give the
hirer or borrower complete control over it, he and not the
owner is responsible for damage arising from its vicious
habits,®® or trespasses,®° or from his own negligence.®?

Where one of several joint hirers drives and causes an in-
jury to the carriage and horses, the agreement having been
that the driver alone should drive, all of the hirers are liable.®?
So, where a horse is hired by A. and delivered on his credit
by the owner to B. who drives it to death with the co-
operation of A., who is driving another horse in company
with him—they may be held jointly liable.6* And where the
defendants hired a team of horses and one of the defendants
shot one, alleging it was diseased and acting merely on his
own opinion which was shown by the evidence to have been
erroneous, it was held that the defendants were jointly liable
for the horse’s death.**

101. Negligence of Servants When the servant of a bailee
for hire of a mare takes and uses it in the business in which
he is employed by the bailee, the master is liable for a loss
arising from carelessness, though no express assent is
shown. So, one who hires a horse and carriage is liable

*® Stacy v. Knickerbocker Ice Co., 84 Wis. 614.

* Bell v. Leslie, 24 Mo. App. 661, citing Shearm. & Red. on Negl. § 195.
Otherwise, where the resulting injury is to the animal itself. The plain-
tiff must then show that it is not vicious: Hale v. Smith, 78 N. Y. 480.
And see, on this subject, § 96, supra. See, also, Béliveau v. Martineau,
Montr. L. Rep. 2 Q. B. 133.

© See § 76, supra. “ Bard v. Yohn, 26 Pa. St. 482.

Where he is injured as the result of the slipping of a saddle which he

knew was improperly adjusted, he cannot recover: Wilson v. Dickel,
7 N. Y. App. Div. 175.

“ O’Brien v. Bound, 2 Spears (S. C.) 405.
“ Banfield v. Whipple, 10 Allen (Mass.) 27.
* Morris v. Armit, 4 Ma. 152. “ Sinclair v. Pearson, 7 N. H. 21g.

NEGLIGENCE OF SERVANTS. 429

for an injury caused by the negligence of his coachman who,
instead of obeying his orders to take them to the stable, drove
them for his own purpose in a different direction.°* But he is
not liable for the negligence of an innkeeper or hostler to
whom his driver without negligence had entrusted the
horses.®* If the manager of sheep has the direct charge and
control of them as a bailee and employs the herders to assist
him and they are subject to his directions, he is responsible
for their acts, done within the scope of his employment,
though done without his knowledge or authority and con-
trary to his order.®§

Where the owner of a carriage hired of a stable keeper a
pair of horses to draw it for a day and the owner of the
horses provided a driver through whose negligent driving an
injury was done to a third person, the owner of the carriage
was held not liable.** And where the horses are injured
under such circumstances, the hirer is not liable; 7° unless he
has interfered with the driving, in which case the owner may
maintain trespass vi et armis against him."

The hirer of mules who substitutes a driver instead of the
owner’s is guilty of conversion and liable for damages whether
negligent or not and whether he directed the substitution or
simply permitted it.7?

Where a company was in the business of furnishing boys
to drive teams for customers and, on request, sent one to the
plaintiff and through the boy’s negligence the team ran away

® Coupé Co. v. Maddick, [1891] 2 Q. B. 413.

See an article in 17 L. Mag. & Rev. 97 by Thomas Beven, Esq., disap-
proving of this decision on the ground that the master should not be
held liable for the wilful act of his servant in such a case.

* Ruggles v. Fay, 31 Mich. 141. ® Bileu v. Paisley, 18 Oreg. 47.

*TLaugher v. Pointer, 5 B. & C. 547. And see to the same effect
Sammell v. Wright, 5 Esp. 263; Smith v. Lawrence, 2 M. & R. 1; Quar-
man v. Barnett, 6 M. & W. 499.

See Hughes v. Boyer, infra, where the point was left undecided.

*® Hughes v. Boyer, 9 Watts (Pa.) 556.

™ Dean v. Branthwaite, 5 Esp. 35.

” Kellar v. Garth, 45 Mo. App. 332.

430 BAILMENT.

and one of the horses was injured and had to be shot, the com-
pany was held liable.”

Where a horse received an injury while being shod by a
farrier, the accident being caused by his groom striking him
with a whip, the farrier was held relieved from liability though
no damage would have resulted had it not been for the unsafe
condition of the floor of the smithy."

102. Driving or riding beyond the agreed point; Sunday
driving—The cases generally hold that one going beyond
the agreed distance with a hired horse is guilty of conversion
and liable without regard to negligence, if injury or death has
resulted therefrom to the horse.** If the owner, however,
receives payment for the whole distance travelled he thereby
ratifies the hirer’s act so that trover will not lie, and if the
horse has been injured by ill usage, the owner’s remedy is
by action on the case for misfeasance.”®

An infant also is liable in trover in such a case.” Thus,
where A., an infant, hired a horse from B. and agreed not to
drive it beyond G. but returned it sick and took another horse
with the intention of driving it beyond G. without, however,
disclosing such intention to B. who understood he was not
to drive it beyond G., and the horse was over-driven and died
in consequence, A was held liable in tort.78 But an action
of contract for riding cannot be changed into tort in order
to make the defendant, an infant, liable.7®

Where one hires a horse to drive to a particular place and

® Amer. Dist. Tel. Co. v. Walker, 72 Md. 454.

™ Allan v. Mullin, 4 Leg. News (Can.) 387.

*® Wheelock v. Wheelwright, 5 Mass. 104; Lucas v. Trumbull, 15 Gray
(Mass.) 306; Martin v. Cuthbertson, 64 N. C. 328; Farkas v. Powell, 86
Ga. 800; Welch v. Mohr, 93 Cal. 371; Kennedy v. Ashcraft, 4 Bush (Ky.)
530; Fisher v. Kyle, 27 Mich. 454; Murphy v. Kaufman, 20 La. Ann. 559;
Evertson v. Frier (Tex. Civ. App.), 45 S. W. Rep. 201.

® Rotch v Hawes, 12 Pick. (Mass.) 136.

™ Homer v. Thwing, 3 Pick. (Mass.) 492. ™® Ray v. Tubbs, 50 Vt. 688.
7 -
Jennings v. Rundall, 8 Term 335.

DRIVING BEYOND THE AGREED POINT. 431

on his return unintentionally takes a wrong road and, after
driving a few miles thereon and discovering his mistake, takes
what he thinks to be the best way back to the place of hiring,
he is not liable in trover for the conversion of the horse.®°
~And the contract to go to a certain place does not confine the
hirer to a particular road nor prevent his deviating from
the road chosen, if done prudently to rest or refresh the horse
ot for any other purpose not detrimental to the animal.*!
Nor does mere delay amount to a conversion, where the
horse was hired to drive to and from a place without
stopping.*?

A well-considered modern case departs somewhat from
the older rule stated above and holds that a mere diversion
from the line of travel or going beyond the point for which
a team was hired will not, without more, amount to a conver-
sion of the property for which an action will lie. The court
says of the old rule: “It must be borne in mind that in almost
every case where that strict rule has been applied, the facts
have shown that the hirer, in addition to departing from the
contract line of travel, was guilty of negligence or wilful mis-
conduct or that he injured or destroyed the property while
outside of the limits of the contract of hiring. . . . To consti-
tute a conversion in a case like that at bar, there must be some
exercise of dominion over the thing hired in repudiation of,
or inconsistent with, the owner's rights. We hold that the
mere act of deviating from the line of travel which the hiring
covered, or going on beyond the point for which the horse
was hired, are acts which in and of themselves do not neces-
sarily imply an assertion of title or right of dominion over the
property, inconsistent with, or in defiance of, the bailor’s in-
terest therein.” 8

® Spooner v. Manchester, 133 Mass. 270.

* Early v. Wilson, 2 Harr. (Del.) 47. ® Evans v. Mason, 64 N. H. 08.

® Doolittle v. Shaw, 92 Ia. 348, 26 L. R. A. 366 and note. The note
says, “While Doolittle v. Shaw is a departure from the weight of authority
upon this question, it certainly has much more of equity and the spirit

432 BAILMENT.

Where the contract has been made on Sunday and is, there-
fore, generally void,** this does not preclude an action of tort
being brought for an injury resulting from driving beyond
the agreed distance or from negligence or wilfulness of any
other kind.8® There are some decisions to the contrary,**
but the above rule is undoubtedly better law.

103. Action; Damages.—It has been already said that the
bailee may bring an action for an injury to the animal.*’ If
the owner seeks to recover for the killing of his animal by a
third person while in the hands ofa bailee for hire, his remedy
is case, not trespass.88 And the bailee’s negligence was held
no defence where the action was brought by the owner for a
colt’s death from falling into a ditch negligently constructed
by the defendant through a corner of the bailee’s enclosure.*°
Where A. had hired out his horse to B. for a month and B.
kept it for two months and then sold it toC., it was held that A.
might recover the value from C., though the latter had acted
bona fide and had paid B. the full value.°°

Where A. let B. his team to be used for joint account on
the lands of A., and B. left it unfastened while he got over

of modern decisions in it than have the older decisions which regard the
slightest intentional deviation from the terms of the contract as a conver-
sion which charges the hirer with the value of the horse at that time and
only permits him to avoid paying the owner for it by its return to the
latter while equally valuable.”

* See Berrill v. Smith, 2 Miles (Pa.) 402; Chenette v. Teehan, 63 N. H.
149.

® Stewart v. Davis, 31 Ark. 518; Frost v. Plumb, 40 Conn. 111; Hall
v. Corcoran, 107 Mass. 251; Morton v. Gloster, 46 Me. 520; Woodman vw.
Hubbard, 5 Fost. (N. H.) 67; Doolittle v. Shaw, supra.

* See Gregg v. Wyman, 4 Cush. (Mass.) 322; Way v. Foster, 1 Allen
(Mass.) 408 [overruled in Hall v. Corcoran, supra]; Whelden v. Chappel,
8 R. I. 230.

7 See § go, supra.

The bailee cannot bring trespass against the bailor for feeding and
caring for the stock: Sheaffer v. Sensenig, 182. Pa. St. 634.

* Hall v. Pickard, 3 Camp. N. P. 187.

” Kellar v, Shippee, 45 Ill. App. 377. ™ Shelley v. Ford, 5 C. & P. 313.

ACTION ; DAMAGES. 433.

the fence into the highway and fought with C., which caused
the horses to run away, one of them being killed in conse-
‘quence,—it was held that, as against strangers, B. was A.’s
agent in the care of the team and that his want of ordinary
care being the proximate cause of the loss, A. could not
recover against C.*!

Where the bailee has agreed to pay the price of the animal
if it is not in good condition when he returns it, the accept-
ance of the animal is no waiver of the bailor’s right of action.®”
And where the bailor presents an account for hire in which
‘there is no claim for damages for the loss of the horse, and
takes a receipt “in full of all demands,” this receipt does not
‘bar a recovery for the loss: it may be explained by evidence
aliunde.*? In an action against the bailee to recover the value
‘of an animal killed, the bailee cannot, under a general denial,
show that it had been killed without his fault.°+

The measure of damages where the animal is returned and
accepted is the difference between its value at the time of
‘conversion and at that of return.°® Where the horse was sent
to the farrier’s for six weeks to be cured and it was then
ascertained that it had been permanently damaged to the
extent of twenty pounds, it was held that the proper measure
of damages was the keep of the horse at the farrier’s, the
amount of his bill, and the difference between the value of
the horse at the time of the accident and at the end of the
six weeks, but that the plaintiff ought not to be allowed
also for the hire of another horse during the six weeks.®®

™ Puterbaugh v. Reasor, 9 O. St. 484. ™ Austin v. Miller, 74 N.C. 274.

® Bigbee v. Coombs, 64 Mo. 529.

* Cochran v. Walker (Tex. Civ. App.), 49 S. W. Rep. 403.

As to the burden of proof in an action by the owner against the bailee,
see §§ 100, supra, 104, infra.

* Gove v. Watson, 61 N. H. 136.

* Hughes iv. Quentin,’8 C. & 'P. 703.

As-to a sheriffs right to be compensated for the keep of cattle seized
under a-fi. fa. where a claim to some of them has been admitted, see Brady
v. Williams, [1898] 2 I. R. 703.

28

434 BAILMENT.

Nor is the fact that a party had other horses to use in place
of the damaged one an element in the estimate of damages.°”

Where the bailee agreed to pay one dollar a day for the
‘use of oxen and to feed and care for them till they were re-
turned, it was held that the bailor’s pecuniary compensation
‘was limited to the number of days they were actually used,
though they were kept for a longer time.®®

104. Agistment.—Agistors of cattle, as Judge Story says in
his work on Bailments, “do not insure the safety of the
cattle agisted, but they are merely responsible for ordinary
negligence. It will, however, be such negligence for an
agistor or his servants to leave open the gates of his field;
and if, in consequence of such neglect, the cattle stray away
and are stolen, he will be responsible for the loss. They have
also, in virtue of their custody, such a possession and title
that they may maintain trespass or trover against a wrong-
-doer for any injury to their possession, or any conversion of
the property. By the Roman law the agistor was made
responsible, not only for reasonable diligence but for reason-
able skill in his business, and ignorance of his proper duty
is treated as negligence. . . . The same rule prevails in the
modern foreign law.” °°

That agistors, as such, do not insure the safety of the
animals entrusted to them and are responsible only for ordi-
nary negligence is a well-settled principle.

Where the bailor has shown that the animals were not re-
delivered or were re-delivered in an injured condition, the

* Fulliam v. Hagens, 83 Ia. 763.

* Learned-Letcher Lumber Co. v. Fowler, tog Ala. 169.

” Story Bailm. § 443.

® Broadwater v. Blot, Holt 547; Brush v. Clarendon Land, I. & A.
‘Co., 2 Tex. Civ. App. 188; Callahd v. Nichols, 30 Neb. 532; Waldo v.
Beckwith, 1.N. M. 97; Wood v. Remick, 143 Mass. 453; Union Stock
Yard & T. Co. v. Mallory, etc., Co., 157 Ill. 554; Mansfield v. Cole, 61
id. 191; Umlauf v. Bassett, 38 id. 96; Ransom v. Getty, 37 Kan. 75; Robin
wv. Briére, Montr. L. Rep. 7 Q. B. 361.

AGISTMENT. 435

burden of accounting for the loss or injury is on the agistor.
There is some conflict in the decisions, but this appears to be
the better rule.t°?

The agistor is not liable for a loss resulting from severe
weather, where there has been no negligence on his part; 1°?
nor is he liable where the animals were in a bad condition to
endure cold weather when he received them;!®* nor where
an animal unaccountably disappeared though the fence was
a sufficient one.1%*

The rule, as was said, is otherwise where there is negli-
gence. The agistor is liable if his fence is not a good one:
in such a case, he should immediately repair it.1°° Thus, he
is responsible if sheep escape into another field and become
infected by other sheep.t°® But in New York it has been
held that the agistor is not liable for cattle contracting
Texas fever from being pastured in fields previously occupied
by Texas cattle when he did not know there was such danger,
—the liability of native cattle to contract disease under such
circumstances not being sufficiently well known in that State
to charge the defendant constructively.1°% When cattle
escape from an agistor’s field, it is his duty to find and reclaim
them and, if he is guilty of negligence in not using proper
care over them, in legal effect he suffers them to run at
large.108

Where the agistor knowingly keeps a vicious animal on

™ See Schouler Bailm. (3d ed.) § 23; 3 Amer. & Eng. Encyc. of Law
(2d ed.) 750; Ware Cattle Co. v. Anderson (la.), 77 N. W. Rep. 1026;
Goodfellow v. Meegan, 32 Mo. 280; Cummings v. Mastin, 43 Mo. App.
558; Rayl vw. Kreilich, 74 id. 246; Wood v. Remick, supra; Sutherland
v. Hutton, 23 Rettie (Sc. Ct. Sess.) 718; Bélanger v. Quiner, 9 Rev. Leg.
(Can.) 530.

Brush v. Clarendon Land, I. & A. Co., 2 Tex. Civ. App. 188.

8 O’Keefe v. Talbot, 84 Ia. 233. 14 Race v. Hansen, 12 Ill. App. 605.

Cecil v. Preuch, 4 Mart. N. S. (La.) 256; Lucia v. Meech (Vt.), 34
Atl. Rep. 695.

6 Sargent v. Slack, 47 Vt. 674.

1 Gibbs v. Coykendall, 39 Hun (N. Y.) 140. See §§ 88, 80, supra.

8 Schlachter v. Wachter, 78 Ill. App. 67.

436 BAILMENT.

his place, he is liable for an injury happening therefrom to the
agisted animal.1°® But he is not exempt from liability merely
on the ground that he did not know the animal to be fero-
cious. All the circumstances may, nevertheless, show a want
of reasonable care and the rule as to scienter does not apply
to such cases of contract.1!?

Where the agisted horse was killed by falling into a hole
in a field situated over old mineral workings, which hole had
been noticed some time before by neighbors, it was held that
the agistor was liable as he had failed to take that reasonable
care of the property which a reasonable man would have
taken of his own.14! On the other hand, where a horse was
drowned in a pond or quagmire existing to the owner’s
knowledge on the pasture ground, the agistor was held not
liable because he had not fenced it off, such places not being
usually fenced.1??

Where the plaintiff agreed not to overstock the pasture,
it was held that such agreement was not affected by the
defendant’s having inspected the pasture before the cattle
were turned in, so that he might have known it would be
overstocked.143 Where the kind of pasturage is expressly
defined in the contract, an instruction that the agistor is re-
quired to furnish only the average quantity and quality for
the locality and the season is properly refused.1!4

The agistor is bound to employ careful and trustworthy
servants and is liable for injuries done by them through negli-
gence, though not if they are malicious or wilful.1® He
must notify his customers as to any unusual risk to which

* Schroeder v. Faires, 49 Mo. App. 470.

“Smith v. Cook, 1 Q. B. D. 79, approving of Dolph v. Ferris, 7 W. &
S. (Pa.) 367. And see the review of this case in 10 Ir. L. T. 117.

™ McLean v. Warnock, 10 Rettie (Sc. Ct. Sess.) 1052. And see Pearce
v. Sheppard, 24 Ont. 167.

™ McKeage v. Pope, Rap. Jud. Quebec, 10 C. S. 450.

™ McAuley v. Harris, 71 Tex. 631.

™ Ware Cattle Co. v. Anderson (Ia.), 77 N. W. Rep. 1026.

™® Halty v. Markel, 44 Ill. 225.

AGISTMENT. 437

their cattle are exposed on his land.14® He is bound to know
about the health of the animals he takes and if he knows of
their having a contagious disease and neglects to inform
-a customer of the fact, whose horse takes the disease and
dies, he is liable for its value, though the contract of pasturage
is void because entered into on Sunday.1!7 On the other
hand, where the agistor was to receive as compensation part
of the wool and increase of sheep and the fact was fraud-
ulently concealed from him that some of them were diseased,
it was held that he was entitled as damages to the cost in time
and expense of caring for them, including that required by
the disease, less any profits realized under the contract.148
Under a contract to pasture for a term not longer than
eight months, the owner reserving the right to remove the
animals whenever he was liable to loss from lack of food or
water, paying for the expired time, it was held that the agistor
did not bind himself to pasture for the full eight months but
might recover for the time actually used.11®
If the agistor sells the agisted animals without authority or
reason to suppose he had authority, he is guilty of larceny
as bailee.t2° Where by the contract he has authority to
sell them to pay the expenses of keeping, he has the right
to sell as many as will pay the debt: to sell more is a conver-
sion.121_ It has been held that the proprietors of a stock-
yard, whose business it is to furnish temporary accommoda-
tion for animals, are authorized to sell such stock, when the
owner cannot be found, for his account.!2* The agistor has
no authority to pledge the animals, and a farmer who received

™6 McLain v. Lloyd, § Phila. (Pa.) 195.

*T Costello v. Ten Eyck, 86 Mich. 348.

"8 Parker v. Marquis, 64 Mo. 38. ™ Meuly v. Corkill, 75 Tex. 599.

” Reg. v. Leppard, 4 F. & F. 51.

He is not guilty of larceny at common law. See § 51, supra.

*! Whitlock v. Heard, 13 Ala. 776.

™ Millcreek Tp. v. Brighton Stock Yards Co., 27 O. St. 435. See, as to
their responsibilities, Union Stock Yard & T. Co. v. Mallory, etc., Co.,
157 Ill. 554.

438 BAILMENT.

sheep from an agistor was held liable in trover to the owner,
on his claiming to detain them for a debt due the agistor,
and was not allowed to deduct from the amount of the credit
the sum for feed which had been tendered by the owner and
refused.12 That an agistor has used feed belonging to an
estate of which he is administrator without accounting for it
is no defence in an action brought by him as an individual
against the owner of cattle for their keeping.’*

Under a contract for the pasturage of cattle, on breach of
provisions to furnish them with water and protect them by
fences, the owner may recover for all damage to the cattle
thereby and is not limited to the recovery of the amount
expended by him in trying to protect himself from damage
after the breach.17®

Where the agistor had falsely represented that there would
be a sufficient supply of water during the whole winter for
cattle pastured in his lands which were at no time under his
control or subject to his direction, the measure of damages
was held not to be the market value of the cattle lost and
the difference between the value of the herd as wintered and
their value if the supply of water had been ample, but the
increased cost and inconvenience in driving them to water
or moving them to proper quarters,—the agistor not being
an insurer of the lives or health of the herd.1*® And the
proper damages in an action for violating a contract for the
use of a well were held to be the cost of hiring a man to
drive the stock twelve miles over a rough and dry country
and the resulting damages to the stock: the value of the horses
that killed themselves seeking for water while so driven was
held too remote.127 Where a water company failed to comply
with their contract to furnish cattle with water and the owner
was obliged, in consequence thereof, to construct a fence-way

”° Prentice v. Taylor, 1 F. & F. 460. ™ Bates v. Sabin, 64 Vt. 511.
™ Hardin v. Newell (Tex. Civ. App.), 40 S. W. Rep. 331.

* Godding v. Colo. Springs Live Stock Co., 4 Colo. App. 14.

“' Westfall v. Perry (Tex. Civ. App.), 23 S. W. Rep. 740.

AGISTMENT. 439

to the river, it was held that he was entitled to the expense
so incurred, if he used reasonable care, and that he was not
bound to inquire whether another company could supply the-
water, unless he knew such facts as would have put a prudent
man on inquiry.128 Where the owner of cattle, in conse-
quence of the defendant’s breach of contract to furnish dis-
tillery slop to fatten them, was compelled to sell them at a.
sacrifice, he may recover the reasonable profits he would
have made if the contract had been carried out.1*°

An action against an agistor to recover damages is an
action founded on tort.1%°

While the defendant was in possession of land as care-taker
or tenant at will, the owner put his cattle thereon to be fed
and cared for by the defendant. It was held that the produce
of the land which the cattle ate was “profits” which the
owner, by means of his cattle, took to himself for his own
use and benefit and, as long as the cattle were upon the land,
the defendant was not in exclusive possession and the Statute
of Limitations did not begin to run in his favor.1?!

105. Lien of Agistors and Trainers —The common-law prin-
ciple governing liens was thus laid down by Parke, B., in
Jackson v. Cummins: 18? “The general rule . . . is that by
the general law, in the absence of any special agreement,
whenever a party has expended labor and skill in the im-
provement of a chattel bailed to him, he has a lien upon it.
Now the case of agistment does not fall within that principle,
inasmuch as the agistor does not confer any additional value
on the article, either by the exertion of any skill of his own,
or indirectly by means of any instrument in his possession;.
. . . he simply takes in the animal to feed it.”

%®Waco Artesian Water Co. v. Cauble (Tex. Civ. App.), 47 S. W..
Rep. 538.

*° New Market Co. v. Embry (Ky.), 48 S. W. Rep. 980.

*° Turner v. Stallibras, [1898] 1 Q. B. 56.

* Rennie v. Frame, 29 Ont. 586. wee M. & W. 342.

440 BAILMENT.

No agistor’s lien, therefore, exists at the common law,'*8
unless there is a special agreement.'** Such a lien is, how-
ever, commonly given by statute,°? and a claim therefor
has been held to be assignable.'*® The lien is confined to the
kind of animals mentioned in the statute.1?7 Where the law
provided that the agistor should have a lien until the charges
under the agreement are paid, the buyer of a mare with foal,
who agreed that the seller should have the colt when four
months old, was held to have no lien on the colt for the
amount the seller agreed to pay for the use of the mare,
there being no agreement by which the latter was to pay
anything for the care or keep of the colt.1°5 But where one
takes a number of animals to pasture on an entire contract
for an agreed sum, he has a lien on each for the amount due
on all, and one cannot be taken away without paying for all,
though enough remain to secure the debt.1%°

The lien can arise only in favor of one who has actually
“kept” the animal, not of one who has merely paid or
contracted to pay some other for the keeping.14° The owner
of a farm residing on it has no lien for pasturage on the stock
of his tenant who works his farm and has the custody of
the stock: such owner is not a herder, feeder and keeper of
stock for hire within the meaning of the statute.144 Where

™ Ibid; Chapman v. Allen, Cro. Car. 271; Bissell v. Pearce, 28 N. Y.
252; Goodrich v. Willard, 7 Gray (Mass.) 183; Wills v. Barrister, 36 Vt.
220; Lewis v. Tyler, 23 Cal. 364; Mauney v. Ingram, 78 N. C. 96.

Otherwise, by the law of Scotland: 2 Bell Com. 11o.

™ See Chapman v. Allen, supra; McCoy v. Hock, 37 Ia. 436.

See Smith v. Marden, 60 N. H. 509; Bunnell v. Davison, 85 Ind.
557; Kroll v. Ernst, 34 Neb. 482; Gates v. Parrott, 31 id. 581; Lambert
uv. Nicklass (W. Va.), 31 S. E. Rep. 951, and other cases cited in the: pres-
ent section.

First Nat. Bk. v. Barse Commn. Co., 61 Mo. App. 143.

Fein v. Wyo. Loan & Trust Co., 3 Wyo. 332.

* Cook v. Shattuck, 21 N. Y. Suppt. 29.

* Yearsley v.Gray, 140 Pa. St. 238. ™ Cox v. McGuire, 25 Ill. App. 315.

Wright v. Waddell, 89 Ia. 350.

As to a partner, see Auld v. Travis, 5 Colo. App. 535.

LIEN OF AGISTORS AND TRAINERS. 441

one with the knowledge of another’s title as bailee undertook
to take care of the horse, he was held to have no lien for
the care and keeping, if the bailee had no authority to con-
tract thereior.’*

An agistor’s lien was not allowed in favor of a servant who
drives his master’s cattle to pasture in the morning and back
in the evening.1** So, a statute giving a lien to a “herder”
of cattle and others “entrusted” with the care of sheep does
not give it to one merely hired to take care of sheep, the
possession and control of which remain in the owner.'*4 And
where stock is not entrusted to a ranchman to be fed, but
remains in the owner’s custody, and the ranchman simply
sells the food and has no other custody than that which
arises from permission to use his yards for feeding purposes,
he has no lien.*4%

Where a mortgagee gave the mortgage to A. to foreclose
and A. put the horse in his own stable and the mortgagee
was paid by the surety, it was held that A. had no lien for
the keeping: he was only the agent to foreclose, and not
“procured, contracted with to feed and take care of the
horse.” 146 But where the plaintiff by direction of the sheriff
under an order from the mortgagee pastured the cattle, he
-was held to have a lien under the statute.'*7

In Louisiana it was held that a factor or merchant has no

™ Sherwood v. Neal, 41 Mo. App. 416.

“8 Bailey v. Davis, 19 Oreg. 217. And see Underwood v. Birdsell, 6
Mont. 142.

™ Hooker v: McAllister (Wash.), 40 Pac. Rep. 617, where it was also
held that an allegation that the defendant owned a certain number of
‘sheep, giving their number and county, was not a sufficient description
-of the sheep in an action to foreclose a lien for services in taking charge
-of them.

See, also, as to the owner’s control, Feltman v. Chinn (Ky.), 43 S. W.
Rep. 192.

“8 Tabor uv. Salisbury, 3 Colo. App. 335. “* Hale v. Wigton, 20 Neb. 83.

“7 Vose v. Whitney, 7 Mont. 385.

That a mortgagor is not an “owner” with whom the agistor may ‘‘con-
tract,” see Graham v. Winchell, 3 Ohio N. P. 106.

442, BAILMENT.

privilege on mules, cattle and implements attached to a
plantation or on the proceeds of the sale thereof, for advances
made or supplies furnished to make a crop.*8

Where A. sold swine to B. on credit and B. returned them,
claiming to rescind the contract and refusing to receive them
back, and A. recovered in an action for the price and B.
brought trover, it was held that A. by bringing his action
lost his lien as seller but that, by the return of the animals,
he was made bailee by compulsion and had a particular lien
upon them for his expense.1*®

Replevin will lie against one obtaining possession of an
animal with notice of an agistment lien against it.15° A pur-
chaser for value without notice of an agistor’s lien takes sub-
ject thereto, where the agistor has not voluntarily relin-
quished possession.15!

The trainer of a horse, also, has a lien on the animal for his
skill and expenses,’®? though in the case of a race-horse it
has been held that this does not apply where by usage or
contract the owner may send the horse to run at any race he
chooses and may select the jockey.153 The modern decisions,
however, are broader and admit in a more unqualified man-
ner the lien of the trainer of a race-horse.154

“8 Howe v. Whited, 21 La. Ann. 495.“ Leavy v. Kinsella, 39 Conn. 50.

* Storey v. Patton, 61 Mo. App. 12.

*2 Weber v. Whetstone, 53 Neb. 371.

™ Bevan v. Waters, 3 C. & P. 520; Towle v. Raymond, 58 N. H. 64;
Scott v. Mercer, 98 Ia. 258; Farney v. Kerr (Tenn. Ch. App.), 48 S. W.
Rep. 103.

Perhaps this includes a breaker: Grinnell v. Cook, 3 Hill (N. Y.) 485.

As to a farrier’s lien, see Nicolls v. Duncan, 11 U. C. Q. B. 332; Hoover:
v. Epler, 52 Pa. St. 522.

* Forth v. Simpson, 13 Q. B. 680.

And see Jacobs v. Latour, 2 M. & P. 201; Jackson v. Cummins, 5 M. &
W. 342, per Parke, B.; Reilly v. McIllmurray, 29 Ont. 167, where it was
held that even if he has a lien, he loses it by delivering the animal to a
sale stable, giving up complete possession, the animal remaining at the
cost and under the control of the owner.

See Hartman v. Keown, 101 Pa. St. 338; Harris v. Woodruff, 124.
Mass. 205.

LIEN OF AGISTORS AND TRAINERS. 443

A person hired as a groom has not a lien as such, but he
has a lien for feed, keeping and shoeing which should have
been furnished by the owner.1®*

The question of the priority of liens has been already dis-
cussed.°°

There are various ways in which the lien may be waived or
surrendered. It is lost by voluntarily delivering the animals
- to their owner.157 But when the agistor leaves the stock to
to be herded temporarily by another and they are driven off
during his absence by the owner or one having a special
property in them and the agistor at once demands their
return, he does not lose his lien.15* And where, at the ex-
piration of the time for which the agistor had agreed to keep
cattle, he delivered a portion to the owner, retaining the
remainder as security for his claim, it was held that he did
not lose his lien for the keep of those delivered by surrender-
ing them, but was entitled to hold those retained for the
whole amount due.15® The lien is also lost by the agistor’s
denying the owner’s title; 1®° by his attempting to justify in
replevin under the stray law;1*' by his making a sale of the
stock without complying with the statute;1®*? and by his
accepting less than the amount of the claim in full payment,

* Hoover v. Epler, 52 Pa. St. 522. And see Skinner v. Caughey, 64
Minn. 375.

*° See § 38, supra.

*' First Nat. Bk. v. Barse Commn. Co., 61 Mo. App. 143; Seebaum v.
Handy, 46 O. St. 560; Kroll v. Ernst, 34 Neb. 482; Estey v. Cooke, 12
Nev. 276.

*8 Willard v. Whinfield, 2 Kan. App. 53. And see Weber v. Whetstone,
53 Neb. 371.

* Barse Live Stock Commn. Co. v. Adams (Ind. Ty.), 48 S. W. Rep.
1023. He was, accordingly, held entitled to recover from a mortgagee,
who seized the portion retained by replevin, the amount due on the whole
herd and the value of the keep of those retained from the expiration of
the time agreed on to the date of their seizure.

* Williams v. Smith, 153 Pa. St. 462.

*° Workman v. Warder, 28 Mo. App. I.

*? Greenawalt v. Wilson, 52 Kan. 1009.

444 BAILMENT.

though the horse is. not delivered.’% It has been held in
some cases, also, that the agistor’s lien is lost by his causing
the property to be taken in execution at his own suit; *®* but
in other cases this has been denied.1®° One wrongfully re-
taining cattle after the tender of the amount due for pasturage
is not entitled to a lien for subsequent pasturage unless they
are allowed to remain under the contract for a longer term.**

106. Breeding—One who rents the services of a male
animal for breeding purposes must take all ordinary care to
prevent injury. Where the mare served died from rupture,
he is liable for not taking the usual amount of precaution.'®
Evidence that the mare was so confined as to prevent suffi-
cient freedom shows negligence.1®* Where the mare is in-
jured by bad service it has been held, on the one hand, error
to require the plaintiff to show that this was due to the
defendant’s negligence, the inference being that it was.1®
On the other hand, it has been held that the proprietor of the
stallion is not in the first place liable: it must be shown that
the injury had for its cause some fault on his part or that of
his servant.17®° Probably some evidence of negligence ought
to be required in all cases.

After an injury to a mare during service, her owner gave
his note containing the clause: “All accidents—at ownet’s
risk.’ It was held that this did not affect his right of action

*® Rosema v. Porter, 112 Mich. 13.

** Jacobs v. Latour, 2 M. & P. 201; Fein v. Wyo. Loan & Trust Co.,
3 Wyo. 332.

** Lambert v. Nicklass (W. Va.), 31 S. E. Rep. 951; Arendale v. Mor-
gan, 5 Sneed (Tenn.) 703.

* Powers uv. Botts, 58 Mo. App. 1.

The plaintiff by taking no active step waives the tortious act: Same
v. Same, 63 id. 285.

*" Bergeron v. Brassard, 10 Rev. Leg. (Can.) 21; Cavender v. Fair,
40 Kan. 182,

8 Scott v. Hogan, 72 Ia. 614.

*® Peer v. Ryan, 54 Mich. 224.

™ Brouillet v. Coté, Montr. L. Rep. 3 S. C. 164.

BREEDING. 445

and that the accident clause was inadmissible in an action
for negligence.17

There is no implied warranty in a contract for the service
of a stallion that he is free from disease that may be trans-
mitted to the offspring.1”

One who has made a contract for the service of his mare
by a particular stallion with a warranty of a foal and:a pro-
vision that the mare must be returned regularly for service
and that in case of the stallion’s death another may be used,
may, where the stallion dies before securing a foal, recover
his service fee and is not bound to send back the mare for
service by another horse.17* On an issue as to whether a foal
was insured as a part of the contract, it was held that the
advertised terms of service were not admissible in favor of
the owner of the stallion.17* A contract to breed another’s
mare at one’s own expense and to keep her till the colt is
foaled and weaned when the mare is to be returned and the
colt to remain with the bailee as his property, is not void
as to the bailor’s creditors as the sale of a thing not in exist-
ence, but is an agreement for the use of the mare for a
particular purpose with a right to her produce in the mean-
time.?7°

The owner of a stallion has a lien on the mare served for his
fees.176 In New York this lien exists from the time of service
and one who purchases the mare after service and before the
filing of the notice of the lien, but before the time for filing
the notice has expired, takes subject to the lien.177 Where
one who purchases a mare after serivce has actual notice
thereof, he has notice of the lien sufficient to bind the colt

™ Scott v. Hogan, supra. 2 Briggs v. Hunton, 87 Me. 145.
Tatro v. Bailey, 67 Vt. 73.

™ White v. Williams (Ky.), 49 S. W. Rep. 808.

"6 Maize v. Bowman, 93 Ky. 205.

See, as to the sale of the increase of animals, § 17, supra.

” Scarfe v. Morgan, 4 M. & W. 270.

1 Tuttle v. Dennis, 58 Hun (N. Y.) 35.

446 BAILMENT.

in his possession.17* Where the statute requires the owner
of a stallion to file a certificate with the register of deeds, no
action can be brought by him for its service unless he has
complied.179 But he need not allege in his petition that he
has procured the statutory license.1®°

Where, by statute, animals imported for breeding purposes
are admitted free of duty, it is a sufficient compliance there-
with if the importer in good faith intends them for such pur-
poses, and this does not prevent his afterwards disposing of
them otherwise if he finds it necessary or desirable to do so.18!
But the fact that they are fit for breeding purposes will not
exempt them, if they are in fact imported for sale.1®?

Where, under an Inclosure Act, lands have been allotted “in
satisfaction and discharge of” the great tithes, the burden of
keeping up a custom that the parson as owner of the great
tithes shall provide and keep a bull and a boar for the common
use of the parishioners is not, in the absence of express words
in the act to that effect, shifted to the allottees of those
lands.188

107. Livery-Stable Keepers—The owners of livery-stables
are bound to use ordinary care, though they are not insurers
of animals left with them: negligence on their part or on the
part of their servants must be shown.'8* Where the horse

“8 Harby v. Wells (S. C.), 29 S. E. Rep. 563.

™ Nelson v. Beck, 89 Me. 264. And see Briggs v. Hunton, 87 id. 145;
Wyman v. Wentworth (Me.), 10 Atl. Rep. 454; Smith v. Robertson (Ky.),
50 S. W. Rep. &52.

*° Crumbaugh v. Williams (Ky.), 41 S. W. Rep. 268.

™ U.S. v. 196 Mares, 29 Fed. Rep. 130.

™ U.S. v. 11 Horses, 30 Fed. Rep. 916.

** Lanchbury v. Bode, [1808] 2 Ch. 120.

** Dennis v. Huyck, 48 Mich. 620; Eaton v. Lancaster, 79 Me. 477.

As to the sale of a customer’s horse by a livery-stable keeper, see
Witkowski v. Stubbs, 91 Ga. 440, cited in § 30, supra. As to a livery-stable
keeper’s license, see Wilson v. Lexington (Ky.), 49 S. W. Rep. 806.

See, also, with reference to the subject of the present section, §§ 99-102,
supra.

LIVERY-STABLE KEEPERS. 447

while in the stable-keeper’s care was shorn of its mane and
tail, it was held that he was responsible and that, without
proof to the contrary, the damage would be presumed to have
been committed by his servants or a consequence of their
negligence. And where he permitted the owner of certain
horses to go into the stable at a late hour of the night and
take them out, in consequence of which a horse of the plain-
tiff’s escaped and was lost, either by passing out with the
others or by the door being left open, the stable-keeper was
held liable for the loss.18° But where the keeper rents a stall
to another who finds his own employee and food for his
horses, the former is not liable if the animals are lost or
stolen.187

It is the duty of the keeper when the horse becomes sick
to see that such treatment is given as reasonable care would
dictate, or else to give notice of sickness to the owner.1®*
Where the owner falsely represented that his horse had re-
covered from distemper, thereby causing an injury to two
stallions in the livery-stable, it was held, in an action brought
by the stable-keeper, that evidence of the profit the plaintiff
would probably have derived from the service of the animals
during the foaling season could be given, not definitely to fix
the measure of damages, but for the consideration of the jury
as an aid in estimating them.1*®

Evidence that the defendant left his horse at the plaintiff’s
stable and that the latter furnished board and attendance and
medical care for it, will, standing alone, justify a recovery
by the plaintiff.1°°

The horse of a customer standing at livery in a stable

* Durocher v. Maunier, 9 Low. Can. 8.

#6 Swann v. Brown, 6 Jones L. (N. C.) 150.

And see Lockridge v. Fesler (Ky.), 37 S. W. Rep. 65.
*' Berry v. Marix, 16 La. Ann. 248.

“8 Hexamer v. Southal, 49 N. J. L. 682.

™ Fultz v. Wycoff, 25 Ind. 321. And see § 89, supra.
2” Smith v. Kiniry, 86 Hun (N. Y.) 541.

448 BAILMENT,

is not exempt from rent due to the landlord of the
premises.**"

With regard to the stable-keeper’s own horses, when he
lets them to hire he impliedly promises that they are suitable
for the purpose for which they are required and not vicious.1
If he knows of the viciousness or bad habit of the animal, or
by the exercise of reasonable care should know of it, he is
liable for an injury resulting to the hirer.19* And if the hirer
took a horse not intended for him, the keeper knowing of the
mistake and of the purpose for which it was wanted, but
giving no notice, the latter is liable for an injury caused by
its unsuitableness for such a purpose.1** But the keeper’s im-
plied warranty does not extend to defects which he does not
know of and could not have discovered by the exercise of
due care, and he is not liable if the hirer is injured through
such defects.1°° Nor is he liable where his horses ran away
and injured one whom he had not contracted to drive.1%*

_And he is not responsible for the warranty of a particular
horse by one who conducts an auction sale of horses at his
stable, or for an agreement by him to take back the horse if
it is not as represented to be, where such stable-keeper is not
a party to the contract.1*7 Where the keeper knew that the
hirer expected to use a road over ice and failed to warn him
of circumstances which might render the road dangerous and
the horse and sleigh went through the ice and were lost, it
was held that there could be no recovery in damages.!%*

With reference to the employment of servants, it is his
duty, as was said in an Illinois case, “as a carrier of passengers,
to furnish a driver, competent, skilful and careful . . . and

™ Parsons v. Gingell, 4 C. B. 545. ® Windle v. Jordan, 75 Me. 149.

™ Lynch v. Richardson, 163 Mass. 160; Kissam v. Jones, 56 Hun (N. Y.)
432. As to his duty to notify the hirer, see § 93, supra.

™ Horne v. Meakim, 115 Mass. 326.

** Copeland v. Draper, 157 Mass. 558. Siegrist v. Arnot, 86 Mo. 200.

*™ Smith v. Kiniry, 86 Hun (N. Y.) 541.

See, also, as to warranty. § 30, supra.

™ McKenzie v. Lewis, 31 Nov. Sco. 408.

LIVERY-STABLE KEEPERS. 4149

to use that care, vigilance and foresight under the circum-
stances, and in view of the service undertaken, and the mode
of conveyance adopted, as would reasonably guard against
and prevent accidents and consequent injury to passengers,
and slight neglect or want of care in this regard creates lia-
bility to respond in damages for the injuries thereby occa-
sioned.” 19° If the hirer simply applies to a livery-stable
keeper to drive him between certain points or for a certain
time and the latter supplies everything that is necessary, the
hirer is in no sense responsible for negligence on the driver’s
part. But, if the carriage, horse and livery are the property
of the person hiring the services of the driver, especially where
the driver has often driven the hirer before and the horse
is one with whose peculiarities neither the livery-stable keeper
nor the driver has had an opportunity of becoming
acquainted, there is evidence that the driver is the servant,
not of the livery-stable keeper but of the hirer, and the latter
is responsible for injuries done by the horse escaping from
control.?°¢

A passenger in a livery carriage is not, as a matter of law,
guilty of contributory negligence in jumping from the car-
triage when the horses start to run away;7°! nor in getting
into the buggy without holding the reins behind a horse
said by the stable-keeper to be unsafe.?°?

108. Lien of lLivery-Stable Keepers—QOn the principle
already stated in discussing agistment, a livery-stable keeper,
as he does not confer any additional value on the animal en-
trusted to him, is not at the common law entitled to any lien
for his services.263 And if the stable-keeper employs, at the

*° Benner Livery & U. Co. v. Busson, 58 Ill. App. 17.

* Jones v. Scullard, [1898] 2 Q. B. 565.

** Benner Livery & U. Co. v. Busson, supra.

= Monroe v. Lattin, 25 Kan. 351.

** Judson v. Etheridge, 1 Cr. & Mee. 743; McDonald v. Bennett, 45
Ta. 456; Powers v. Hubbell, 12 La. Ann. 413; Whiting v. Coons, 2 id. 961;
Miller v. Marston, 35 Me. 153.

29

450 BAILMENT.

owner’s request, a veterinary surgeon to attend the horse
while standing at livery, he has no lien for the surgeon’s
charges.2°* Nor can the lien be created by the force of
usage prevailing in a particular town. ‘“To acquire the force
of law, such customs must have been established, and have
become general, so that a presumption of knowledge by the
parties can be said to arise.” 2°° Nor has such stable-keeper
a lien though he is also an innkeeper, unless the horses are
kept for a guest at the inn.?°° It is otherwise where there
is a special contract, as where an animal is kept by agree-
ment for the repayment of money advanced on it or for its
keep: in such a case the stable-keeper has a lien.?°7

A lien is very frequently, however, given by statute; 28
and this has been held to attach as the care and feed are being
bestowed and not merely from the time the board becomes
due.?°® And it attaches to a horse exempt from sale on
execution.??° The statutory lien does not exist where the
animal is placed with the livery-stable keeper without the
owner’s knowledge or authority.241_ Where the stable-keeper
has by statute, as against the actual bailor, a lien on an animal
left with him for the whole account in the line of his business,
yet if the depositor is not the true owner or there is a prior
lien, the stable-keeper’s lien is only good as against the true
owner or prior incumbrancer for the expense of feeding or
taking care of that particular animal.?!? Ordinarily, how-
ever, the right of lien is joint and several and one animal may

** Orchard v. Rackstraw, 9 C. B. 608.

* Saint v. Smith, 1 Coldw. (Tenn.) 51.

*° Wall v. Garrison, 11 Colo. 515. See § 100, infra.

*" Donathy v. Crowther, 11 Moore 479; Richards v. Symons, 8 Q. B. go.

*° See Andrews v. Crandell, 16 La. Ann. 208, and the cases cited infra.

*° Walls v. Long, 2 Ind. App. 202.

™ Flint v. Luhrs (Minn.), 68 N. W. 514—the statute being held not to
be unconstitutional as to such exempt property.

™ Lowe v. Woods, 100 Cal. 408; Stott v. Scott, 68 Tex. 302; Domnau
v. Green (Tex. App.), 19 S. W. Rep. goo.

™ Colquitt v. Kirkman, 47 Ga. 555.

LIEN OF LIVERY-STABLE KEEPERS. 451

be detained for the keep of all.*4* | Where the statutory lien
is on the animal only, a claim of a lien on a “horse and car-
riage” is not enforceable against a mortgagee, where there is
no way of distinguishing what sum was claimed for the car-
riage and what for the horse.*1*

The lien is lost by a voluntary surrender of the animal to
the owner or his representative.24> Where the stable-keeper
sells his stable and lets the owner take the horse, he loses
his lien unless he arranges that the horse is to be held for
his benefit.24® His lien is waived by surrendering possession
to a mortgagee without claim on his part and cannot be
revived by subsequent payment by and assignment of the
lien to the mortgagee, it not appearing that the assignment
was executed pursuant to any agreement made when the
horses were taken away.*17 Where A., a livery-stable keeper,
received a horse from a trainer and took an assignment of his
account against the owner, and the latter in A.’s absence
took his horse away and put it in B.’s stable and repudiated
to A. the trainer’s demand and A. said he would let it go until
the trainer came home and they would then “fix it up,” and
then took the horse away from B.’s stable, in the latter’s
absence, it was held in an action by B. against A. to recover
possession that the latter’s lien, if any, for keep or on the
assigned account was waived when the adjustment was post-
poned till the return home of the trainer.?1®

As to one who has acquired a subsequent bona fide interest

*8 Young v. Kimball, 23 Pa. St. 193.

™4 Varney v. Jackson, 2 Mo. App. Repr. 1374.

And see Robinson v. Kaplan, 21 Misc. (N. Y.) 686; Sides v. Cline,
19 Pa. Co. Ct. 481. ‘

"6 Ferriss v. Schreiner, 43 Minn. 148; Seebaum v. Handy, 46 O. St. 560;
Vinal v. Spofford, 139 Mass. 126; Cardinal v. Edwards, 5 Nev. 36; Gorman
v. Williams, 26 Misc. (N. Y.) 776.

It is lost, also, by voluntarily accepting the note of a third person for
the amount due: Gorman v. Williams, supra.

"6 Fitchett v. Canary, 59 N. Y. Super. Ct. 383.

"7 Shellhammer v. Jones, 87 Ia. 520. *8 Bray v. Wise, 82 Ia. 581.

452 BAILMENT.

in the horse, the livery-stable keeper’s lien is divested where
he has consented to the removal.**® But the lien is not lost
by the mere temporary absence of the horse from the stable
while it is being used in the usual manner by the owner
who intends to return it.2?° Nor if it is wrongfully removed,
while it is in the possession of the owner or one claiming
under him with notice of the lien;*** though it is, perhaps,
otherwise as against a bona fide purchaser.?”* Where it is
a part of the ordinary course of business to deliver horses
to the driver as often as they are needed, the loss of custody
of some of them does not defeat the lien, which is joint and
several.2** And the fact that the owner employs his owh
driver is not inconsistent with the lien.**+

The fact that the horse has been wrongfully removed will
not, however, protect the livery-stable keeper’s lien if he has
failed to give the statutory notice.??°

The stable-keeper does not abandon his lien by using the
horses reasonably, and evidence to show that he has waived
it by claiming too much should be clear and distinct.22* Nor
does the fact that he used the horses on a hack from which
he derived profit amount necessarily to a conversion so as
to prevent his enforcing his lien, where there was evidence
that they were benefited thereby.??"

Where the bailor had notified the stable-keeper that the
horse no longer belonged to her and she would not be re-
sponsible for its keep, it became the duty of the keeper to

*° Fishell v. Morris, 57 Conn. 547; State v. Shevlin, 23 Mo. App. 598.

* Caldwell v. Tutt, 10 Lea (Tenn.) 258; Welsh v. Barnes, 5 N. D. 277;
Walls v. Long, 2 Ind. App. 202; Young v. Kimball, 23 Pa. St. 193.

See Cardinal v. Edwards, 5 Nev. 36.
oa Heaps v. Jones, 23 Mo. App. 617; Wallace v. Woodgate, 1 C. & P.

See Vinal v. Spofford, 139 Mass. 126.

** Young v. Kimball, 23 Pa. St. 193. 4 Thid.

6 Kline v. Green, 83 Hun (N. Y.) 190.

See Lessels v. Farnsworth, 13 Daly (N. Y.) 473; Jackson v. Kasseall,
30 Hun (N. Y.) 231.

** Munson v. Porter, 63 Ia. 453. 7” Brintnall v. Smith, 166 Mass. 253.

LIEN OF LIVERY-STABLE KEEPERS. 453

enforce his lien or otherwise assert his legal rights within
a reasonable time and not needlessly permit damages to
grow.?#8

109. Innkeepers.—The exact extent of the liability of an
innkeeper, apart from statutory law, has been a much mooted
question, the decisions on the subject being quite irrecon-
cilable. On the one hand he has been held to be, like a
common carrier, an insurer of the goods placed in his charge
and absolutely responsible for their safe-keeping except in
case of loss or injury by act of God or by the public enemy
or by the negligence of the guest himself or his servants.
Under this rule the innkeeper is liable where the loss results.
from a fire without his fault or from robbery or burglary.??°

On the other hand, the rule as to liability has been thus
stated by Judge Story in his work on Bailment: “By the
Roman Law, if shipmasters, innkeepers and stable-keepers
did not restore what they had received to keep safe, they were
held liable; and this is the law of Continental Europe... .
But innkeepers are not responsible to the same extent as com-
mon carriers. The loss of the goods of a guest while at an
inn will be presumptive evidence of negligence on the part
of the innkeeper or of his domestics. But he may, if he can,
repel this presumption by showing that there has been no
negligence whatsoever, or that the loss is attributable to the
personal negligence of the guest himself; or that it has been
occasioned by inevitable casualty or by superior force.” 78°

*8 Mason Stable Co. v. Lewis, 16 Misc. (N. Y.) 359.

*“° Lawson Bailm. § 76; Hulett v. Swift, 33 N. Y. 571; Russell v. Fagan,
7 Houst. (Del.) 389; Thickstun v. Howard, 8 Blackf. (Ind.) 535. :

*° Story Bailm. §§ 464, 467, 472. See note by Schouler to oth ed.,
§ 472, and also Browne Bailm. 80, where it is said: “In recent times this
necessity [7. e., of absolute liability] has almost entirely passed away,
at least in the older and orderly communities, and the ancient liability
has been by statutes in England and most of the United States reduced
to the exercise of a high degree of care, and the innkeeper is absolved
from the consequences of fire and of robbery without his fault.”

See, also, 11 Amer. & Eng. Encyc. of Law, 58, etc.

454 BAILMENT.

Under this rule, which seems to be supported by the weight
of authority, the innkeeper may exonerate himself by show-
ing that the injury to or loss of an animal placed in his charge
was not due to his negligence or that of his servants.?3! This
applies especially to the case of the destruction of an animal
by fire or otherwise for, as was said in an Illinois case,—“an
innkeeper can have no motive to destroy the animal of his
guest and there is not the same reason for holding him re-
sponsible at all events for such a loss, as there would be a
common carrier or even an innkeeper for the loss of goods
which had disappeared from his possession; because in the
latter case he may have converted the goods to his own use,
while, in the former, he could gain nothing by the death of
the animal. Accordingly a distinction is made in the law
books between the liability of innkeepers and common car-
riers, particularly for losses occasioned by the death of
animals.” 732

The innkeeper is bound to provide safe stabling for the
horses of his guests and is liable for any injury resulting from
his negligence in that respect.283 Where a guest’s horse is
injured by being kicked by another, the presumption is that
the innkeeper was negligent.?8* So, where it is choked to
death in a stall owing to the method of hitching or the con-
dition of the stall.28° But where the plaintiff tied a horse
to a stall where it had been previously kept and the next day
it was found dead from having caught its head in a trough
and it was not sufficiently shown that the plaintiff was a

*! Dawson v. Chamney, 5 Q. B. 164; Cutler v, Bonney, 30 Mich. 259:
Merritt v. Claghorn, 23 Vt. 177; Vance v. Throckmorton, 5 Bush. (Ky.)
41; Hill v. Owen, § Blackf. (Ind.) 323; Metcalf v, Hess, 14 Ill. 129.

*? Metcalf v. Hess, supra. And see the cases cited in the last note.

™ Dickerson v. Rogers, 4 Humph. (Tenn.) 179. And see, as to cattle,
Hilton v. Adams, 71 Me. 10.

* Dawson v. Chamney, supra; Sibley v. Aldrich, 33 N. H. 553; Clary
v. Willey, 49 Vt. 55.

*° Walker v. Sharpe, 31 U. C. Q. B. 340; Jordan v. Boone, 5 Rich. L.
(S. C.) 528

INNKEEPERS. 455.

guest, the innkeeper was held not liable, his want of ordinary
care not having been proved.?°° No private arrangement
between the landlord and his hostler can affect the guest,
and where, by arrangement with the innkeeper, the hostler
took charge of horses and exercised a guest’s horse which
had been left there and it was frightened by a locomotive and
injured, the innkeeper was held liable.2** If the hostier omits
to put bits in the mouth of the guest’s hired horse whereby
it becomes unmanageable and damages the buggy, the guest
is liable, as the innkeeper or his servant is not presumed to
possess peculiar skill which authorizes the hirer of the animal.
to act without responsibility.228 And the innkeeper is not
responsible for the consequences of the negligent driving of
a guest to whom he had hired a horse and vehicle.*° And,
although licensed to let post-horses, he is not liable to an
action for refusing to supply them to a guest.?*°

Where the guest keeps goods for show or sale, the inn-
keeper is relieved from special liability as to such goods, as
where the defendant agreed to keep the plaintiff’s stallion for
two days in each week during the breeding season and to
furnish oats and meals for the man in charge and the horse
was lost in a conflagration of the defendant’s stable.?*1 So,
an innkeeper is not liable, without proof of negligence, for
the loss of a mule put by a drover into a lot belonging to
the landlord separate from the inn, to be kept under a special
agreement. “If one having a drove of horses or hogs to sell,
puts up at an inn and, besides entertainment for himself,
procures from the landlord a lot in which to keep his animals,
for the purpose of showing and selling them, they are not
specially protected; and it makes no difference whether, by
the agreement, the landlord has them fed or whether the

6 Thickstun v. Howard, 8 Blackf. (Ind.) 535.

7 Day v. Bather, 2 H. & C. 14.

78 Hall v. Warner, 60 Barb. (N. Y.) 198.

* Béliveau v. Martineau, Montr. L. Rep. 2 Q. B. 133.

Dicas v. Hides, 1 Stark. 247. *1 Mowers wv. Fethers, 61 N. Y. 34.

456 BAILMENT. .
drover buys provender of the landlord or a third person and
feeds them himself; for, as Lord Ellenborough says, . .
‘An innkeeper is not bound by law to find show-rooms for
his guests, but only convenient lodging-rooms and
lodging.’ 242 But where, by the innkeeper’s direction, the
guest took his horse and cart to a livery-stable, belonging
to the innkeeper but not connected with the inn, and put
them in the care of the innkeeper’s hostler, it was held that
this was a delivery to the innkeeper for safe custody and the
property was infra hospitium.?**

It was held in Calye’s case *** that, if the horse of a guest is
stolen, the innkeeper is not liable if it were put to pasture
at the guest’s request: otherwise, if the innkeeper of his own
accord had put the horse to grass. Of this case Judge Story
says: “However, it has been said that this rule requires some
qualifications; for if it is the common custom of the country
(as it is in the summer season in the interior towns of
America) to put horses in such a case to pasture, the implied
consent of the owner may be fairly presumed, if he knows
the custom. And the common usage of the country must
have great weight in all such cases. In the country towns in
America it is very common to leave chaises and carriages
under open sheds all night at inns; and also to leave the
stable doors open or unlocked. Under such circumstances,
if a horse or chaise should be stolen, it would deserve con-
sideration how far the innkeeper would be liable, as the
traveller might be presumed to consent to the ordinary
custom.” 245

An innkeeper is not liable as such if sheep are put to pasture
under the guest’s direction and are injured by eating poison-
ous plants, unless he is chargeable with negligence.?4®
Where he is sued for weakness developed in a horse while

Neal v. Wilcox, 4 Jones L. (N. C.) 146.
“® Cohen v. Manuel, 91 Me. 274.

8 Co. 32 a. “© Story Bailm. § 478.

“° Hawley v. Smith, 25 Wend. (N. Y.) 642.

INNKEEPERS. 457

under his care, he may show that the injury was the result
of disease.?47

The high degree of care required of an innkeeper is not
necessary where the relationship of innkeeper and guest does
not exist: the former is then merely a bailee for hire and has
no lien on the animal.?#8 It becomes important, therefore,
to consider who is a guest. In some of the older cases it
was held that if one leaves his horse at an inn though neither
he nor his servants lodge there, this alone constitutes him a
guest so far as the horse is concerned,?*® and this opinion has
been approved of in some modern cases.° It cannot, how-
ever, be considered any longer the prevailing doctrine.?*"

An innkeeper receiving horses as a livery-stable keeper has
no lien because the owner takes occasional refreshment or
sends a friend to be lodged there at his charge.?®? Nor is a
horse to be considered the property of a guest where it is
placed at the inn by police under suspicious circumstances.
But where the innkeeper agreed with the owner of the horse
to entertain the man having charge of it one day in each
week or oftener, if he stopped with the horse, the innkeeper
furnishing provender and allowing the horse to be kept in
acertain stall under the exclusive care of the man in charge,
it was held that the innkeeper was answerable as such for an
injury received by the horse in the stall.25* On the other

7 Howe Mach. Co. v. Pease, 49 Vt. 477.

* Healey v. Gray, 68 Me. 489; Ingallsbee v. Wood, 33 N. Y. 577.

* Gelley v. Clerk, Cro. Jac. 188; Yorke v. Grenaugh, 2 Ld. Raym. 866,
Holt, C. J. diss.

*° Mason v. Thompson, 9 Pick. (Mass.) 280; McDaniels v. Robinson,
26 Vt.316. In Mason v.Thompson, it was held that if the innkeeper is also
alivery-stable keeper, he must give notice that he receives the horse in
the latter capacity or he will be liable in the former.

7 Browne Bailm. 75; Ingallsbee v. Wood, 33 N. Y. 577; Grinnell
v. Cook, 3 Hill (N. Y.) 485; Healey v. Gray, 68 Me. 489.

7? Smith v. Dearlove, 6 C. B. 132.

*§ Binns v. Pigot, 9 C. & P. 208. But see Johnson v. Hill, 3 Stark. 172,
cited infra.

4 Washburn v. Jones, 14 Barb. (N. Y.) 193.

458 BAILMENT.

hand, where the plaintifi’s hired man boarded at the defend-
ant’s inn for some months and kept the plaintiff's horses
in his livery-stable, going out with them to work every morn-
ing and returning them at night, and the defendant charged
a fixed sum per week for the man’s board and the horses’
keep, it was held that the defendant had no lien on the horses
for their keep, neither the plaintiff nor his man being a guest
within the common-law meaning of the term, and there being
no continuing possession of the horses nor right to it.2°° And
where an innkeeper issued invitations to a Fourth of July
party at the inn with music, supper, and horse-stabling for
two dollars and one attended and paid the two dollars re-
quired and more for drinks, it was held, in an action brought
by the latter for an injury to his horse, that the relation of
innkeeper and guest did not exist.?°®

An occasional absence of the guest does not destroy this
relationship so far as concerns either the lien or the degree
of care required of the innkeeper.?5"

The point has been raised whether a traveller who sends
his horse in advance to an inn, saying he would soon be there
himself, is to be deemed a guest from the time the innkeeper
receives his property.*°° The relation is not terminated
when the guest has paid his bill and his servant has begun to
harness the team.?5°

The innkeeper’s lien on the property of his guest is given
to him by law as compensation for the high degree of care
that is required of him and for the necessity he is under of
accepting, like a common carrier, whatever is brought to
him. It extends to the animals of his guest both for their

** Neale wv. Croker, 8 U. C. C. P. 224.
So, where the owners of a line of stages entered into a contract with an

innkeeper for the stabling and feed of their horses: Dixon v. Dalby,.
11 U. C.Q. B. 79.

™ Fitch v. Casler, 17 Hun (N. Y.) 126.

* Grinnell v. Cook, 3 Hill (N. Y.) 485, per Bronson, J.; Allen v. Smith,.
12 C. BLN. S. 638.

™ Grinnell v. Cook, supra. ™* Seymour v. Cook, 53 Barb. (N. Y.) 451.

INNKEEPERS. 459

keep and for the charges for the guest’s personal entertain-
ment.?®° The lien exists only as against one who is at the
time a guest, not one who is an ordinary bailor for hire.?*+ If,
after the lien has accrued, the animal is removed and sub-
sequently brought back, the lien is revived on its return.??

The innkeeper has a lien on a horse for its keep although
it had been wrongfully seized under color of a legal proceed-
ing, unless he knew that the party making the seizure was a
wrongdoer at the time.*** But the owner of a stolen horse
taken to an inn is not liable to the innkeeper for a lien en its
keep to more than the value of the horse: the innkeeper must
look for the residue to the person from whom he received
the horse.2®4 And the sale of a stolen horse for the inn-
keeper’s lien, as directed by statute, does not divest the real
owner’s title.26

The lien is waived where the innkeeper sells the animal in
order to reimburse himself.2°° At the common law he could
not sell at all: his remedy to enforce the lien was by an action
in the nature of a bill in chancery.?°7 .

Where one requires refreshment at an inn while accom-
panied by a large dog and insists, against the innkeeper’s
protest, on the dog staying with him, the presence of the
dog affords a lawful excuse to the innkeeper to refuse to
receive the traveller or give him refreshment or accom-
modation.?68

* Lawson Bailm. § 82; Mulliner v. Florence, 3 Q. B. D. 484.

** Hickman v. Thomas, 16 Ala. 666; Grinnell v. Cook, supra; Fox wv.
McGregor, 11 Barb. (N. Y.) 41; Elliott v. Martin, 105 Mich. 506.

= Huffman v. Walterhouse, 19 Ont. 186.

*8 Johnson v. Hill, 3 Stark. 172.
See Binns v. Pigot, 9 C. & P. 208, cited supra.

* Black v. Brennan, 5 Dana (Ky.) 310.

75 Gump v. Showalter, 43 Pa. St. 507.

*° Mulliner v. Florence, 3 Q. B. D. 484.

** Fox v. McGregor, 11 Barb. (N. Y.) 41.

*8 Reg. v. Rymer, 46 L. J. M. C. 108.

TITLE. Y¥;

BAILMENT AND CARRIAGE.

CHAPTER II.

CARRIERS OF ANIMALS.

110. Nature of the contract of car- 115. Delay and accident.

riage. 116. Injuries due to the nature
111. Restriction of liability. and condition of animals.
112. Receiving; loading; unload- 117. Notice.

ing; delivery. 118. Evidence.
113. Mode of transportation. 119. Damages.

114. Food and water.

110. Nature of the Contract of Carriage——The exact char-
acter of the contract for the carriage of animals has been the
subject of much judicial discussion. The prevailing opinion
and, as it seems, the better one, is that carriers of live-stock
are, like carriers of goods, common carriers and insurers
against all losses except those resulting from the acts of God
or the public enemy or the shipper himself, or from the
peculiar nature and disposition of the property carried.

2 Wood Railroads, 2d ed., 1928 n., 1929, where the rule is said to be the
one adopted by nearly all of the American and later English cases, though
a number of the earlier English cases are said to induce grave doubts as to
whether the liability of a carrier of live-stock was any more than that
of a carrier of passengers and did not extend to actual negligence only.
But see the discussion of these cases in the present section.

And see 67 Am. Dec. 208, note, where the opinion of Mr. Justice Willes
in Blower v. Gt. West. R. Co., L. R. 7 C. P. 655, is quoted to the effect
that the conflict of opinion on the question “may turn out after all to be
a mere controversy of words,” and the statement is made that “in most

460

NATURE OF THE CONTRACT OF CARRIAGE. 461

Though it may be optional with the railway companies
whether they will accept this full responsibility, yet if they do
so without any express restriction, they are liable as common
carriers.2 But they may for a less hire agree simply to trans-
port cattle, furnish cars, etc., and if the shipper agrees to the
lower rate, he cannot hold them as common carriers. “For
a given reward they proffer to become his carrier; for a less
reward they proffer to furnish the necessary means that the
owner may be his own carrier.” * Thus, the liability of a
common carrier does not attach to a company that has con-
tracted to move a menagerie or circus in the latter’s own cars,
controlled by its own agents, and run on schedule to suit the
menagerie ;* though the mere fact that it uses the shipper’s
private car will not alone have this effect. So, the company
may decline to hold itself out as a common carrier of dogs,
and merely take them as an ordinary bailee for hire or for
the accommodation of passengers.®

cases it will be found that, whatever may be the form of the rule laid down
upon this subject, the carrier will be held liable under the same circum-
stances.”

See also Hutchinson Carriers, §§ 221, 222; Kan. Pac. R. Co. wv.
Nichols, 9 Kan. 235; Mo. Pac. R. Co. v. Harris, 67 Tex. 166; Cohen v.
Hume, 1 McCord (S. C.) 4309.

The question was held a doubtful one in McManus v. Lancashire & Y.
R. Co., 2 H. & N. 693, 4 H. & N. 327, and in Honeyman v. Or. & C. R.
Co., 13 Oreg. 352.

The decisions will be considered in detail in the next section in discuss-
ing the restriction of liability, negligence, etc.

? Palmer v. Grand Junc. R. Co., 4 M. & W. 749, where they were held
liable for an injury to a horse by the train colliding with a horse straying
through a broken fence.

® Kimball v. Rutland & B. R. Co., 26 Vt. 247. And see East Tenn. &
Ga. R. Co. v. Whittle, 27 Ga. 535; Harris v. Midland R. Co., 25 W. R. 63.

*Coup v. Wabash, St. L. & P. R. Co., 56 Mich. 111; Robertson v. Old
Colony R. Co., 156 Mass. 525; Chic., M. & St. P. R. Co. v. Wallace, 66
Fed. Rep. 506.

® Fordyce v. McFlynn, 56 Ark. 424.

® Dickson v. Gt. North. R. Co., 18 Q. B. D. 176; Richardson v. N. E. R.
Co., L. R.7 C. P. 75; Honeyman v. Or. & C. R. Co., 13 Oreg. 352.

But notice of that fact must be given to the owner, or the carrier will

462 CARRIERS OF ANIMALS.

It was held, however, in Michigan that a charter granted
to a railway company before the prevalence of the custom
of carrying live-stock by rail, did not impose on the company
the duty of transporting cattle, except by a special agree-
ment: hence, the company were not common carriers of
animals. The court said: “The transportation of cattle and
live-stock by common carriers by land was unknown to the
common law, when the duties and responsibilities of common
carriers were fixed, making them insurers against all losses
and injuries not arising from the acts of God or of the public
enemies. These responsibilities and duties were fixed with
reference to kinds of property involving, in their transporta-
tion, much fewer risks and of quite a different kind from those
which are incident to the transportation of live-stock by rail-
road. Animals have wants of their own to be supplied; and
this is a mode of conveyance at which, from their nature and
habits, most animals instinctively revolt; and cattle especially,
crowded in a dense mass, frightened by the noise of the
engine, the rattling, jolting and frequent concussions of the
cars, in their frenzy injure each other by trampling, plunging,
goring, or throwing down; and frequently, on long routes,
their strength exhausted by hunger and thirst, fatigue and
fright, the weak easily fall and are trampled upon and unless
helped up, must soon die. Hogs also swelter and perish. .. .
It is a mode of transportation which, but for its necessity,
would be gross cruelty and indictable as such. The risk may
be greatly lessened by care and vigilance, by feeding and .
watering at proper intervals, by getting up those that are
down, and otherwise. But this imposes a degree of care and
an amount of labor so different from what is required in

be liable: Kan. City, M. & B. R. Co. v. Higdon, 94 Ala. 286. Regula-
tions prohibiting passengers from taking dogs with them in the passen-
ger cars and requiring payment for carrying dogs in baggage cars are
reasonable: Gregory v. Chic. & N. R. Co., 100 Ia. 345.

As to responsibility for receiving a vicious dog, see Trinity & S. R.
Co. v. O’Brien (Tex. Civ. App.), 46 S. W. Rep. 389.

NATURE OF THE CONTRACT OF CARRIAGE. 463

reference to other kinds of property that I do not think this
kind of property falls within the reasons upon which the com-
mon-law liability of common carriers was fixed.”* This de-
cision has been followed in later cases in the same State.§
And the opinion that railway companies are not insurers of
animals but are bound to use only reasonable care and dil-
igence has been expressed in Tennessee,? Kentucky,’® Ala-
bama,'! and New York.??

The importance of the distinction consists in the fact that,
if the carrier of live-stock is a common carrier and insurer,
“in case of loss or injury to the freight,” as is said by a well-
known authority, ‘the burden of proving that it arose from
its own fault rests upon him if he would excuse himself upon
that ground. Whereas, if he is to be considered merely as the
paid agent of the owner for the transportation of his stock,
his liability would rest solely upon the question of negligence,
the burden of proving which would be upon the owner of the
freight.”

The contract of carriage is controlled by the law of the
State where it is made, unless a contrary intention is shown.**
And a provision in a contract for the transportation of a
person to accompany the shipment, that questions arising
under it shall be determined by the laws of a certain State,
does not indicate the intention that the contract on the other

7 Mich. South. & N. I. R. Co. v. McDonough, 21 Mich. 165, 189, per
Christiancy, J.

8 See Lake Shore & Mich. S. R. Co. v. Perkins, 25 Mich. 329; Heller
v. Chic. & G. T. R. Co., 109 id. 53.

And see an article in 5 Alb. L. Jour. 299 approving of that case.

That railroads in Michigan are strictly private enterprises and have not
a quasi-public character, see Kan. Pac. R. Co. v. Nichols, 9 Kan. 235.

° Baker v. Louisville & N. R. Co., 10 Lea (Tenn.) 304.

” Louisville, Cinc. & L. R. Co. v. Hedger, 9 Bush. (Ky.) 645.

1B, Tenn., V. & G. R. Co. v. Johnston, 75 Ala. 596.

2 Cragin v. New York Cent. R. Co., 51 N. Y. 61.

#8 Hutchinson Carriers § 222.

“Til, Cent. R. Co. v. Beebe, 174 Ill. 13.

464 CARRIERS OF ANIMALS.

side of the paper for the shipment of horses shall be governed
by such laws.15

Where the animals are to be sent beyond the terminus of
the contracting carrier, a question arises as to its respon-
sibility for any loss sustained on the line of a connecting car-
rier. In England, where the contract is to forward the live-
stock all the way, the original carrier alone is liable for an
injury received on one of the other lines, though it may have
contracted that it shall incur no liability beyond its own line:
there is no privity of contract with the connecting carriers.1®
In this country, however, the mere receipt of the property by
the connecting carrier creates sufficient privity between it and
the shipper to enable the latter to maintain an action against
it on the contract and the connecting carrier may avail itself
of limitations in the contract by specially pleading them.'*
The action in such a case may be brought against the carrier
in fault as well as against the carrier primarily responsible.
This is said to be the universal law of this country.'®

Where there is no special contract or the contract is simply
to deliver the stock to a connecting carrier, the responsibility
of the carrier is confined to its own line and ceases with
delivery.1° In England and in some of the States the mere
receipt of goods to be carried to a destination beyond the
original carrier’s line is held to be evidence of a contract to
transport beyond its terminus, but this rule does not prevail

* Brockway v. Amer. Exp. Co., 171 Mass. 158.

* Coxon v. Gr. Western R. Co., 5 H. & N. 274.

* Halliday v. St. Louis, K. C. & N. R. Co., 74 Mo. 1509.

An agreement to accept a proportionate amount of freight has been
held in Texas not to create privity nor to make the company a connecting
line in the statutory sense: Gulf, C. & S. F. R. Co. v. Short (Tex. Civ.
App.), 51 S. W. Rep. 261.

* Hutchinson Carriers § 150, citing contra some early cases in Georgia,
where the law has since been changed by statute.

* Myrick v. Mich. Cent. R. Co., 107 U. S. 102; Ala. Gr. South. R. Co.
v. Thomas, 83 Ala. 343; Gulf, C. & S. F. R. Co. v. Baird, 75 Tex. 256;
Louisville & N. R. Co. v. Cooper (Ky.), 42 S. W. Rep. 1134.

NATURE OF THE CONTRACT OF CARRIAGE. 465

in a majority of the States.2° Where a company contracted
to “forward” cattle to a certain point beyond its own line
and that it and the connecting lines should be liable only for
gross negligence, it was held to be liable for the ordinary
negligence of itself or any one of the connecting carriers.”

A carrier making a through contract for the shipment of
stock over its own and a connecting line may make an ex-
press contract limiting its liability to its own line.2? This
limitation enures to the benefit of each of the connecting
carriers and confines its liability to its own line.2? Where the
liability is limited to the delivery of the stock to a connecting
line and it is delivered to a stock-yards company to be re-
delivered to the other line, the original carrier is liable for
injuries received while the stock is in the hands of the stock-
yards company. A connecting carrier receiving horses,
though with notice that the shipper attempted to prepay
freight but had not paid in full according to its tariff, has a

7” Hutchinson Carriers § 149; McCarn v. Internat. & G. N. R. Co., 84
Tex. 352; Ortt v. Minneapolis & St. L. R. Co., 36 Minn. 396.

2 St. Louis, K. C. & N. R. Co. v. Piper, 13 Kan. 505.

As to the meaning of the term “to forward,” see Hutchinson Carriers
§§ 155, 156.

2 Hutchinson Carriers § 149 b.; Ortt v. Minneapolis & St. L. R. Co.,
supra; McCarn v. Intecnat. & G. N. R. Co., 84 Tex. 352; Gulf, C. & S.
F. R. Co. v. Thompson (Tex. Civ. App.), 21 S. W. Rep. 186; Gulf, W. T.
& P. R. Co. v. Griffith (Tex. Civ. App.), 24 id. 362.

Some of the Texas Court of Appeal cases are opposed to this. See
Gulf, C. & S. F. R. Co. v. Vaughn, 4 Tex. App. (Civ. Cas.) 269; Tex. &
Pac. R. Co. v. Scrivener, 2 id. 284. But the former case is expressly dis-
approved of in McCarn v. Internat. & G. N. R. Co., supra.

See, however, where the companies are partners, Gulf, C. & S. F. R. Co.
v. Wilson, 7 Tex. Civ. App. 128; Galveston, H. & S. A. R. Co. v. Houston
(Tex. Civ. App.), 40 S. W. Rep. 842; Hutchinson Carriers §§ 158-170.

And see as to an interstate shipment, Galveston, H. & S. A. R. Co.
v. Armstrong (Tex. Civ. App.), 43 S. W. Rep. 614.

2 ft Worth & D. C. R. Co. v. Williams, 77 Tex. 121; Internat. & G.
N. R. Co. v. Mahula, 1 Tex. Civ. App. 182.

* Gulf, C. & S. F. R. Co. v. Eddins, 7 Tex. Civ. App. 116; Larimore
v. Chic. & A. R. Co., 65 Mo. App. 167.

30

466 CARRIERS OF ANIMALS.

lien on the horses for the amount of the additional freight.”
A plea that the way-bill showed that mules were shipped “at
a released rate, which was a reduced rate of freight” was held
not equivalent to an allegation that the defendant, a connect-
ing carrier, accepted the contract of the original carrier re-
leasing it and the connecting carriers at their option from
liability for damages not caused by negligence.*® Where the
defendant is not liable for “anything beyond” its line “except
to protect through rate of freight,” it is not liable for the re-
fusal of the connecting carrier to deliver cattle unless a
greater rate of freight is paid.?*

The shipper of horses who is present and permits the con-
necting carrier to receive his horses and pay advance charges,
thus acquiring a lien, cannot recoup the damages done to the
horses by the prior carrier against such lien, though the con-
necting carrier knew of the damages and of the shipper’s
intention to demand compensation from the prior car-
rier?

In the absence of evidence to the contrary, the injury is
presumed to have taken place on the line of the last carrier.?®
And where there is no special contract, the burden is not on
the shipper to show on what line the injury occurred, though
a person accompanied the cattle:°° otherwise, where the
liability is expressly limited.*?

Where there is a stipulation in the contract that the shipper
may accompany the stock free of charge, this can be availed

* Crossan v. N. Y. & N. E. R. Co., 149 Mass. 196. And see Lewis v.
Richmond & D. R. Co., 25 S. C. 249.

* Western R. Co. of Ala. v. Harwell, 97 Ala. 341.

* Little Rock & Ft. S. R. Co. v. Odom, 63 Ark. 326.

* St. Louis, I. M. & S. R. Co. v. Lear, 54 Ark. 300.

*” Paramore v. Western R. Co., 53 Ga. 383; Tex. & Pac. R. Co. v. Barn-
hart, 5 Tex. Civ. App. 601.

* Tex. & Pac. R. Co. v. Tom Green County Cattle Co. (Tex. Civ. App.),
38 S. W. Rep. 1138.

"St. Louis S. W. R. Co. v. Vaughan (Tex. Civ. App.), 41 Ss. W.
Rep. 415.

NATURE OF THE CONTRACT OF CARRIAGE. 467

of only by him. Another person who assists him and claims
an interest in the stock cannot claim such rights as a free
passenger.®?. A passenger on a drover’s pass is a passenger
for hire and his rights and obligations are similar to those
of an ordinary passenger who has bought a ticket.** But
this does not mean that he is entitled to all of such rights:
there is an implied condition that he will submit to whatever
inconveniences are necessarily incident to the undertaking.**
“This principle by no means implies that a passenger upon
a freight train, having in charge live-stock for transportation,
is entitled to the same facilities for getting on and off the
cars that persons have upon strictly passenger trains where
stations and platforms are usually provided. No negligence
can be imputed to the defendant by an omission to erect such
stations or platforms.” 3° But a company cannot stipulate
against liability for an injury to such a passenger caused by
its negligence any more than in the case of an ordinary
passenger for hire.*° If he fails to remain in the caboose
car, however, as he had contracted to do, the company will
not be liable for an injury received by him while voluntarily

® Richmond & D. R. Co. v. Burnsed, 70 Miss. 437.

That a statute requiring railway companies to furnish free transportation
to shippers of live-stock did not apply to interstate shipments, see State
wv. Otis (Kan.), 56 Pac. Rep. 14.

38 Little Rock & Ft. S. R. Co. v. Miles, 40 Ark. 298; Pa. Co. v. Greso,
79 Ill. App. 127; Rosted v. Great Northern R. Co. (Minn.), 78 N. W.
Rep. 971; Saunders v. South. Pac. Co., 13 Utah 275; Louisv. & N. R. Co.
wv. Bell, 100 Ky. 203. See, also, 8 Am. Eng. R. R. Cas., N. S., 419 n.;
61 Am. St. Rep. 89 n.

*® Omaha & R. V. R. Co. v. Crow, 47 Neb. 84. And see Mo. Pac. R.
Co. v. Tietken, 49 id. 130; Heyward v. Boston & A. R. Co., 169 Mass. 466.

3 Ditcher v. Lake Shore & M. S. R. Co., 8 N. Y. Suppt. 380.

% Carroll v. Mo. Pac. R. Co., 88 Mo. 239; N. Y. Cent. R. Co. v. Lock-
wood, 17 Wall. (U. S.) 357; Cleveland, P. & A. R. Co. uv. Curran, 19 O.
St. 1; Ill. Cent. R. Co. v. Beebe, 174 Ill. 13; Pennsylvania R. Co. v. Hen-
derson, 51 Pa. St. 315; Smith v. New York Cent. R. Co., 24 N. Y. 222;
Porter v. N. Y., L. E. & W. R. Co., 59 Hun (N. Y.) 177; St. Louis S.
W. R. Co. v. Nelson (Tex. Civ. App.), 44 5S. W. Rep. 179.

468 CARRIERS OF ANIMALS.

standing or walking on the top of a moving car.** But this
provision may be waived.*§

It has been held that, in the absence of a special contract
by the carrier to look after the stock, a shipper who neglects
to send a care-taker assumes all damages caused by their dis-
position to crowd and injure one another.®® A contract that
the plaintiff should accompany and take care of the stock
may be pleaded, though the action sounds in tort.*® Cattle-
owners on a ship were held not entitled to share in a salvage
reward for saving derelict, they not assisting personally in
any way.*?

A man sent by the owner of horses with the car that con-
tained them, who had the money to pay for the freight, has
an implied authority to make any reasonable contract for the
shipment of the horses to their final destination, beyond the
point where the owner’s contract terminates.*?

Where it is impossible to carry out the original contract,
owing to a strike of the carrier’s employees, an agent of the
carrier may make a new contract, imposing a greater obliga-
tion on it, there being no other consideration than that the
shipper relieves the agent of the necessity of a personal super-
vision of the stock.**

7 Ft. Scott, W. & W. R. Co. v. Sparks, 55 Kan. 288. And see Mobile
& O. R. Co. v. Bogle (Tenn.), 46 S. W. Rep. 760; Walker v. Green, infra.

*Mo., K. & T. R. Co. v. Cook, 8 Tex. Civ. App. 376. And see III.
Cent. R. Co. v. Beebe, supra; Tex. & Pac. R. Co. v. Reeder, 170 U. S.
530; Chic., R. I. & P. R. Co. v. Lee, 92 Fed. Rep. 318.

But permission by the trainmen to ride in the freight car is no excuse:
Walker v. Green (Kan.), 56 Pac. Rep. 477.

* Heller v. Chic. & G. T. R. Co., 109 Mich. 53. And see Terre Haute
& L. R. Co. v. Sherwood, 132 Ind. 129.

“ Oxley v. St. Louis, K. C. & N. R. Co., 65 Mo. 629. See Un. Pac. R.
Co. v. Langan, 52 Neb. 105, as to the breach of such a contract.

* The Coriolanus, 15 P. D. 103.

“ Armstrong v. Chic., M. & St. P. R. Co., 53 Minn. 183.

So, on behalf of the carrier, a station agent has authority to make a
contract within the scope of his employment: Wilson v. Mo. Pac. R.
Co., 66 Mo. App. 388.

“ Carstens v. Burleigh (Wash.), 55 Pac. Rep. 221.

NATURE OF THE CONTRACT OF CARRIAGE. 469

The fact that there is a contract will not prevent an action
in tort being brought for a failure to carry and deliver safely.*+

111. Restriction of Liability—There are an indefinite num-
ber of ways in which a carrier of live-stock may restrict his
ordinary liability for losses. One notable qualification of this
principle, however, is that a carrier cannot restrict his liability
for injuries resulting from his own negligence or misconduct
or that of his employees.*® But where a contract of carriage
is made, agreeing on the valuation of animals carried with the
rate of freight based on condition that the carrier assumes
liability only to the extent of the agreed valuation, it is held in
many jurisdictions that, even where the loss is caused by
negligence, the contract will be upheld as a proper and law-
ful mode of securing a due proportion between the amount
for which the carrier is responsible and the freight he re-
ceives, and of protecting himself against extravagant and

“Clark v. St. Louis, K. C. & N. R. Co., 64 Mo. 440. And see Mo.,
K. & T. R. Co. v. Byrne (Ind. Ty.), 49 S. W. Rep. 41; San Antonio &
A. P. R. Co. v. Graves (Tex. Civ. App.), Ibid. 1103.

* N.Y. Cent. R. Co. v. Lockwood, 17 Wall. (U. S.) 357; Cent. R. &
Bkg. Co. v. Smitha, 85 Ala. 47; E. Tenn., V. & G. R. Co. v. Johnston,
75 id. 506; South & North Ala. R. Co. v. Henlein, 52 id. 606; Cent. R.
Co. v. Bryant, 73 Ga. 722; Il]. Cent. R. Co. v. Adams, 42 IIl. 474; Chic.
& A. R. Co. v. Grimes, 71 Ill. App. 397; Terre Haute & L. R. Co. v. Sher-
wood, 132 Ind. 129; Indianapolis, P. & C. R. Co. v. Allen, 31 id. 394; St.
Louis, K. C. & N. R. Co. v. Piper, 13 Kan. 505; St. Louis & S. F. R. Co.
v. Tribbey, 6 Kan. App. 467; Louisville, Cinc. & L. R. Co. v. Hedger,
9 Bush. (Ky.) 645; Sager v. Portsm., S. & P. & E. R. Co., 31 Me. 228;
Rice v. Kan. Pac. R. Co., 63 Mo. 314; Vaughn v. Wabash R. Co., 62 Mo.
App. 461; Potts v. Wabash, St. L. & P. R. Co., 17 id. 304; Chic., R. I.
& P. R. Co. v. Witty, 32 Neb. 275; Welsh v. Pittsb, F. W. & C. R. Co.,
10 O. St. 65; Cleveland, P. & A. R. Co. v. Curran, 19 id. 1; Pennsylvania
R. Co. v. Raiordon, 119 Pa. St. 577; Mo. Pac. R. Co. v. Cornwall, 70 Tex.
611; Chesapeake & O. R. Co. v. Amer. Exch. Bank, 92 Va. 495; Abrams
v. Milwaukee, L. S. & W. R. Co., 87 Wis. 485 [see Betts v. Farmers’
Loan & T. Co., 21 id. 80; 13 Am. L. Reg. N. S. 151 n.]; Grand Trunk
R. Co. v. Vogel, 11 Can. Sup. Ct. 612; Leuw v. Dudgeon, L. R. 3 C. P.
17n.; Ronan v. Midland R. Co., 14 L. R. Ir. 157; Tattersall v. Nat. Steam-
ship Co. Limd., 12 Q. B. D. 297.

470 CARRIERS OF ANIMALS.

fanciful valuations.4¢ Where, however, the limitation is
merely to restrict the carrier’s liability for negligence, and not
a bona fide valuation of the animal, it will not be upheld.
Thus, where a horse was worth $1,500, an agreement limit-
ing its value to $100 was not sustained.*7 On the other
hand, a limitation to $50 was held reasonable if based on a
reduction in the charge, though the real value of the animal
was from $600 to $800.48 Such stipulations are strictly con-
strued and, where the animal is described as a horse or a mule,
the plaintiff is not limited in the amount of his recovery for
damages to a jack.*9

In some States the doctrine that a carrier may relieve him-
self from liability for his negligence by an agreed valuation
of goods carried at a lower rate, does not obtain.°® The

“Hart v. Pa. R. Co., 112 U. S. 331; West. R. of Ala. v. Harwell, or
Ala. 340, 97 id. 341 [see Louisville & N. R. Co. v. Kelsey, 89 id. 287];
St. Louis, I. M. & S. R. Co. v. Weakly, 50 Ark. 397; Same v. Lesser,
46 id. 236; Hill v. Boston, H. T. & W. R. Co., 144 Mass. 284; Alair v.
North. Pac. R. Co., 53 Minn. 160 [see Moulton v. St. Paul, M. & M.
R. Co., 31 id. 85]; Harvey v. Terre Haute & I. R. Co., 74 Mo. 538; Doan
v. St. Louis, K. & N. R. Co., 38 Mo. App. 408; Duntley 7. Boston & M.
R. Co., 66 N. H. 263; Zimmer v. N. Y. Cent. & H. R. R. Co., 137 N. Y.
460; Johnstone v. Richm. & D. R. Co., 39 S. C. 55; Zouch v. Chesapeake
& O. R. Co., 36 W. Va. 524; Louisville & N. R. Co. v. Sowell, 90 Tenn.
17; Starnes v. Louisv. & N. R. Co., 91 id. 516; Robertson v7. Gd. Trunk
R. Co., 24 Can. Sup. Ct. 611, 24 Ont. 75, 21 Ont. App. 204; McCance 7.
London & North-Western R. Co., 3 H. & C. 343: Nevin v. Great South-
ern & W. R. Co., 30 L. R. Ir. 125; Great West. R. Co. v. McCarthy, 12
App. Cas. 218.

That the value must be fixed at a specified sum which must be in con-
sideration of a special reduced rate, see Kellerman v. Kansas City, St. J.
& C. B. R. Co., 136 Mo. 177.

* Fells v. St. Louis, K. & N. W. R. Co., 52 Fed. Rep. 903.

And see Alair v. North. Pac. R. Co., 53 Minn. 160; Moulton zv. St. Paul,
M. & M. R. Co., 31 id. 85; Abrams v. Milwaukee, L. S. & W. R. Co., 87
Wis. 485; Schwartzchild v. Nat. Steamship Co., 74 Fed. Rep. 257.

“St. Louis, I. M. & S. R. Co. v. Weakly, 50 Ark. 307.

“ Richardson v. Chic. & A. R. Co., 62 Mo. App. 1; Same v. Same (Mo.),
50 S. W. Rep. 782.

” Hart v. Chic. & N. R. Co., 69 Ia. 485; Kansas City, St. Jos. & C. B.
R. Co. v. Simpson, 30 Kan. 645; Ohio & M. R. Co. v. Tabor, 98 Ky. 503:

RESTRICTION OF LIABILITY. 471

doctrine is said, in an article on the subject, to be the law
in the Supreme Court of the United States and in nineteen
States, while the opposite doctrine obtains in twelve States
and the District of Columbia, “so that though the larger
number of jurisdictions are in favor of allowing the carrier
to contract away his liability for negligence, yet the law
cannot by any means be regarded as settled.” *!

In England it has been held that a carrier may limit his
liability even for his own negligence, by stipulating that the
shipper is to assume all the risks of the journey; >? and there
are decisions to the same effect in Canada.5* This has also
been held to be the law in New York: “In this State it is
well settled that a carrier may, by express contract, exempt
himself from liability for damages resulting from any degree
of negligence on the part of his servants, agents and em-
ployees.” °* Therefore, where the plaintiff assumed the risk
of injuries caused by heat and a number of the hogs died from
the result of the negligence of the defendant’s employees in
not watering them and cooling them by wetting, it was held
that as the carriers of live-stock were liable only for negli-
gence, in order to give effect to the stipulation it must be
construed as exempting the defendant from liability for
injuries by heat, the result of negligence.®®> But in a later
case, it was held that where the general words of exemption

Baughman v. Louisville, E. & St. L. R. Co., 94 id. 150; Louisville &
N. R. Co. v. Owen, 93 id. 201; Chic., St. L. & N. O. R. Co. v. Abels,
60 Miss. 1017; South. Pac. R. Co. v. Maddox, 75 Tex. 300.

And see Ashendon v. London, B. & S. C. R. Co., 5 Ex. D. 190; Dick-
son v. Great North. R. Co., 18 Q. B. D. 176.

514 Harv. L. Rev. 288.

® Austin v. Manchester, S. & L. R. Co., 10 C. B. 454; Shaw v. York
& N.M.R. Co., 13 Q. B. 347; Carr v. Lancashire & Y. R. Co., 7 Ex. 707;
Great North. R. Co. v. Morville, 21 L. J. Q. B. 319.

° Farr v. Gt. West. R. Co., 35 U. C. Q. B. 534; O’Rorke v. Gt. West.
R. Co., 23 id. 427.

“Cragin v. New York Cent. R. Co., 51 N. Y. 61. And see Wilson v.
N. Y. Cent. & H. R. R. Co., 27 Hun (N. Y.) 149, affirmed in 97 N. Y. 87.

°® Cragin v. New York Cent. R. Co., supra.

A472 CARRIERS OF ANIMALS.

do not include negligence, the carrier will not be released,
and, therefore, where he was released from liability for injuries
to sheep “caused by burning of hay, straw, or other material
used for feeding said animals, or otherwise,” and, owing to
the negligence of the carrier in not supplying the train with
proper appliances for putting out a fire, a number of animals
were burned to death, the defendant was held liable.°® The
weight of authority is, however, against this rule allowing
the carrier to limit its liability for negligence.*”

Under the Railway and Canal Traffic Act, 17 and 18 Vict.
c. 31, s. 7, conditions may be enforced that are judged to
be “just and reasonable” and the late English decisions de-
pend principally upon the meaning attached to this statutory
phrase. Some examples are accordingly cited here.

It is not unreasonable to limit the value of the animals to
a certain amount if they are carried at a cheaper rate under
which the shipper assumes all risks.°® And a condition that
the company should be free from all loss or damage to cattle
in loading or unloading from suffocation, or from being
trampled on, bruised, or otherwise injured in transit from
fire or from any other cause whatsoever was held just and
reasonable where the drover accompanied the cattle and saw
them put into a closed car which could only be opened by a
slide, the lid having afterwards been closed and some of the
cattle suffocated.®® But in a later case a condition that a
company should be free from all risk and responsibility for
loss or damage from loading or unloading or injury in
transit from any cause whatever, it being agreed that

“ Holsapple v. Rome, W. & O. R. Co., 86 N. Y. 275, where the case
last cited was distinguished on the ground that there the injury resulted
from the vitality and inherent nature of the animals for which the carrier
was not liable at the common law, while here it resulted from fire for
which the common-law liability would have attached.

* Hutchinson Carriers § 260.

* McCance v. London & North-Western R. Co., 7 H. & N. 477, 3 H.
& C. 343.

® Pardington v. South Wales R. Co., 1 H. & N. 392.

RESTRICTION OF LIABILITY. 473

the animals were to be carried at the owner’s risk and
that he was to see as to the fitness of the car before the
stock were placed therein and to make complaint, if there
were occasion, in writing, to the company’s officer before
the car left the station——was held to be unjust and un-
reasonable. “They provide for the complete exemption
of the company from all responsibility whatever.” ®° And
the fact that free passes are given to the persons in charge
of the stock does not make such a contract reasonable.*!
So, a contract exempting a railway company from liability
for loss of, or any damage or injury to, animals arising from
dangers and accidents of the sea, or of steam navigation, act
of God, queen’s enemy, jettison, barratry, collision, im-
proper, careless, or unskilful navigation, accidents con-
nected with machinery or boilers, or any default or negligence
of the master or any of the officers or crews of the company’s
vessels,—was held unreasonable.®? Also, a condition ex-
empting a company from all liability in respect of horses,
whether in loading or unloading or in transit and conveyance,
whilst in the company’s vehicles and on their premises, where
a low rate was charged; and a condition that the claim would
not be sustained unless the injury was stated and pointed out
by the company’s agent at the time of unloading.** Anda
condition is unreasonable that tends to exempt the carrier
from responsibility for negligence or default in the selection
of cattle on landing, on loading or unloading.** So, con-

® Gregory v. West Midland R. Co., 2 H. & C. 944, following McManus
v. Lancashire & Y. R. Co., 4 H. & N. 327, which reversed 2 id. 693.

® Rooth v. North-Eastern R. Co., L. R. 2 Ex. 173. And see Tex. &
Pac. R. Co. v. Avery (Tex. Civ. App.), 46 S. W. Rep. 897.

? Doolan v. Midland R. Co., 2 App. Cas. 792.

“@ Lloyd v. Waterford & L. R. Co., 15 Ir. C. L. R. 37.

A contract to carry at a reduced rate “at owner's risk and exempt from
all liability not occasioned by wilful misconduct” is valid: Knox v. Gr.
North. R. Co., [1896] 2 I. R. 632; Curran v. Midland Gr. West. R. Co.,
Ibid. 183.

™ McNally v. Lancashire & Y. R. Co., 8 L. R. Ir. 81.

474 CARRIERS OF ANIMALS.
ditions that cattle should be conveyed by sea at the owner's
sole risk and on land “where the charge of conveyance is
per wagon, as owner or his servant is required to superintend
loading of stock, and is allowed to place as many animals
in the wagon as he considers may be conveyed with safety,
the company will not be responsible for loss from overcrowd-
ing or injury done in loading and unloading, or in conse-
quence of one animal injuring another,’’—were held unjust
and unreasonable.** Anda contract is unreasonable whereby
a company claims immunity from any consequences arising
from over-carriage, detention or delay, although a low rate
is charged.** A condition that a company will not be liable
“in any case” for loss or damage to a horse or dog above
a certain specified value unless the value is declared, is not
just and reasonable as it is unconditional and would protect
the company even from the negligence or wilful misconduct
of its servants.67 But a company was held not liable for
the negligence of its servants, in a case where the shipper
had notice of a higher rate that he might have adopted.®®
And a condition that a company would not be liable for dogs
beyond a specified value, unless a higher value was declared
at the time of delivery and a percentage paid upon the excess
of the value so declared was held reasonable.*®

Returning to the American cases, we shall consider some

® Corrigan v. Great Northern and Manchester, S. & L. R. Cos., 6 L. R.
Ir. go.

“ Allday v. Great West. R. Co., 11 Jur. (N. S.) 12. And see Robinson.
v. Great West. R. Co., H. & R. 97.

* Ashendon v. London, B. & S. C. R. Co., 5 Ex. D. 190.

® Great West. R. Co. v. McCarthy, 12 App. Cas. 218.

° Welch v. Great Western R. Co. (Co. Ct. case), 106 L. T. 218. Granger,
J., said: “It seems almost impossible that a railway company could carry
on its business if it is bound to take dogs at their full value. There is
no end to the value of dogs. If a railway company was not protected
in this way, dogs of the value of £100 might be sent without notice to.

the company. In practice, as a matter of fact, people always run the
risk.”

RESTRICTION OF LIABILITY. 475

of the restrictions on the carrier’s liability that have been
passed upon in the courts. In Arkansas it was held that a
bill of lading containing fifteen sections limiting the carrier's
common-law liability, required to be accepted by the shipper
in advance of the shipment, was, under the circumstances, in-
valid as being unfair and unreasonable, and that an inter-
mediate carrier could claim no more rights under it than the
original carrier could have claimed.7° In Kansas, a statute
prohibits a stipulation limiting or changing the common-law
liability of the company, except by regulation or order of the
board of railroad commissioners.“ The carrier in considera-
tion of a reduced rate may stipulate for exemption from lia-
bility for overcrowding, suffocation, heat, fire, collision, run-
ning off the track, etc.7* But this will not exempt him, on
the general principle already discussed, where the injury is
due to his negligence. Therefore, when the shipper agreed to
ship an animal in a box-car if the doorway was slatted and
signed a special contract that, having examined the car, he
assumed all risks of suffocation and the animal was suffocated
in consequence of the car not being slatted, it was held that
suffocation for want of ventilation was not one of the ship-
per’s risks.7* And where the shipper assumes the risk of
fire, if the company permit straw or combustible materials
to be used on the car in such a way that they may be easily
ignited, this is negligence for which the shipper may re-

St. Louis, I. M. & S. R. Co. v. Spann, 57 Ark. 127.

1 See St. Louis & S. F. R. Co. v. Sherlock, 59 Kan. 23.

™ Georgia R. Co. v. Beatie, 66 Ga. 438; Same v. Spears, Ibid. 485;
Mitchell v. Georgia R. Co., 68 id. 644; Meyers v. Wabash, St. L. & P.
R. Co., 90 Mo. 98; Squires v. New York Cent. R. Co., 98 Mass. 239.

In 19 Cent, L. Jour. 165, it is said of Mitchell v. Ga. R. Co., supra: “It
would seem as the latter [#. ¢., the carrier] was the cause of the overcrowd-
ing, the case is of doubtful, if of any, authority.” And see Internat. & G.
N. R. Co. v. Parish (Tex. Civ. App.), 43 S. W. Rep. 1066.

® Kan, City, M. & B. R. Co. v. Holland 68 Miss. 351. And see Stur-
geon v. St. Louis, K. C. & N. R. Co., 65 Mo. 569; Leuw v. Dudgeon,
L. R.3 C. P. 17 n.

476 CARRIERS OF ANIMALS.

cover.** A common carrier cannot contract against failure
to provide suitable facilities for loading, unloading, water-
ing and feeding, as this is negligence.”®

There is nothing unreasonable or against public policy in
providing in a bill of lading for cattle shipped on deck that,
if necessary, they may be jettisoned for the safety of the ship,
without the ship-owner’s incurring any liability.7* But if
sound cattle are thrown overboard in a mild storm, without
sufficient reason, the vessel will be liable for the loss, and
a clause in the contract that the cattle are to be at the owner’s
risk, the carrier not to be accountable for accident or mortal-
ity even when occasioned by negligence or default, will not
exempt the latter from responsibility.77 Now, however, by
the act of February 13, 1893, if a vessel transporting merchan-
dise or property to or from any port in the United States is
seaworthy and properly equipped, neither the vessel nor her
owner or charterers shall be responsible for damages result-
ing from faults or errors in navigation or in the management
of the vessel.78

It was held in a Michigan case that where the owner took
all risks of “loading, unloading, conveyance,” etc., whether
from negligence, default or misconduct, this did not excuse
the company for not furnishing suitable cars.7® And a
special contract devolving on the owner the personal care
of the cattle with the risk of their escape or injury through
natural restiveness or viciousness, does not exonerate the
company from responsibility for failure to provide a safe
car.8° And though the owner assumes all risk except from

™ McFadden v. Mo. Pac. R. Co., 92 Mo. 343; Powell v. Pa. R. Co.,
32 Pa. St. 414.

™ Chesapeake & O. R. Co. v. Amer. Exch. Bank, 92 Va. 495.

*® The Enrique, 5 Hughes C. Ct. (U. S.) 275.

™ Compania de Navigation La Flecha v. Brauer, 168 U. S. 104.

“ Act of February 13, 1893, Ch. 105; 27 Stat. L. 44s.

” Hawkins v. Great Western R. Co., 17 Mich. 57, 18 id. 427. And see
Potts v. Wabash, St. L. & P. R. Co., 17 Mo. App. 304.

” Rhodes v. Louisv. & N. R. Co., 9 Bush (Ky.) 688.

RESTRICTION OF LIABILITY. 477

negligence, if he ships his horse in a box-car the doors of
which are fastened only from the outside, and is inside with
the horse, he has a right to expect the conductor will close
the door before starting: otherwise, the company will be lia-
ble for the consequences.§! A clause in a bill of lading of
cattle by which the shipper assumes all risk of the fittings, is
void as against public policy, in so far as it relates to the de-
fective condition of fittings through the negligence of em-
ployees, unknown to the shipper, as a result of which they
gave way in an ordinary gale and some of the cattle were
killed.®?

In New York the company may exempt itself from liability
by reason of the insecurity of the cars.83 And in an English
case where the company issued tickets for the transportation
of cattle, subject to the owner taking all risks and the com-
pany not being responsible for any injury, and the cattle were
frightened and escaped from the truck owing to its being de-
fectively constructed, it was held that the company were pro-
tected from liability by the terms of the ticket, as they
excluded the implied stipulation that the truck was fit for
the purpose for which it was to be used.®*

The reasonableness of the alternative of a reduced rate with
restricted liability or of a higher rate with ordinary liability
is for the court, not for the jury to decide. The stipulation
limiting liability for an animal is waived where the carrier
in adjusting damages resulting from its negligence agrees
to take the injured property and pay the shipper a larger
sum than that named in the limitation.8* But where the
owner is to take all risks, proof that the company had been in
the habit of conveying cattle for him without his presence on

* Lavoie v. Reg., 3 Can. Exch. 96.

® The Iowa, 50 Fed. Rep. 561.

*% Wilson v. N. Y. Cent. & H. R. R. Co., 97 N. Y. 87.

* Chippendale v. Lancashire & Y. R. Co., 21 L. J. Q. B. 22.
® Sheridan v. Midland G. W. R. Co., 24 L. R. Ir. 146.

*® Chic. & East. Ill. R. Co. v. Katzenbach, 118 Ind. 174.

A78 CARRIERS OF ANIMALS.

the train does not show a waiver of this part of the con-
tract.§7

A contract limiting the carrier’s liability signed under
duress after the animals are on board the train is not bind-
ing.88 Such a contract, however, in the absence of fraud or
misrepresentation, will bind the shipper though he has not
read it.8? And it was held in a Missouri case that a prior
verbal understanding cannot be proved against a written bill
of lading, in the absence of fraud or mistake, though it con-
tains conditions limiting the carrier’s liability and is presented
to him for signature after the stock are loaded and when he
has no time to examine it sufficiently before the departure of
the train.° But in Texas a verbal contract has been upheld
under such circumstances, the subsequent written contract
being held to be without consideration.®*! And where a
shipper pays freight charges and receives a paper that he
thinks is a receipt but which contains stipulations exempting
the carrier from liability for a failure to carry promptly, the
shipper may show by parol a contract to carry with special
despatch.°?

* Chic. & N. R. Co. v. Van Dresar, 22 Wis. 511.

* Atchison, T. & S. F. R. Co. v. Dill, 48 Kan. 210; Kan. Pac. R. Co.
v. Reynolds, 17 id. 251; Atchison, T. & S. F. R. Co. v. Mason, 4 Kan. App.
391; German v. Chic. & N. R. Co., 38 Ia. 127; Wabash R. Co. v. Lannum,
71 Il. App. 84; Mo., K. & T. R. Co. v. Carter, 9 Tex. Civ. App. 677; Gulf,
C.& S. F. R. Co. v. Wood (Tex. Civ. App.), 30 S. W. Rep. 715; Tex.
& Pac. R. Co. v. Avery (Tex. Civ. App.), 46 id. 897.

' As to when the restriction goes into effect, see Hodgman v. West Mid-
land R. Co., 5 B. & S. 173, 35 L. J. Q. B. 85.

And see, as to the acceptance of a drover’s pass, Hastings v. N. Y.,
O. & W. R. Co., 6 N. Y. Suppt. 836.

* West. Ry. of Ala. v. Harwell, 91 Ala. 340; Stewart v. Cleveland, C.,
C. & St. L. R. Co., 21 Ind. App. 218; O’Rorke v. Gt. West. R. Co., 23
U. C. Q. B. 427.

“St. Louis, K. C. & N. R. Co. v. Cleary, 77 Mo. 634.

Where the defendant relies on the written contract, he should be re-
quired, on motion, to file it: Caldwell v. Felton (Ky.), 51 S. W. Rep. 575.

“San Antonio & A. P. R. Co. v. Wright (Tex. Civ. App.), 49 S. W.
Rep. 147.

”’ King v. Woodbridge, 34 Vt. 56s.

RESTRICTION OF LIABILITY. 479

With regard to the burden of proof it has been said: ‘The
uniform holding of the Supreme Court of Illinois has been
that the carrier must show affirmatively that the restrictions
of liability claimed by it were in fact known and assented to
by the shipper. This seems, however, to be contrary to the
weight of American and English decisions which hold that
the fair and honest acceptance of a bill of lading, without dis-
sent, raises a presumption that all limitations contained
therein were brought to the knowledge of the shipper and
agreed to by him.” %

112. Receiving; Loading; Unloading; Delivery —The respon-
sibility of the carrier extends from the time the animals are
received till the cars are unloaded.®* This is true even where
a statute provides that the liability shall begin at the time of
signing the bill of lading.®° And where a contract provided
that the company should not be liable before the car was
loaded and the door fastened, they were, nevertheless, held
liable where the lambs drank salt water, negligently allowed
to flow in the stock-yard, before they were put on the car,
though they did not die till they were in the possession of a
connecting carrier.°* The liability begins with the placing
of the animal in a cattle-pen preparatory to shipment, by
order of the company’s agent, and the fact that the shipper
saw the pens, which were weak and rotten, does not prevent
recovery.°* And where the injury was received in the pens
of a connecting carrier after the animals had been tendered to

® 38 Cent. L. Jour. 97, citing 3 Wood Railways 1577-78, n. 2, Hutchin-
son Carriers, §§ 238-9, etc.

* Moffat v. Great Western R. Co., 15 L. T. N. S. 630.

Where a horse was injured while the defendant’s porter was trying
to put it into a box at the railway station, it was held that carriage had
commenced: Knox v. Gr. North. R. Co., [1896] 2 I. R. 632.

Internat. & G. N. R. Co. v. Dimmit County Pasture Co., 5 Tex. Civ.
App. 186.

*® Norfolk & W. R. Co. v. Harman (Va.), 22 S. E. Rep. 490.

7 Mason v. Mo. Pac. R. Co., 25 Mo. App. 473. And see Galveston,

480 CARRIERS OF ANIMALS.

the defendant company but before they were loaded on their
cars, the latter were held liable in the absence of a legal ex-
cuse for not receiving them at the time of tender.*®

The carrier is obliged to provide facilities for receiving
stock, such as enclosed yards.°® It is also bound to furnish
proper places and appliances for loading and unloading the
animals. Thus the delivery of a horse at a chute designated
by the company’s agent for use in loading the car is sufficient
to charge the company if the chute is rotten, and a subse-
quent contract of shipment exempting the defendant from
liability for loss by loading, etc., does not relieve the latter
from liability and is inadmissible in evidence.1°° And the
company is liable for an injury resulting from an accumula-
tion of ice on the floor of the chute after the lapse of suffi-
cient time since the storm to remove it in, and the shipper is
not guilty of contributory negligence by reason of his failure
to put ashes or sand on such floor.1°! Where a horse is in-
jured by reason of a defect in the platform used for loading,
the company if under any circumstances excusable, are not
so unless they used full diligence to discover any defect before
exposing the animal to the risk of injury.1°?

Where the company are required by statute to erect suit-
able freight buildings, they cannot avoid liability by showing

H. & S. A. R. Co. uv. Jackson (Tex. Civ. App.), 37 S. W. Rep. 255; Mo.,
K. & T. R. Co. v. Byrne (Ind. Ty.), 49 id. 41.

Where cattle are frightened by a train and escape through a gate of the
stock-pen which is negligently out of repair, this negligence is the prox-
imate cause of a resulting injury to the cattle, but not to the shipper
personally: Tex. & Pac. R. Co. v. Bigham, 90 Tex. 223.

* Gulf, C. & S. F. R. Co. v. Godair, 3 Tex. Civ. App. 514.

* Covington Stock-Yards Co. v. Keith, 139 U. S. 128,

“™ McCullough v. Wabash West. R. Co., 34 Mo. App. 23. And see
Rooth v. North-Eastern R. Co., L. R. 2 Ex. 173.

That failure to have a chute at a station is not necessarily negligence,
see Regan v. Adams Exp. Co., 49 La. Ann. 1579.

™ Kincaid v. Kan. City, C. & S. R. Co., 62 Mo. App. 365. And see
White v. Cine, N. O. & T. P. R. Co., 89 Ky. 478.

™E. Tenn., V. & G. R. Co. v. Herrman, 92 Ga. 384.

RECEIVING ; LOADING ; UNLOADING ; DELIVERY. 481

that their pens for the shipment of cattle are so badly kept
as to make it contributory negligence for the shipper to use
them.'°? Where sufficient stock pens are not provided for
loading the cattle within a reasonable time, the company are
liable for loss by shrinkage resulting therefrom.1°* Nor,
where pigs are injured in the company’s pens by lime-wash
negligently put on the pens to disinfect them, is it any defence
that they were only carrying out statutory directions for the
prevention of disease.1°

A railway company is not justified in making the stock-
yards of a certain company its exclusive live-stock depot,
when access thereto must be purchased, there being other
stock-yards in the neighborhood where the public may be
suitably served at lower rates.1°® It may, however, by post-
ing schedules, as required by the interstate commerce law,
make a charge for freight to a city and a separate terminal
charge of a fixed sum per car for delivery at stock-yards off
its line.1°7 It is not an unreasonable discrimination in favor
of shippers of dead freight for a company to refuse to build
a spur track for the shipment of live-stock as in the former
case, as the receipt of dead freight is less burdensome.*°*

The carrier must provide a safe platform for unloading,’
and is liable for not furnishing the usual means.*!° Thus, a

18 Gulf, C. & S. F. R. Co. v. Trawick, 80 Tex. 270.

4 Mo., K. & T. R. Co. v. Woods (Tex. Civ. App.), 31 S. W. Rep. 237.

1 Shaw v. Great S. & W. R. Co., 8 L. R. Ir. 10.

% Keith v. Ky. Cent. R. Co., 1 Interst. Com. Rep. (Co-op. ed.) 601.
And see Covington Stock-Yards Co. v. Keith, 139 U. S. 128.

0 Walker v. Keenan, 73 Fed. Rep. 755, distinguishing Covington Stock-
Yards Co. v. Keith, supra. The business of a stock-yards company is
not “interstate commerce” and exempt from State regulation, though
the yards are located in two States: Cotting v. Kansas City Stock-Yards
Co., 79 Fed. Rep. 679.

28 Butchers & D. Stock-Yards Co. v. Louisville & N. R. Co., 67 Fed.
Rep. 35.

19 Owen v. Louisville & N. R. Co., 87 Ky. 626.

4° Chesapeake & O. R. Co. v. Amer. Exch. Bank, 92 Va. 495. And see
Mexican Nat. R. Co. v. Savage (Tex. Civ. App.), 41 S. W. Rep. 663.

Where horses are unloaded en route and escape from the pen in which

31

482 CARRIERS OF ANIMALS.

ferryman is liable for not providing proper means for landing
a horse from his boat, though the animal is under its owner’s
charge.!! But a company need not provide fences or guards
at the station where the animals are landed between the tracks
and the station-yard so as to prevent them from straying on
to the former.1'?. Where an animal was kept on a plank floor
for some days after reaching its destination, in an action for
negligence in so doing it was held error to exclude evidence
that it was customary to do it in that place.1!*

Where the shipper furnishes and loads his own car, the
carrier is not liable for negligent loading, though it was the
duty of its officers to see that the loading was properly
done.*4# And where the agent of the owner of race-horses in-
sisted upon loading the car as he thought best, owing to diffi-
culty in the loading, the company were held not responsible
for a resulting injury.° Where cattle shipped upon an
ocean steamer in hot weather were by the shipper’s act placed
between decks and they grew sick and died, it was held that
no negligence was to be presumed in the carrier.11¢ Where
the shipper had notice that the cars were being overloaded,
he cannot recover damages therefor, though he had con-
tracted for a sufficient number of cars to hold the animals that
were being loaded."!* So, a shipper who asks for an addi-
tional car on the day of shipment and crowds his cattle into

the carrier placed them, the latter is liable as an insurer without regard
to negligence: Tex. & Pac. R. Co. v. Turner (Tex. Civ, App.), 37 S. W.
Rep. 643.

™ Willoughby v. Horridge, 12 C. B. 742.

™ Roberts v. Great Western R. Co., 4 C. B. N.S. 506.

As to negligence in turning unloaded stock on an unprotected lot in cold
weather, see Cooper v. Raleigh & G. R. Co. (Ga.), 30 S. E. Rep. 731.

™ Moses v. Port Townsend S. R. Co., 5 Wash. 505.

™ Fordyce v. McFlynn, 56 Ark, 424. And see Mo. Pac. R. Co. v.
Edwards, 78 Tex. 307; East Tenn. & G. R. Co. v. Whittle, 27 Ga. 535.

™ Bowie v. B. & O. R. Co., 1 MacArth. (D. C.) 94.

™° The Powhatan, 21 Blatch. C. Ct. (U. S.) 8
Pa 7 Worth & D. C. R. Co. v. Word (Tex. Civ. App.), 32 S. W.

ep. 14.

RECEIVING ; LOADING } UNLOADING } DELIVERY. 483

a ciose box car instead of waiting for a day when a stock car
could have been had, cannot recover for resulting injuries.!18

Where the company receives an overloaded car of animals,
it assumes the responsibility for the same.1!® Thus, where a
connecting carrier receives cars overpacked with hogs its
duty is to demand that such manner of loading be changed
and new cars added, or to do so itself, and, if the hogs are
suffocated when they arrive at their destination, that carrier,
being the last one, is responsible therefor and the burden is
on it to show whether the suffocation was before or after it
had received the hogs.??°

A carrier under a contract that the animals are taken at
the owner’s risk “during course of transportation, loading
and unloading” is bound to unload, though at the owner’s
risk, irrespective of local usage or a general regulation of the
company requiring the consignee to unload.1*4_ But where
the shipper assumed all the risks and was to load and unload
with the carrier's assistance and, a snow-storm occurring, the
cattle were in the cars for twenty-four hours in consequence
of the carrier’s refusal to build a platform for unloading, so
that some of them were injured and died, it was held that the
carrier’s duty was simply to transport reasonably, that the
clause as to unloading referred only to the end of the journey
and that the carrier was not obliged to unload before, it not
being burdened with the care of the animals during the
transit.122. Where the shipper asked to have the cattle placed
where they might be unloaded on account of a flood and the
request was not granted, the question of negligence was held
to be under the circumstances, for the jury.1?* Where the
plaintiffs had the right to have the car left at a station if the

48 Wustdn Bros. v. Wabash R. Co., 63 Mo. App. 671.
1 Kinnick v. Chic., R. I. & P. R. Co., 69 Ia. 665.
1 Paramore v. Western R. Co., 53 Ga. 383.

™ Benson v. Gray, 154 Mass. 301.

1 Denn v. Buffalo & E. R. Co., 49 N. Y. 204.

%8 Bills v, N. Y. Cent. R. Co., 84 N. Y. 5.

484 CARRIERS OF ANIMALS.

condition of the hogs required it and the animals were injured
by the refusal of the conductor to do so, an instruction to find
for the defendant if the car reached its destination in a reason-
able time was held erroneous.1** If horses are not unloaded
at the time agreed on by the company’s freight agent, the fact
that the conductor before starting stated to the owner that he
did not think they could be unloaded at that time does not
relieve the company from liability.1?°

Where the company transfer cattle to the car of another
line without giving the shipper an opportunity of attending
to the loading, they are liable for not furnishing sufficient bed-
ding and partitions whereby injury results.12° Cattle may
be unloaded by a connecting carrier, if there is no provision
in the contract to the contrary, and the men in charge of
them have not the right to decide when this is to be done. If
after they are unloaded they are seized to pay a fine imposed
upon the owner, the carrier is not liable therefor as the dam-
ages are too remote.??”__ If the shipper unloads the stock be-
tween the points of shipment named in the bill of lading and
takes it out of the possession of the carrier for the purpose of
feeding it, this does not render it subject to seizure by his
creditors as against a transferee of the bill of lading.!?8
Where cattle when they are unloaded to be fed are lost by
being mingled with other cattle and afterwards loaded in the
wrong car, the company is liable, its agents having exclusive
charge of them during the unloading and loading.129

The carrier must deliver the animals to the person desig-
nated by the terms of shipment or to his order at the place
of destination, and is liable if they are delivered to one not en-
titled to receive them.'®° It need not, however, hunt up the

™ Johnson v. Ala. & V. R. Co., 69 Miss. QI.

™ Corbett v. Chic., St. P., M.& O. R. Co., 86 Wis. 82.
¥° Ala. G. S. R. Co. v. Thomas, 89 Ala. 294.

™ McAlister v. Chic., R. I. & P. R. Co., 74 Mo. 351.
Lewis v. Springville Bkg. Co., 166 Til. 3II.

™ Norfolk & W. R. Co. v. Sutherland, 89 Va. 703.

*° North Pa. R. Co. v. Com. Nat. Bk., 123 U. S. 727.

RECEIVING ; LOADING ; UNLOADING ; DELIVERY. 485

consignee: its duty is done when it has unloaded the cattle,
stored them in a proper place, cared for them and is ready
to deliver them on demand. It need not give the consignee
notice.*? And where game unlawfully killed is delivered
to a carrier for shipment by one not entitled to its possession,
the carrier, on delivering the game to the State on demand,
is not bound to give notice to the consignor.!?? Where a
passenger, without special notice of the company’s regula-
tion that “live animals are allowed as baggagemen’s per-
quisites” committed his dog to the care of the baggage-
master and paid him for its transportation, the company was
held liable for the loss of the dog by the baggage-master’s
delivering it to the wrong person.!83 Where one sent a
horse by rail consigned to himself at a station on the line and
paid the fare and, there being no one to receive it, the com-
pany placed it with a livery-stable keeper, it was held that
the company could recover from the owner the reasonable
charges of the stable keeper.1?+ Where the animals are killed
during the journey by an accident for which the carrier is not
responsible, he is not required to deliver their carcasses even
though they have a market value, the owner having refused
to take charge of them.1*®

The shipper of stock to a particular place may withdraw
them at any point on the route, on payment of freight to the
destination.1*6

A shipper contracting to load, unload and feed the animals

Chic. & East. Ill. R. Co. v. Pratt, 13 Ill. App. 477. And see Shep-
herd v. Bristol & E. R. Co., L. R. 3 Ex. 189; Wise v. Great West. R.
Co. 1 H. & N. 63.

#2 Thomas v. Northern Pac. Exp. Co. (Minn.), 75 N. W. Rep. 1120.

™ Cantling v. Hannibal & St. J. R. Co., 54 Mo. 385.

4 Great Northern R. Co. v. Swaffield, 9 L. R. Ex. 132.

*° Lee v. Marsh, 43 Barb. (N. Y.) 102.

28° Sharp v. Clark, 13 Utah 510.

That a purchasing agent of the consignee has no power to change the
destination of cattle while they are in transit, see Lake Shore & M. S. R.
Co. v. Nat. Live-Stock Bk., 178 III. 506.

486 CARRIERS OF ANIMALS.

at his own expense, who is guilty of any negligence or wrong
act therein, cannot recover against the carrier: as if he neg-
ligently puts hay into the car which takes fire.1*7 But where
he negligently leaves a horse untied, if the carrier moves the
car while the animal is loose, it is still liable if the injury was
one likely to result from the circumstances.1*8 In another
case where the carrier was not to be liable for loss “by jump-
ing from cars” and the plaintiff put the horse in the car
and tied it near a door which he left open, it was held that
though it was, perhaps, negligence in the carrier to move the
car with the door open, yet the plaintiff was guilty of contrib-
utory negligence and could not recover.'® Where the injury
to an animal under the control of the shipper’s agent results
from the latter’s act, as by his entering the car with a lantern
and its taking fire, the carrier is not liable, irrespective of the
question of negligence on the agent’s part.1*°

The shipper should load so that the train will not be un-
necessarily delayed.t#4, Though he may contract to load, un-
load and reload at his own risk, this is no defence where the
unloading and loading of cars at feeding stations were act-
ually assumed by the carrier’s employees.’ And where the
agent at a transfer station who has authority to keep the
cattle in the original cars or to transfer them, tells the shipper
there will be no change, this relieves the latter of his duty by
bill of lading.1#?

In order to avoid the injurious consequences of a long
journey, it is provided in § 4386 of the Revised Statutes of the
United States that in interstate shipments of live-stock any

*T Pratt v. Ogdensburg & L. C. R. Co., 102 Mass. 557.

*® Doan v. St. Louis, K. & N. R. Co., 38 Mo. App. 408.

*° Hutchinson v. Chic. St. P, M. & O. R., 37 Minn. 524. And
see Newby v. Chic., R. I. & P. R. Co., 19 Mo. App. 301.

“© Hart v. Chic. & N. R. Co., 69 Ia. 485.

™ Louisville, N. A. & C. R. Co. v. Godman, 104 Ind. 4o0.

Mo. Pac. R. Co. v. Kingsbury (Tex. Civ. App.), 25 S. W. Rep. 322.

See Fordyce v. McFlynn, 56 Ark. 424.

*8 Ala. G. S. R. Co. v. Thomas, 89 Ala. 294.

RECEIVING ; LOADING; UNLOADING ; DELIVERY. 487

company that shall keep the animals in the cars for more than
twenty-eight consecutive hours without unloading them for
at least five hours for rest, food, etc., shall be liable to a pen-
alty, unless they are prevented by storm or other accidental
causes or unless the animals are carried in a car where they
can and do have opportunity to rest, etc. This statute
applies only to interstate shipments, not to shipments be-
tween two points in the same State.4+ It applies where a
part of the time of confinement is outside of the State, and it
is immaterial that the owner is in charge of the stock.1*° The
carrier is liable not only for the statutory penalty but for
damages sustained by the owner of the animals.‘4® The re-
ceiver of a company, however, incurs no liability.147 An ac-
cident to a train due to negligence does not excuse non-com-
pliance with the statute.1*® Nor does the fact that the stock-
yards were on fire when the train arrived :149 “other accidental
catises’” means other unavoidable accidental causes and ex-
cludes the idea of negligence.15° The statute was not, how-
ever, intended to fix the period during which the company
could without liability hold the cattle without unloading: the
question of negligence is still left as at the common law."*?

“U.S. v. E. Tenn., V. & G. R. Co., 13 Fed. Rep. 642.

As to when a stock-yards company may be held to be engaged in inter-
state commerce and to be an illegal monopoly, see U. S. v. Hopkins,
82 Fed. Rep. 529.

“48 Hendrick v. Boston & A. R. Co., 170 Mass. 44, where it was also
held that the statute was not superseded by an order of the board of cattle
commissioners forbidding a railroad company’s unloading any neat cattle
for any purpose whatever, except upon written permission from the board,
at any place except certain designated quarantine stations.

“8 Nashville, C. & St. L. R. Co. v. Heggie, 86 Ga. 210; Hale v. Mo.
Pac. R. Co., 36 Neb. 266.

MTT, S. v. Harris, 85 Fed. Rep. 533.

“8 Newport News & M. Val. Co. v. U. S., 61 Fed. Rep. 488. And
Brockway v. Amer. Exp. Co., 168 Mass. 257.

4 Nashville, C. & St. L. R. Co. v. Heggie, supra.

8° Chesapeake & O. R. Co. v. Amer. Exch. Bank, 92 Va. 495.

™ Mo. Pac. R. Co. v. Ivy, 79 Tex. 444. And see Galveston, H. & *.
A. R. Co. v. Warnken, 12 Tex. Civ. App. 645.

488 CARRIERS OF ANIMALS.

Nor can the statute be so construed as to make the unlaw-
ful confinement of each animal a separate offense and thus
multiply the penalty by the whole number of animals.'*? The
words “cattle, sheep, swine or other animals” include horses,
mules, etc., as well as animals intended for food.*°*

Where the contract relieves the defendant of all liability be-
yond the line of its own road, this does not permit it to escape
the consequences of its failure to comply with the shipper’s
request to unload the cattle after they had been kept in the
cars for more than twenty-eight hours, though after the con-
necting carrier had refused to take the cars; and the fact that
the shipper has a remedy against the connecting carrier for
refusing to accept and unload the cattle is immaterial.?°*

113. Mode of Transportation.—It is the duty of the carrier to
furnish safe and suitable cars for the transportation of live-
stock; 155 and if their method of transportation is unsafe, the
fact that it was usual with them is no defence.'°® Nor is the
fact that the animal escaped beyond the terminus of the road,
though there is a special contract limiting the company’s lia-
bility to that point.157 And the mere presence of the owner,
who has no power over the train, does not lessen their liability
for furnishing defective cars.1°§ Where the shipper assented
to the cars chosen, after notice of their condition and proper
observation, the carrier was held in a Michigan case not to be

U.S. uv. Boston & A. R. Co., 15 Fed. Rep. 209.

*8 Chesapeake & O. R. Co. v. Amer. Exch. Bank, supra.

™ Tex. & Pac. R. Co. v. Birchfield (Tex. Civ. App.), 46 S. W. Rep. goo.

** Ohio & M. R. Co. v. Tabor, 98 Ky. 503; McDaniel v. Chic. & N. R.
Co., 24 Ia. 412; St. Louis & S. R. Co. v. Dorman, 72 Ill. 504; Union Pac.
R. Co. v. Rainey, 19 Colo. 225.

*° Leonard v. Fitchburg R. Co., 143 Mass. 307.

Where cattle-pens on a steamship arriving from a foreign port were
larger than the size prescribed by the Board of Agriculture, a fine was
inflicted by a police court, though the regulations of the foreign govern-
ment provided for a larger space: 103 L. T. 582.

*" Indianapolis, B. & W. R. Co. v. Strain, 81 Ill. 504.

** Peters v. New Orleans, J. & G. N. R. Co., 16 La. Ann. 222.

MODE OF TRANSPORTATION, 489

liable for defects.1°° And where the owner selects the cars
himself the carrier is not liable unless the defects are not ap-
parent and not pointed out.1®° So, where he has assumed
the duty of loading and has loaded the car without objecting
that it was not bedded with straw or other material, he cannot
hold the company for the consequences of this failure.1%+
Nor, under similar circumstances, can he testify that some
other kind of car was better suited to the purpose.1® And
where his agent, knowing of the defects, had tried to remedy
them, refusing the offer of a better car at a higher rate, it was
competent for the jury to find that the plaintiff had assumed
the risks.6

In other cases a more rigid rule is laid down. Thus, it has
been held that the fact that the shipper accepted a defective
car knowingly does not exempt the carrier from liability un-
less the shipper distinctly assumes the risk.1®* And the
shipper is not estopped from complaining of an injury owing
to the lack of trapdoors in the roof of a car, as required by
statute, by the fact that he knew of the deficiency at the time
of loading.1®° And a stipulation in the bill of lading that
the shipper has examined the car and accepted it as “suitable
and sufficient” for the purposes of his shipment will not pro-
tect the carrier from loss owing to defects,1®* though the bur-
den will be on the shipper to disprove the truth of his
recital.167

* Great Western R. Co. v. Hawkins, 18 Mich. 427. And see Nevin
v. Great South. & West. R. Co., 30 L. R. Ir. 125.

*° Harris v. North Ind. R. Co., 20 N. Y. 232. And see Union Pac.
R. Co. v. Rainey, 19 Colo. 225; Leonard v. Whitcomb, 95 Wis. 646.

11%, Tenn., V. & G. R. Co. v. Johnston, 75 Ala. 596. And see Betts
v. Farmers’ Loan & T. Co., 21 Wis. 80, cited infra.

* Chic. & N. R. Co. v. Van Dresar, 22 Wis. 511.

*®8 Coupland v. Housatonic R. Co., 61 Conn. 531.

™ Pratt v. Ogdensburg & L. C. R. Co., 102 Mass. 557.

*6 Paddock v. Mo. Pac. R. Co., 60 Mo. App. 328.

* Louisville & N. R. Co. v. Dies, 91 Tenn. 177.

*T West. R. Co. of Ala. v. Harwell, 91 Ala. 340.

490 CARRIERS OF ANIMALS.

The carrier is liable though the car accepted by it belongs
to another company'® or to the owner of the animals. But
where hogs were shipped in the owner’s care, the company
not to be liable for loss from jumping out except by collision
or running off the track, and the owner refused to use the
carrier’s cars but used those of another company, the former
were held not liable for the escape of hogs by reason of a de-
fective door-fastening of which they did not know.*"°

A car for the transportation of horses and mules which is
liable to be broken by slight kicks is not reasonably safe.1™
But the carrier is not bound to provide cars strong enough to
transport safely animals that are vicious and unmanageable
but only such as are ordinarily unruly.17? Where without in-
spection a horse was put in a car one door of which could not
be closed, the company was held guilty of gross negligence.178
But where the owner of the animals found the car door in a
weak and unsafe condition but did not inform the company’s
agent, it was held that the company was not liable."

A statute requiring a company to furnish double-decked
cars for carrying sheep, when requested, has been held to be
constitutional..7° A statute requiring a company to furnish
suitable cars, does not authorize a penalty for failure to fur-

*® Louisville & N. R. Co. v. Dies, supra; Wallingford v. Columbia &
G. R. Co., 26 S. C. 258; Combe v. London & S. W. R. Co., a1 LT.
N. S. 613.

* Fordyce v. McFlynn, 56 Ark. 424.

*° Til. Cent. R. Co. v. Hall, 58 Ill. 4oo.

™ Betts v. Chic., R. I. & P. R. Co., 92 Ia. 343. And see Smith v. New
Haven & N. R. Co., 12 Allen (Mass.) 531.

With regard to mules it was said in Ill. Cent. R. Co. v. Teams, 75 Miss.
147: “Common observation and the experience of mankind at all familiar
with the capacity for gymnastics on the part of this hybrid warn us not
to place reliance in mere opinions of witnesses on this point [i. e., their
being overcrowded].”

™ Selby v. Wilmington & W. R. Co., 113 N. C. 588.

* Root v. N. Y. & N. E. R. Co., 83 Hun (N. Y.) 111.

™ Betts v. Farmers’ Loan & T. Co., 21 Wis. 80.

*® Emerson v. St. L. & H. R. Co., 111 Mo. 161.

MODE OF TRANSPORTATION. 491

nish “‘stable stock cars’: statutes of this kind are to be
strictly construed.1"¢

If a break in the floor of the car would naturally cause the
injuries, the carrier must show that they were not in fact so
caused.?7"

A shipper is not entitled to have his cattle carried in cars
of a special kind selected by him belonging to a third person
and superior to the ordinary cattle cars, by reason of the fact
that the carrier transports some cattle in other cars having
some of the improvements of the former, available to all
shippers equally, which are furnished by another party under
a special contract and unlike those that the shipper asks for,
can be used for carrying coal also. Such a refusal on the part
of the carrier is not an unjust discrimination.178

A contract for the shipment of cattle implies that there
shall be sufficient ventilation and, if insurance cannot be ef-
fected upon the cattle placed in the allotted space without ad-
ditional ventilation which the master refuses to provide, the
shipper is justified in declining to ship more cattle than can
be insured and the ship is liable for the failure to transport the
animals thus shut out.179 But the mere fact that a number
of cattle had died on a voyage from no apparent cause is not
sufficient proof of the want of ventilation, where inspectors
and experts had declared it to be sufficient and before and
after the voyage the vessel had carried cattle with little
mortality.t&

A carrier is not responsible for cattle being injured by, or
dying from heat unless through its negligence or misfeas-
ance; 181 especially where the real cause of death is the want

17% Austin & N. R. Co. v. Slator, 7 Tex. Civ. App. 344.

7 Ohio & M. R. Co. v. Tabor, 98 Ky. 503.

™ Morris v. Del., L. & W. R. Co., 2 Intérst. Com. Rep. (Co-op.ed.) 617.

1° The Alvah, 45 U. S. App. 210. But the fact that a single underwriter
refused is not sufficient proof of the insufficiency of ventilation: Ibid.

The Mondego, 56 Fed. Rep. 268.

#1 Maslin v. Balt. & O. R. Co., 14 W. Va. 180.

492 CARRIERS OF ANIMALS.

of inherent vitality in the animals.18? But where live hogs
are shipped and by reason of their crowded and unnatural
condition they become heated and the conductor, though
notified, fails to apply water to them, the company is liable.“
And where a company that should have delivered hogs to a
connecting carrier neglected to give notice that they had ar-
rived and kept them for three hours at the point of arrival
whereby they were killed by heat, the company was held
guilty of gross negligence.1**

Where cattle-fittings in a ship were old and insufficiently
constructed and in a mild storm the cattle were injured by a
lurch of the vessel, this was held to be negligence in the car-
rier185 But where the respondents show that the storm was
an extraordinary one and also the character of their damages
and that of other ships having cattle, the burden is on the
libellant to prove that the losses were occasioned by a want
of due care in the fittings.18* Where a horse escapes from its
fastenings, this is prima facie negligence in the carrier.**?
And where a greyhound, with a cord about its neck but no
collar, was delivered to a carrier who gave a receipt and the
dog was afterwards lost, it was held that the carrier could not
set up as a defence that the animal was not properly secured
when delivered to him.188§ But where a dog, fastened in the
ordinary way by a strap and collar, slipped these while being
moved to another train and running upon the track was

Chic., R. I. & P. R. Co. v. Harmon, 12 Ill. App. 54.

*S TI. Cent. R. Co. v. Adams, 42 Ill. 474. And see Toledo, W. & W.
R. Co. v. Thompson, 71 id. 434.

™ Rock Island & P. R. Co. v. Potter, 36 Ill. App. 590.

** The Brantford City, 29 Fed. Rep. 373.

* The J. C. Stevenson, 17 Fed. Rep. 540.

*? Porterfield v. Humphreys, 8 Humph. (Tenn.) 497.

*° Stuart v. Crawley, 2 Stark. 323. And see, to the same effect, Sloan
v. Great Northern R. Co., 33 Ir. L. T. Rep. 79, where the company by
its conduct was held to have waived a by-law that it would not be respon-
sible for a dog delivered to it unless the animal was secured with a proper
chain, collar and muzzle.

MODE OF TRANSPORTATION, 493

killed, it was held that the fastening it by means furnished
by the owner which appeared sufficient was no evidence of
the company’s negligence.*®® And where cattle died in tran-
sit by reason of the shipper’s negligence in failing to provide
sufficient bedding and ropes with which to tie them in the
stalls provided by the ship, a libel against the ship will be
dismissed.1*°

Injuries caused by an excessive amount of jolting, shunt-
ing, abrupt starting, etc., which might have been avoided by
due care will also render the carrier liable.1? |

An order in Council requiring cattle-carrying vessels to be
disinfected after landing and before taking on a new cargo
was held to require disinfecting even when those parts which
had not been used for carrying cattle were used for the new
cargo.’9? Where a company furnishes cars without cleaning
them as required by statute, and the shipper throws out the
hay containing offal, the company is liable to the owner of
cattle which eat it while grazing and die of fever.1%

A company is not relieved of the duty of exercising proper
care in attending to the animals on its trains by reason of the
rush of business;!°4 nor is this a proper excuse for not fur-

%” Richardson v. N. E. R. Co., L. R. 7 C. P. 75, distinguishing Stuart
v. Crawley, supra, as there (though not here) the defendant was a com-
mon carrier, and his servant had the means of seeing the dog was insuffh-
ciently secured.

As to the liability of the company for damage done by an escaped dog,
see Gray v. North British R. Co., 18 Rettie (Sc. Ct. Sess.) 76.

2 The Oranmore, 92 Fed. Rep. 396.

™ Gulf, C. & S. F. R. Co. v. Ellison, 70 Tex. 491; Schaeffer v. P. &
R. R. Co., 168 Pa. St. 209; Pavitt v. Leh. Val. R. Co., 153 id. 302; New-
man v. Pa. R. Co., 33 N. Y. App. Div. 171; Atchison, T. & S. F. R. Co.
v. Ditmars, 3 Kan. App. 459; Ainsby v. Great Northern R. Co., 8 T. L.
R. 148. See Smith v. Midland R. Co., 57 L. T. N.S. 813.

1 Ismay v. Blake, 66 L. T. N.S. 530.

And see, as to negligence in disinfecting, Tattersall v. Nat. Steamship
Co. Limd., 12 Q. B. D. 297.

2 Bradford v. Mo., K. & T. R. Co., 64 Mo. App. 475.

1 Internat. & G. N. R. Co. v. Lewis (Tex. Civ. App.), 23 S. W. Rep.
323.

494 CARRIERS OF ANIMALS.

nishing cars according to agreement.’ But it has been
held that if the company has sufficient cars to meet ordinary
demands and there is an unusual demand and it furnishes
them as soon as it can, consistently with the rights of other
shippers, it is not liable; but that it is the company’s duty to
inform the shipper within a reasonable time if it is unable to
furnish cars,—otherwise, if he is ready with the stock, it will
be liable.1°®

The carrier is not liable for an injury to an animal caused
by the improper interference of the shipper or his agent with
the management of the car by the carrier’s employees.”
Thus, where horses were placed in the defendant’s cars and
the latter’s agent ordered a servant to lock the door and he
was prevented from doing so by the plaintiff’s agent and some
of the horses were lost, it was held that the defendant was not
guilty of negligence in failing to lock the door, and conse-
quently was not liable.198

A traveller driving his horse and wagon on a ferry-boat °
and retaining custody of the horse is bound to use ordinary
care, and if he leaves the horse and it becomes frightened and
breaks a chain and is drowned, the owners of the ferry are not
liable.1°° The fact that the plaintiff took his horse on the
platform of a car that he knew to be unsafe was held not to
show contributory negligence as a matter of law.2%

A word may be said in this place as to injuries in trans-
portation, caused not to, but by, animals, 7. e., by vermin. It
was held in England that rats which gnawed a hole in a pipe

“™ Cross v. McFaden, 1 Tex. Civ. App. 461; Gulf, C. & S. F. R. Co.
v. Hume, 87 Tex. art.

But see Il. Cent. R. Co. v. Haynes, 64 Miss. 604.

*” Pittsburgh, C., C. & St. L. R. Co. v, Racer, 5 Ind. App. 209. And
see § 1175, infra.

* Roderick v. B. & O. R. Co., 7 W. Va. 54.

™ Lee v. Raleigh & G. R. Co., 72 N. C. 236.

*” White v. Winnisimmet Co., 7 Cush. (Mass.) 155. And see Hoboken
Land & Imp. Co. v. Lally, 48 N. J. L. 604.

™ Gulf, C. & S. F. R. Co. v. Wood (Tex. Civ. App.), 30 S. W. Rep. 715.

MODE OF TRANSPORTATION. 495

whereby seawater escaped and damaged rice were “dangers
and accidents of the seas” and came within the exception in
a bill of lading.*°* In similar cases in this country the op-
posite opinion was held, rats being considered not to be a
peril of the sea.?°? It has been held also that they did not
come within an exception of damages from vermin,?°? but
this decision has been reversed.?°* The owners of vessels
are also liable for unseaworthiness caused by worms: such in-
juries are not perils of the sea.?%

114. Food and Water—The duty of a carrier to see that ani-
mals entrusted to it are properly fed and watered depends
somewhat upon the contract with the shipper. But whether
or not the shipper is obliged to feed and water his animals,
the carrier is always required to furnish places and facilities
for doing this; ?°° and is liable for failure to do so, though the
damages are but temporary.?°’ But where a carrier’s con-
tract terminates on delivery of the cattle to a connecting car-

*” Hamilton v. Pandorf, 12 App. Cas. 518.

** The Euripides, 71 Fed. Rep. 728; Kanter v. The Italia, 59 id. 617.

And see, to the same effect, The Carlotta, 9 Ben. (U. S.) 1; The Isabella,
8 id. 139, where the fact of damage was held sufficient evidence of
insufficient care and skill in trying to rid the vessel of rats.

*8 The Timor, 46 Fed. Rep. 859, citing Stevens v. Navigazione Gen.
Ital., 39 id. 562.

**The Timor, 67 Fed. Rep. 356.

*5 The Giles Loring, 48 Fed. Rep. 463.

8 Smith v. Mich. Cent. R. Co., 100 Mich. 148; Gulf, C. & S. F. R. Co.
v. Gann, 8 Tex. Civ. App. 620; Ft. Worth & D. C. R. Co. v. Daggett, 87
Tex. 322; Internat. & G. N. R. Co. v. McRae, 82 id. 614; Gulf, C. & S. F.
R. Co. v. Simmons (Tex. Civ. App.), 28 S. W. Rep. 825; Taylor, B. & H.
R. Co. v. Montgomery, 4 Tex. App. (Civ. Cas.) 401; Bryant v. South-
western R. Co., 68 Ga. 805; Wabash, St. L. & P. R. Co. v. Pratt, 15 Il.
App. 177; Toledo, W. & W. R. Co. v. Hamilton, 76 Ill. 393; Abrams v.
Milwaukee, L. S. & W. R. Co., 87 Wis. 485; Atchison, T. & S. F. R. Co.
v. Ditmars, 3 Kan. App. 459.

The company is not liable to a penalty for failure to feed when the road
is in the hands of a receiver: Tex. & Pac. R. Co. v. Barnhart, 5 Tex. Civ.
App. 601.

* Gulf, C. & S. F. R. Co. v. Simmons, supra.

496 CARRIERS OF ANIMALS.

rier, it has a right to deliver to the latter at once and need not
give an opportunity to the shipper to feed and water them,
and in a three hours’ journey no such opportunity need be
given: the carrier has the right to presume the animals are
in proper condition when they were shipped and need not
feed or water them oftener than would be done by an ordi-
narily prudent man with his own stock.?°8 But where there
is an improper detention, the carrier is liable for an injury
from the stock not being watered at the place of detention;?°°
otherwise, where the shipper especially agrees that in case of
accidents, delays, etc., he shall feed and water the animals at
his own expense.”1° And where the company furnishes a car
in which the stock can be fed to a shipper who has agreed to
feed them at his own expense, he has no right to have the car
stopped but can secure delay only by abandoning his contract
or contracting for a longer time.?1!

It is not, however, the negligence of the carrier but the ex-
‘tent of injury likely to flow therefrom and the expense likely
to be incurred in an attempt to avert loss, which must be
looked to in determining whether a shipper in a railway
wreck had the right to rescind the contract of shipment and to
refuse to feed and water the stock as he had agreed to do.
Where the delay is slight and little injury could result, it is
negligence in the shipper or his agent to refuse to feed and
water the stock when facilities are furnished by the company

** Tex. & Pac. R. Co. v. Stribling (Tex. Civ. App.), 34 S. W. Rep. 1002.

See Galveston, H. & S. A. R. Co. v. Ivey (Tex. Civ. App.), 23 id. 321,
cited infra.

*” Harris v. North Ind. R. Co., 20 N. Y. 232. And see Brockway v.
Amer. Exp. Co., 168 Mass. 257.

Where a statute requires the company to feed the stock at the request
of the owner and it is their custom to feed animals at the consignor’s
expense during a delay in the transit, a request will be implied and the
company held liable for any loss occasioned by leaving the animals unfed:
Curran v. Midland Gr. West. R. Co., [1896] 2 I. R. 183.

*° Boaz v. Cent. R. Co., 87 Ga. 463.

™ Ill. Cent. R. Co. v. Peterson, 68 Miss. 454.

FOOD AND WATER. 497

and the wants of the cattle demand such attention. Such.
abandonment by the agent in charge does not impose the
burden of care upon the carrier to the extent of relieving the
shipper of his duty to care for his stock under the shipping
contract.*1?

Apart from such considerations as these, the carrier is
ordinarily not liable where the shipper has especially agreed
to feed and water his stock;*1* unless such liability is im-
posed by statute.*!4 But a company’s obligation to unload,
feed and water the stock when transferring them to another
company, cannot be imposed on the owner even if he is ac-
companying them under a contract to take care of them while:
in transit.2*® And where the carrier contracts not to be li-
able beyond its own terminus, it is, notwithstanding, liable
for injuries resulting from a refusal to feed and water the
stock at its terminus, though the injuries do not appear un-
til the stock are on a connecting line.24® Where the period
of confinement is regulated by statute, a connecting carrier
is bound to take notice of the fact as to how long the animals.
had been confined by the former carrier.?!”

It is not necessary to allege in the petition the places on the
road where the defendant failed to feed and water the
stock.218

A ship is answerable for damages for insufficiency of food

22 Ft, Worth & D.C. R. Co. v. Daggett, 87 Tex. 322, reversing 27 S. W..
Rep. 186.

28 Mo. Pac. R. Co. v. Tex. & Pac. R. Co., 41 Fed. Rep. 913; Cent. R.
Co. v. Bryant, 73 Ga. 722; Burgher v. Chic., R. I. & P. R. Co., 105 Ia.
335; Mobile & O. R. Co. v. Francis (Miss.), 9 South. Rep. 508; Cleveland,
C., C. & St. L. R. Co. v. Patterson, 69 Ill. App. 438.

4 Comer v. Columbia, N. & L. R. Co., 52 S. C. 36.

23 Dunn vy. Hannibal & St. J. R. Co., 68 Mo. 268.

8 Galveston, H. & S. A. R. Co. v. Ivey (Tex. Civ. App.), 23 S. W-
Rep. 321; Galveston, H. & S. A. R. Co. v. Herring (Tex. Civ. App.),
24 id. 939. See Tex. Pac. R. Co. v. Stribling (Tex. Civ. App.), 34 id.
1002, cited supra.

217 Comer v. Columbia, N. & L. R. Co., supra.

*8 Gulf, C. & S. F. R. Co. v. Wilhelm, 4 Tex. App. (Civ. Cas.) 413.

32

498 CARRIERS OF ANIMALS.

up to the arrival at the port of destination but not for further
damages through the absence of a proper supply at that port.
It is not justified in sailing without taking sufficient fodder for
cattle carried, according to agreement, by reason of an alleged
remark of their drover that the fodder was sufficient, especially
where the vessel waits long enough to have it brought aboard
and the cattle owners demand that that be done.??°

A company is not liable for special damages for delay in the
transportation of food for cattle, as a result of which the
cattle were without food for several days, where the company
was not aware at the time the contract was executed that
such special damages would arise from delay.??°

If water is so scarce on the line that it cannot be procured
for the animals, the company should inform the shippers of
the fact beforehand, otherwise they are liable if death results.
It is prima facie negligence in the company to permit a
pump at a station to be out of repair, under such circum-
stances.?72

A shipping contract to carry live-stock from an interior
station in one State to a station in another State is an inter-
state contract, and where there is a failure to feed and water
the stock in either State there is no liability to a penalty under
a statute of that State.?2?

115. Delay and Accident.—A carrier is liable for injuries to
animals resulting from unreasonable delay in transporta-
tion.?*? And the fact that the delay is caused by lack of

*° The Connemara, 57 Fed. Rep. 314.

* Mo., K. & T. R. Co. v. Belcher, 89 Tex. 428.

™ Toledo, W. & W. R. Co. v. Thompson, 71 Il. 434.

™ Gulf, C. & S. F. R. Co. v. Gray, 87 Tex. 312; Gulf, C, & S. F. R. Co.
v. Gann, 8 Tex. Civ. App. 620.

™ Gulf, C. & S. F. R. Co. v. Ellison, 70 Tex. 491; Mo. Pae. R. Co. v.
Harris, 67 id. 166; Belcher v. Mo., K. & T. R. Co. (Tex.), 50 S. W. Rep:
559: Harris v. North Ind. R. Co., 20 N. Y. 232; Richmond .& D. R: Co.
v. Trousdale, 99 Ala. 380.

Though the inherent propensities of the animals may have contributed

DELAY AND ACCIDENT. 499

proper appliances for transporting stock is no defence.224
Nor that it is caused by a failure of the water supply for the
operation of trains due to a drought known to the carrier at
the time the contract was made.?”° Nor that it was caused by
a break on the track due to a storm on a day later than that
on which the shipment was to have been made.?2* And the
fact that the connecting carrier was unprepared to continue
the transportation with due promptness is no excuse for the
neglect of the first carrier to observe diligence in forwarding
the stock.?°* The receipt of the animals by the company is
equivalent to an obligation to transport them without un-
necessary delay.2?8 The company is bound to inform the
shipper within a reasonable time whether it can furnish cars,
and if the shipper, relying on its contract, has the stock ready
and there are no cars, the company is liable.22® An agree-
ment by a station-agent to transport cattle at a given time is
binding, though not within the scope of his authority,
unless the shipper has notice of that fact.?*°

Where the company transports the cattle within a reason-
able time but they do not reach their destination at the time

to the result: Galveston, H. & S. A. R. Co. v. Herring (Tex. Civ. App.),
36 S. W. Rep. 120.

A company in partnership with another may be sued with the latter
for delay in the countv in which the latter operates its road though the
former does not: San Antonio & A. P. R. Co. v. Graves (Tex. Civ. App.),
49 S. W. Rep. 1103.

4 Tucker v. Pac. R. Co., 50 Mo. 385.

“5 Cinc., N. O. & T. P. R. Co. v. Webb (Ky.), 46 S. W. Rep. 11.

“8 Gulf, C. & S. F. R. Co. v. McCorquodale, 71 Tex. 41. And see Gann
v. Chic. Great Western R. Co., 72 Mo. App. 34.

“1 Alexander v. Pa. R. Co., 7 Pa. Super. Ct. 183.

28 Pruitt v. Hannibal & St. J. R. Co., 62 Mo. 527; Cine, I., St. L. &
C. R. Co. v. Case, 122 Ind. 310.

9 Ayres v. Chic. & N. R. Co., 71 Wis. 372. And see § 113, supra.

What is a “reasonable time” for furnishing cars is a question of fact
for the jury: Davis v. Tex. & Pac. R. Co. (Tex.), 44'S. W. Rep. 822.

°° Gann v. Chic. Great Western R. Co., 72 Mo. App. 34; Gulf, C. &
S. F. R. Co. v. Hume, 87 Tex. 211; Pittsb., C.. C. & St. LR. Co. v.

Racer, 10 Ind. App. 593.

500 CARRIERS OF ANIMALS.

designed by the shipper, the company is not liable unless it
has been notified of such design at the time the cattle were
received.221_ A contract as to what shall constitute a reason-
able time for transportation and that the carrier shall not be
liable if the stock are transported within that time is not a
contract to transport at or within a fixed time, but is a con-
tract that, if the transportation is within such time, the car-
rier shall not be liable for damages unless the delay is caused
by negligence.”#?

The carrier is liable for delay caused by the presentation
for shipment of cattle belonging to a third person and the use
of the cars contracted for to ship the latter’s cattle, the inspec-
tion of the plaintiff's cattle having been sufficiently completed
to warrant shipment without delay.2** And where the owner
assumed all risks of loss from loading, unloading and convey-
ance and the carriers did not undertake to forward by a par-
ticular train or at a specified hour and were not to be re-
sponsible for delivery within a certain time or for a particular
market, this was held not to exempt the carriers from liability
for discrimination in favor of other freight by which the cars
were placed on a side track where the cattle could not be un-
loaded, fed or watered and where they remained for two or
three days: this was not negligence in the performance of the
contract but an entire abandonment of all effort to perform
it for the time and constituted a breach thereof.?34

It has been held to be the duty of the carrier to transport
live-stock by the first train after they are loaded ;?*° though

* Atchison, T. & S. F. R. Co. v. Bryan (Tex. Civ. App.), 28 S. W.
Rep. 98. And see Gulf, C. & S. F. R. Co. v. Baugh (Tex. Civ. App.),
42 id. 245. See, as to dogs sent to a show, Welch v. Great Western R.
Co. (Co. Ct. case), 106 L. T. 218.

™ Blanchard v. Chic. & A. R. Co., 60 Mo. App. 267.

™ Internat. & G. N. R. Co. Receivers v. Wright, 2 Tex. Civ. App. 108.

™ Keeney v. Grand Trunk R. Co., 47 N. Y. 525.

* Til. Cent. R. Co. v. Waters, 41 Ill. 73.

The omission of a train on account of scarcity of freight, without notice
to the shipper, is no defence: Kan. & A. V. R. Co. v. Ayers, 63 Ark. 331.

DELAY AND ACCIDENT. 501

this has been denied, where the shipment is within a reason-
able time.8® The company was held liable where the train
was side-tracked for six hours to let another train pass; 237
also where the stock train was allowed to pass without taking
the car containing the cattle so that they could not get to
their destination in time for the required market.238

If the company fails to ship the stock by passenger service,
as agreed upon, and ships it by freight service, it is responsi-
ble for injuries resulting from the delay and the rougher serv-
ice and cannot avail itself of a stipulation relieving it from
liability as an insurer at common law.?*® But in West Vir-
ginia it was held that, under counts against the defendant
merely as a carrier or bailee of cattle, the shipper cannot re-
cover for losses resulting from a misrepresentation of the de-
fendant’s agent whereby the former was induced to ship in a
slow instead of a fast train.?4°

A company is liable for a delay on a connecting road when
it has contracted to deliver the cattle at a certain point, un-
less there is a special contract exempting it from such lia-
bility.24

A carrier cannot excuse itself for the delay on the ground
that it was caused by an unusual rush of business; ?4? though
in Mississippi there is a decision to the contrary."** And an
unconstitutional statute prohibiting the carrying of Texas
cattle is no excuse for refusal or delay on the part of the car-
rier.244 The shipper is, however, bound by the ordinary

*° Pennsylvania Co. v. Clark, 2 Ind. App. 146.

"7 Douglass v. Hannibal & St. J. R. Co., 53 Mo. App. 473.

*8 Tl], Cent. R. Co. v. Simmons, 49 Ill. App. 443.

*89 Pavitt v. Lehigh Val. R. Co., 153 Pa. St. 302.

“9 Maslin v. B. & O. R. Co., 14 W. Va. 180.

2 Toledo, W. & W. R. Co. v. Lockhart, 71 Ill. 627.

“2 Internat. & G. N. R. Co. v. Anderson, 3 Tex. Civ. App. 8; Gulf, C.
& S. F.R. Co. v. McAulay (Tex. Civ. App.), 26 5. W. Rep. 475.

See also § 113, supra.
*38TI1 Cent. R. Co. v. Haynes, 64 Miss. 604.
“4 Chic. & A. R. Co. v. Erickson, gt Ill. 613.

502 CARRIERS OF ANIMALS.

traffic arrangements of the company whether published or
not. The reasonableness of such arrangements is not for the
jury.24

Where the shipper put the cattle into the stock pens pro-
vided by the company, expecting the cars at any hour and
there being no grass in the neighborhood and no other place
to keep the cattle in, and they were injured on account of the
lack of food and water in the pens, it was held that he was not
guilty of negligence contributing to the damage caused by
the delay in shipment.24® Where the animals are not shipped
at the proper time, the delay occasioned by the non-shipment
and the necessary expense of taking care of and feeding them
while waiting transportation were held to be the natural and
proximate consequences of the carrier’s act, but not the loss
occasioned by death or shrinkage in weight of the animals
while so waiting, unless caused directly by the defendant’s
act.?47

The wreck of a train has been held to be a legal excuse for
a delay.248 But where the propeller shaft of a steamer broke
owing to weakness caused by long use, existing at the time
of sailing, this was held to be a breach of a warranty of sea-
worthiness, which was not included in an exception in the
bill of lading of perils of the sea and damage by delays and
defects of machinery, and the vessel was held liable for the
damage caused to the cattle by the increased length of the
voyage.?49

Where the shipment of live-stock is delayed by a wash-out
and the company has a way around the wash-out by the use
of which the delay would have been avoided, the company

“5 Tobin v. London & N. R. Co., [1895] 2 I. R. 22.

‘ * Internat. & G. N. R. Co. v. Ritchie (Tex. Civ. App.), 26 S. W. Rep.
340.

*" Ballentine v. North Mo. R. Co., 40 Mo. gar.

See Gann v. Chic. Great Western R. Co., 72 Mo. App. 34.
“8 Newport News & M. V. R. Co. v. Mercer, 96 Ky. 475.
“© The Caledonia, 50 Fed. Rep. 567, 43 id. 681, 157 U. S. 124.

DELAY AND ACCIDENT. 503

is liable.2°° And where an express company undertakes to
transport horses with knowledge that floods have obstructed
a portion of its route, they are not such an act of God as will
relieve the company from an injury sustained by the horses
while they were being conveyed over another route.?*!

Where, owing to atmospheric or other influences, on
the telegraph wires, beyond the carrier’s control, the en-
gineer failed to receive orders to move a train, the company
was held not liable for delay in delivering the stock, whether
the failure of the wires was to be attributed to the act of God
or not.2°?. So, the company was held not liable in Michigan
where the live-stock could not have been taken on from a
way-station without an extra engine, owing to an unavoid-
able exigency.758

A strike attaining sufficient proportions to be put down by
the military power of the State was held to be a sufficient ex-
cuse for a company’s not carrying out a contract to receive
and carry live-stock.2°4 And where the shipper assumed the
risks of transportation and agreed that the company should
not be responsible for delays at the terminal points, it was
held that the company was not responsible for a delay caused
by a riot, whereby some of the animals fell sick and died.***
Nor was the carrier held liable, under similar circumstances,
where the delays were caused by the public enemy and the
necessary employment of the road in the service of the Gov-
ernment.?°°

*° Mo., K. & T. R. Co. Receivers v. Olive (Tex. Civ. App.), 23 S. W.
Rep. 526.

71 Adams Exp. Co. v. Jackson, 92 Tenn. 326.

72 Internat. & G. N. R. Co. v. Hynes, 3 Tex. Civ. App. 20.

8 Mich. S. & N. I. R. Co. v. McDonough, 21 Mich. 165.

*4 Dittsb., Cinc. & St. L. R. Co. v. Hollowell, 65 Ind. 188. And see
Internat. & G. N. R. Co. v. Tisdale, 74 Tex. 8.

But evidence of a strike at the point of destination cannot be intro-
duced under the general denial: St. Louis, I. M. & S. R. Co. v, Pum-
phrey (Tex. Civ. App.), 42 S. W. Rep. 246.

55 Bartlett v. Pittsb., C. & St. L. R. Co., 94 Ind. 281.

26 Bankard v. Balt. & O. R. Co., 34 Md. 197.

504 CARRIERS OF ANIMALS.

The carrier is not, in general, obliged to furnish cars for
the transportation of live-stock on Sunday.?°* But it has
been held error to charge that the defendant need not run a
train on Sunday.75§

Where it is alleged that the delay was caused by the com-
pany’s negligence without stating what that negligence was,
evidence may be given of the bad condition of the track in
order to show negligence.2®® Declarations of trainmen as to
the cause of delay are admissible against the company.

Where the carriage of cattle was prepaid but that fact was
not made known to the company’s servants at the place of
delivery and they refused to deliver for two days whereby a
damage by exposure was caused, it was held that the refusal
to deliver did not come within the meaning of “detention,”
the risk of which the shipper had assumed, and that the com-
pany was liable.26! A clause in a contract that no action for
delay in transportation should lie unless the citation was
served within forty days was held void as against public
‘policy.?%

A carrier does not insure against an irresistible act of na-
‘ture and hence is not liable for the death of an animal caused
by extraordinarily bad weather.?®* So, a snow-storm of such
violence as to prevent the moving of trains is an act of God
for which the carrier is not liable.2** But where a heavy
‘snow-storm stopped the train and the cattle were put into
cattle sheds and injured by exposure, although the company
had substantially-built horse stables which could have been

** Guinn v. Wabash, St. L. & P. R. Co., 20 Mo. App. 453. And see
Waters v. Richm. & D. R. Co., 108 N: C. 340.

*8 Belcher v. Mo., K. & T. R. Co. (Tex.), 50 S. W. Rep. 550.

* St. Louis, A. & T. R. Co. v. Turner, 1 Tex. Civ. App. 625.

Atchison, T. & S. F. R. Co. v. Consold. Cattle Co. (Kan.), 52 Pac.
Rep. 71.

** Gordon v. Great Western R. Co., 8 Q. B. D. 44.

7? Gulf, C. & S. F. R. Co. v. Hume, 87 Tex. art.

8 Nugent v. Smith, 1 C. P. D. 423.

74 Black v. Chic., B. & O. R. Co., 30 Neb. 197.

DELAY AND ACCIDENT. 505

used for shelter, it was held that the damage was not due to
inevitable accident but to want of proper care and that the
fact that the plaintiff's servant accompanied the cattle on a
free pass did not exempt the defendant from liability for the
negligence of its servants.2°° So, where a shipment made in
January was delayed by the freezing of the pipes between the
tank and the boiler of the engine, it was held that the carrier
was liable, as such freezing was not “caused by stress of
weather” within the meaning of the exception in the con-
tract.26¢

Where a vessel struck a hidden obstruction and filled with
water and a cabin containing bees floated to the shore, but no
effort was made by the master to use care in saving them,
the steamboat line was held liable for damage to them,
though the vessel was insured and was abandoned to the
underwriters as a total loss.2°7 And the owners of a steam-
boat were held liable for the loss of animals which, at a diffi-
cult point of the navigation, were sent on shore to lighten the
boat and strayed away through the negligence of those in
charge of the boat.28

116. Injuries Due to the Nature and Condition of Animals.—
The carrier, as has already been said, is not an insurer against
or liable for injury to animals resulting from their nature and
propensities, without any negligence on his part; ?® nor is

** Feinberg v. Del., L. & W. R. Co., 52 N. J. L. 451.

6 Cleveland, C., C. & St. L. R. Co. v. Heath (Ind. App.), 53 N. E.
Rep. 108.

**" Bixby v. Deemar, 54 Fed. Rep. 718.

8 Pitre v. Offutt, 21 La. Ann. 679, where it was held that a custom that
the ship took no risks must be brought to the knowledge of the shipper
to constitute a good defence.

*° See § 110, supra; Coupland v. Housatonic R. Co., 61 Conn. 531; Black
v. Chic., B. & Q. R. Co., 30 Neb. 197; Louisville & N. R. Co. v. Wynn,
88 Tenn. 320; Hall v. Renfro, 3 Metc. (Ky.) 51; Ill. Cent. R. Co. v. Brels-
ford, 13 Ill. App. 251; Mynard v. Syracuse, B. & N. Y. R. Co., 71 N. Y.
180; Penn v. Buffalo & E. R. Co., 49 id. 204; Heyman v. P. & R. R. Co.,
54 N. Y. Super. Ct. 158; Bamberg v. So. Car. R. Co., 9 S. C. 61; McCoy

506 CARRIERS OF ANIMALS.

he liable where the injuries were due to the original condi-
tion of the animals and their want of inherent vitality.?
The rule is otherwise where the injury, though due to the
propensities of the animal, could have been prevented by the
exercise of due care.271_ But an instruction that the defend-
ant is not liable for injuries to cattle caused by their inherent
viciousness is rightly refused if such issue has not been raised
by the pleading and no evidence has been brought out by the
plaintiff.27? It is the shipper’s duty to disclose any peculiar-
ities of the animals not apparent, that would increase the risk
of carriage.?78

The condition in a contract that the company should not
be liable for injury resulting from fear or restiveness was held
good where it did not include fear and restiveness occasioned
by the company’s negligence.?"* Where the plaintiff’s agent
told the conductor that the animals were frightened and in
danger of being hurt and asked to have the car set off at an
intermediate station, it was the carrier’s duty to comply and
it is liable for negligence in not doing so.?75

v. K. & D.M. R. Co., 44 Ia. 424; Schoenfeld v. Louisv. & N. R. Co., 49
La. Ann. 907; South & North Ala. R. Co. v. Henlein, 52 Ala. 606: Evans
v. Fitchburg R. Co., 111.Mass. 142; Smith v. New Haven & N. R. Co., 12
Allen (Mass.) 531; Louisville, N. O. & T. R. Co. v. Bigger, 66 Miss. 310;
Lindsley v. Chic., M. & St. P. R. Co., 36 Minn. 539; Nugent v. Smith,
1C. P. D. 423; Blower v. Gt. West. R. Co., L. R. 7 C. P. 655.

*° Mo. Pac. R. Co. v. Tex. & P. R. Co., 41 Fed. Rep. 913; Indianapolis.
& St. L. R. Co. v. Jurey, 8 Il. App. 160; Chic., R. I. & P. R. Co. v. Har-
mon, 12 id. 54; Mo. Pac. R. Co. v. Heath (Tex.), 18 S. W. Rep. 477.

™ Clarke v. Rochester & S. R. Co., 14 N. Y. 570; Giblin v. Nat. Steam-
ship Co., 8 Misc. (N. Y.) 22; Kinnick v. Chic., R. 1. & P. R. Co., 69 Ia.
665; Loeser v. Chic., M. & St. P. R. Co., 94 Wis. 571.

™ Ft. Worth & D.C. R. Co. v. Greathouse, 82 Tex. 104.

See Mo. Pac. R. Co. v. Fagan (Tex. Civ. App.), 29 S. W. Rep. 1110,
where the company was held not liable though its pleadings did not raise
the issue.

*® Hutchinson Carriers § 223.

*4 Moore v. Great Northern R. Co., 10 L. R. Ir. 95. And see, in gen-
eral, § 111, supra.

*° Coupland v. Housatonic R. Co., 61 Conn. 531.

INJURIES DUE TO NATURE OF ANIMALS. 507

In Texas it has been held that where a part of the stock
were mares in foal the company were liable only for failure
to exercise reasonable care; ?7* and in a later case between
the same parties it was held that where a mare in foal was in-
jured, the common carrier was not liable unless it had notice
to that effect or of facts sufficient to charge it with knowledge
of her condition.?77_ But in Towa a shipper was held not to
be bound to inform the carrier that a cow was about eight
months gone with calf.27® And in a Federal case where
cattle miscarried and suffered an impairment in their breed-
ing capacity through a collision, it was held that the defend-
ant’s liability for damages for negligence was not lessened by
the fact that he had received no notice that they were in-
tended for breeding purposes, especially as they were being
shipped away from the market for beef cattle.27® And this
view was sustained by the Supreme Court which held that
where cows with calf were damaged by abortions caused by
the carrier's negligence, in order to charge the latter it was
not necessary to show that it had notice that the cows were
with calf, there being nothing to show that any special or un-
usual care was requisite by reason of their being pregnant;
and it was held not material whether the plaintiffs intended to
keep the cattle upon their farms for breeding purposes or to
sell them on the market.?®°

A stipulation that a shipper should furnish each conductor
a statement of the condition of the cattle and that failure to
do so would be conclusive evidence of their good condition,
was held unreasonable.28! A written statement as to the good
condition of the animals made by the shipper’s agents in
transit does not estop him from showing that it is not true,

7 Mo. Pac. R. Co. v. Fagan, 72 Tex. 127.

7 Mo. Pac. R. Co. v. Fagan (Tex. Civ. App.), 27 S. W. Rep. 887.
7 McCune v. B., C. R. & N. R. Co., 52 Ia. 600.

” Fetill v. N. Y., L. E. & W. R. Co., 41 Fed. Rep. 849.

NY. L. E. & W.R. Co. v. Estill, 147 U. S. 591.

1 Mo., K. & T. R. Co. v. Carter, 9 Tex. Civ. App. 677.

508 CARRIERS OF ANIMALS.

though it adds to his burden of proving their bad condi-
tion.28?

The question of the burden of proof in these cases is con-
sidered in § 118, infra.

117. Notice——A stipulation that the shipper before remov-
ing his stock and mingling them with others should give
notice of his claim for damages to some officer or agent of
the company is a reasonable one and will be enforced.?**
In the absence of such a stipulation, one may maintain an
action without giving the carrier notice of the injury or
offering the animal to him to be cared for.?8* And such
notice is not necessary in the case of a claim for damages
for delay in transportation, but only where the animal has
been physically injured in the transit.28° Nor is it necessary
where the animal is dead on arrival.28* If the extent of the
injury is not known by the exercise of reasonable diligence at
the time of removal, the shipper has a reasonable time after-
wards in which to give notice.28* Thus, the stipulation as
to notice before removal was held prima facie unreasonable
where horses were injured by the burning of the car, it
not being probable that the full amount of damage would

St. Louis, A. & T. R. Co. v. Turner, 1 Tex. Civ. App. 625.

** Owen v. Louisville & N. R. Co., 87 Ky. 626; Selby v. Wilm. & W. R.
Co., 113 N. C. 588; Wichita & W. R. Co. v. Koch, 47 Kan. 753; Sprague
v. Mo. Pac. R. Co., 34 id. 347; Goggin v. Kan. Pac. R. Co., 12 id. 416;
Gulf, C. & S. F. R. Co. v. Wright, 1 Tex. Civ. App. 402.

But see Smitha v. Louisville & N. R. Co., 86 Tenn. 198; Mo. Pac. R.
Co. v. Harris, 67 Tex. 166; Good v. Galveston, H. & S. A. R. Co. (Tex.),
11S. W. Rep. 854; Ohio & M. R. Co. v. Tabor, 98 Ky. 503.

See, also, 6 Am. & Eng. R. R. Cas., N. S., 632 n.

** Evans v. Dunbar, 117 Mass. 546.

* Louisville & N. R. Co. v. Bell, 13 Ky. L. Rep. 393; Kramer v. Chic.,
M. & St. P. R. Co., ror Ia. 178.

* Kan. & A. V. R. Co. uv. Ayers, 63 Ark. 331.

“Western R. Co. of Ala. v. Harwell, 97 Ala. 341; Louisville, N. A.
& C. R. Co. v. Steele, 6 Ind. App. 183; Gulf, C. & S. F. R. Co. v. Stanley,
89 Tex. 42; Ormsby v. Un. Pac. R. Co., 2 McCrary C. Ct. (U. S.) 48.

NOTICE. 509

be immediately disclosed.?8§ And where the stipulation was
to give notice within twenty-four hours, and at the time
the injury appeared slight but the animal after receiving
proper care proved seriously and permanently injured, shortly
after which the agent of the company was notified and
answered that the claim was being investigated and would be
settled on the merits, it was held that non-compliance with
the stipulation would not prevent recovery.7°® Where a
number of hogs died from exposure before reshipment by the
company over a connecting road and the shipper orally noti-
fied the company thereof and demanded damages before the
reshipment, it was held that the written notice required by
the shipping contract was not a condition precedent to an
action for damages.7°° And, in general, the company
may waive a provision that the claim for damages shall be
in writing by receiving verbal notice without objection and
treating the claim as pending.?*!

Contracts have been upheld where the stipulation was to
give notice of the injury within one day after delivery; °°?
within five days 8? or ten days ?%* after unloading; within
thirty days after the accident,”®* or delivery.2°* But a clause
that an action for damages must be brought within fourteen
days was held to be in conflict with a statute making it un-
lawful to limit the time to a shorter period than two years.797

8 Houston & T. C. R. Co. v. Davis (Tex. Civ. App.), 31 S. W. Rep. 308.

9 Harned v. Mo. Pac. R. Co., 51 Mo. App. 482.

2 Wichita & W. R. Co. v. Koch (Kan. App.), 56 Pac. Rep. 538.

1 Chic. & A. R. Co. v. Grimes, 71 Ill. App. 397.

2 Internat. & G. N. R. Co. v. Garrett, 5 Tex. Civ. App. 540; Kan. &
A. V.R. Co. v. Ayers, 63 Ark. 331.

But see Mo. Pac. R. Co. v. Paine, 1 Tex. Civ. App. 621.

2% Dawson v. St. Louis, K. C. & N. R. Co., 76 Mo. 514; McBeath v.
Wabash, St. L. & P. R. Co., 20 Mo. App. 445; Wabash, St. L. & P. R.
Co. v. Black, 11 Ill. App. 46¢.

2% Case v, Cleveland, C., C. & St. L. R. Co., 11 Ind. App. 517.

3 Armstrong v. Chic., M. & St. P. R. Co., 53 Minn. 183.

6 T ouisville, N. A. & C. R. Co. v. Widman, 10 Ind. App. 92.

“7 St Louis S. W. R. Co. v. Williams (Tex. Civ. App.), 32 S. W. Rep.

510 CARRIERS OF -ANIMALS.

And a stipulation that suit should be brought within forty
days was held unreasonable.?9®

Taking an injured mule from the cars at the destination
and letting it run on the commons there, the shipper re-
fusing to receive it, was held not to be removal or mingling
within the meaning of the stipulation as to notice.?°°

It must be shown that the company had an officer or
station-agent near the place of delivery to whom notice might
be given;#°° and where the plaintiff has no knowledge of
such and no one is named in the contract, the stipulation
as to notice has been held unreasonable.**

Mere knowledge by the agents of the company that the
shipper claimed to have lost some of his stock, coupled with
a search therefor along the track, does not amount to a
waiver of the stipulated notice.2°? It is otherwise where the
agents, with knowledge of the injury, have consented to the
removal of the stock before reaching their destination; 3°
or, in consequence of an injury in unloading, have returned an
animal, free of charge, to the place of shipment; °°* or have

225. And see Ft. Worth & D.C. R. Co. v. McAnulty, 7 Tex. Civ. App.
321.

*’ Gulf, C. & S. F. R. Co. v. Stanley, 89 Tex. 42. And see Gulf, C. &
S. F. R. Co. v. Hume, 87 id. 211.

* Chic., St. L. & N. O. R. Co. v. Abels, 60 Miss. 1017.

°° Mo. Pac. R. Co. v. Childers, 1 Tex. Civ. App. 302; St. Louis, A. &
T. R. Co. v. Turner, Ibid. 625; Good v. Galveston, H. & S. A. R. Co.
(Tex.), 11 S. W. Rep. 854.

5° Galveston, H. & S. A. R. Co. v. Williams (Tex. Civ. App.), 25 S. W.
Rep. 1019; Galveston, H. & S. A. R. Co. v. Short (Tex. Civ. App.), 25
id. 142; Baxter v. Louisv., N. A. & C. R. Co., 165 Ill. 78: Smitha v.
Louisville & N. R. Co., 86 Tenn. 198; Engesether v. Gr. North. R. Co., 65
Minn. 168.

See Mo. Pac. R. Co. v. Childers, 1 Tex. Civ. App. 302; Same v. Paine,
Ibid. 621, where it was held that the question of reasonableness was for
the jury.

™ Case v. Cleveland, C., C. & St. L. R. Co., 11 Ind. App. 517.

= Cent. R. Co. v. Pickett, 87 Ga. 734. And see Atchison, T. & S. F. R.
Co. v. Temple, 47 Kan. 7; Rice v. Kan. Pac. R. Co., 63 Mo. 314; Wood
v. Southern R. Co., 118 N. C. 1056.

* Owen v. Louisville & N. R. Co. (Ky.), 9 S. W. Rep. 841.

NOVICE. 511

‘taken the animal after the injury to a distant point and
killed it and the shipper has had no means of learning of the
injury within the designated time.*°* But where a company
deviates from its contract to transport live-stock by passenger
service and the animals are injured by the delay and rougher
service, this deviation does not relieve the shipper from giving
notice of his claim for damages according to agreement.

118. Evidence.—It is, of course, essential to recovery that
the shipper should show in the first place that his animals
were delivered to the carrier and that they were lost or dam-
aged in the course of transportation.°° In the latter case,
more evidence seems to be required in the case of live-stock
and other property subject to inherent defects than in the
case of inanimate property in general: the shipper must prove
to some extent that the injury has not resulted from the
inherent defect.2°% Thus, where a horse in apparently good
condition was shipped on a steamer and delivered in a dying
condition, but without any external injury, it was held that
some negligence on the part of the carrier must be shown
by the shipper before the burden would be on the former
to show that he was in no fault., “When the damage to the
thing shipped is apparently the result of its inherent nature
or inherent defects, the shipper must show something more
than its damaged condition before the carrier can be called
on to explain.” 9° And in a similar case in England where
a quiet horse was found injured when there had been no acci-

% Richardson v. Chic. & A. R. Co., 62 Mo. App. 1; Same v. Same
(Mo.), 50 S. W. Rep. 782.

* Pavitt v. Lehigh Val. R. Co., 153 Pa. St. 302.

*7 Hutchinson Carriers §§ 759, 764.

A shipping receipt reciting the shipment of cattle may. be contradicted
by the carrier’s showing that it never received the cattle: Lake Shore
& M.S. R. Co. v. Nat. Live-Stock Bk., 178 Ill. 506:

*° Hutchinson Carriers § 768.

*® Fussey v. The Saragossa, 3 Woods C. Ct. (U. S.) 380. And see
Louisville & N. R. Co. v. Wathen (Ky.), 49 S. W. Rep. 185.

512 CARRIERS OF ANIMALS.

dent to the train and there was no proof of the defendant’s
negligence, the cause of the injuries being unknown except
that they appeared to have been caused by the horse getting
upon the floor of the horse-box, it was held that the defend-
ants were not liable, as it was to be inferred that the damage
resulted from the propensity of the horse.34° So, in a Penn-
sylvania case, where a horse was shipped under a contract
relieving the carrier from loss in transit except through gross
negligence, and died on the way, and there was no proof
of the cause of the death, it was held that no presumption of
negligence arose from the fact of the loss and the plaintiff
was not entitled to recover. The court said: “If, for any
reason, an ‘injurious accident’ happens to, or by reason of,
that which the carrier provides for the transportation, the
law, which imposes the exercise of the utmost care upon him,
presumes the accident to be due to the want of that care and
puts upon him the duty of successfully relieving himself from
that presumption. But when the fact of an ‘injurious accident’
is not shown to exist, the presumption which arises from it
cannot be invoked by a plaintiff. The contract of the carrier
does not insure against death generally, but only as it may
be the result of an injurious accident in the course of the
carriage.” *11. Subject to the above qualification, loss is
prima facie proof of the carrier’s negligence,*!? and it has been
held that where the stock were wholly in the carrier’s care
he must show by a preponderance of evidence that their death
resulted from the inherent nature of the animals without any
contributory negligence on his part.*43 In fact, the qualifica-

*° Kendall v. London & S. W. R. Co., L. R. 7 Ex. 373.

™ Pennsylvania R. Co. v. Raiordon, 119 Pa. St. 577.

™ Louisville, Cinc. & L. R. Co. v. Hedger, 9 Bush (Ky.) 645; Porter-
field v. Humphreys, 8 Humph. (Tenn.) 497; Mo. Pac. R. Co. v. Scott,
4 Tex. Civ. App. 76; St. Louis & S. F. R. Co. v. Parmer (Tex. Civ. App.),.
30 S. W. Rep. 1109; Curran v. Midland Gr. West. R. Co., [1896] 2 I. R.
183.

*° Lindsley v. Chic., M. & St. P. R. Co., 36 Minn. 539; Dow v. Port-
land S. P. Co., 84 Me. 490.

EVIDENCE, 513

tion itself would seem to be confined to cases where the injury
has apparently resulted from some intrinsic propensity or de-
fect. Otherwise there is no reason why the ordinary rule as
to inanimate property should not apply here also.

The shipper having proved the damage and having over-
come the apparent presumption of intrinsic defect, the burden
of proof is then on the carrier to show that the damage falls
within one of the exceptions to his general liability either at
the common law or by the provisions of the special contract
restricting that liability in various ways.?!* Whether the
carrier, having shown this, is obliged also to show that the
injury was not due in any way to his own negligence or
whether the proof of the fact that the loss falls within the
excepted perils shifts to the shipper the burden of proving the
carrier’s negligence, is a much disputed question. The
opinion that seems more rational on general principles is that
the burden of disproving his own negligence rests with the
carrier as having almost exclusively the means of knowl-
edge.245 A natural exception to this rule would be where
the shipper accompanies the animals and takes charge of them
at his own risk. Accordingly, it was held in Indiana that
in such a case he cannot recover for a failure to carry safely
‘without alleging and showing that the loss was not due to a
breach of his own stipulations, but was caused by the carrier's
breach of duty. “The animals were not... in the ex-
clusive custody and control of the carrier, so that the case
is not within the reason of the rule that the carrier, and not
the shipper, has the burden of proof, because the former has

“4 Hutchinson Carriers § 765; Wallingford v. Columbia & G. R. Co., 26
S. C. 258.

%5 This rule is said in Hutchinson Carriers § 766 to prevail in Alabama,
Georgia, Mississippi, Ohio, South Carolina, Texas and West Virginia,
and to be approved of in Minnesota and Nebraska, “and certainly seems
to be the better rule and in accord with reason and public policy.”

See, also, 2 Greenleaf Evidence § 219; Boehl v. Chic., M. & St. P. R.
Co., 44 Minn. 191; Western R. Co. of Ala. v. Harwell, 91 Ala. 340; Mit-
chell v. Carolina Cent. R. Co. (N. C.), 32 5. E. Rep. 671, and cases cited.

33

514 CARRIERS OF ANIMALS.

all the means of explanation and excuse at hand. Here the
shippers, better than the carrier, can explain many things, and
these things they do not undertake to explain, nor do they
undertake to show that the loss was not attributable to a
failure to perform acts they themselves agreed to per-
form.” 316

But the majority of decisions go further than this and hold
that the burden of proving the carrier’s negligence in these
cases falls on the shipper whether he accompanied the stock
or not.3?*

Expert evidence is admissible as to the market value of
animals; 48 a fortiori, as to their value where there is no
market value.3!® Thus, witnesses experienced in handling
and shipping cattle may express an opinion as to the extent
such cattle would shrink in weight in a given time, though
they had never seen the plaintiff’s cattle.2°° And the plaintiff
may testify as to the condition and weight of cattle when he
purchased them, as tending to show their value.2?4 And
proof of the good condition of the cattle when shipped is

“° Terre Haute & L. R. Co. v. Sherwood, 132 Ind. 129. And see the
note in 17 L. R. A. 339. See also Clark v. St. Louis, K. C. & N. R. Co.,
64 Mo. 440; St. Louis, I. M. & S. R. Co. v. Weakly, 50 Ark. 397; Tex.
& Pac. R. Co. v. Arnold (Tex. Civ. App.), 40 S. W. Rep. 829; St. Louis
S. W. R. Co. v. Vaughan (Tex. Civ. App.), 41 id. 415; Grieve v. Ill. Cent.
R. Co., 104 Ia. 659.

** Hutchinson Carriers § 767,—where it is said that this rule ‘seems to
be supported by a preponderance of authority” and prevails in England,
Arkansas, Kansas, Louisiana, Missouri, New York, North Carolina, Penn-
sylvania, Rhode Island, Tennessee and the United States courts, and
probably in Iowa and Maine.

And see Smith v. Midland R. Co., 57 L. T. N. S. 813; Harris v. Midland
R. Co., 25 W. R. 63; Bankard v. Balt. & O. R. Co., 34 Md. 197; The J. C.
Stevenson, 17 Fed. Rep. 540.

™* Cantling v. Hannibal & St. J. R. Co., 54 Mo. 385; Mo., K. & T. R.
‘Co. v. Woods (Tex. Civ. App.), 31 S. W. Kep 237.

*° Lachner Bros. v. Adams Exp. Co., 72 Mo. App. 13.

*° Mo. Pac. R. Co. v. Hall, 66 Fed. Rep. 868.

™ St. Louis S. W. R. Co. v. Williams (Tex. Civ. App.), 32 S. W.
Rep. 225.

EVIDENCE. 515

admissible, in connection with other evidence.??, Testimony
as to the market value of cattle on a certain day based on
newspaper reports read by a witness is admissible.32%
Evidence is properly received as to the elements of value in
an animal used for breeding purposes, and as to its pedi-
gree.*4 An expert witness may testify as to whether a car
is reasonably safe.**’ But cattlemen cannot testify that they
will not use ordinary cars if they can get the improved kind.226
Where the plaintiff's horse was injured in the carrier’s stable,
evidence may be given of the character of stables ordi-
narily used in the neighborhood.*?* Evidence may be received
of the incompetence of an employee of the carrier resulting in
an injury.*28 And evidence of the general course of the
carrier's business is admissible on the question of negli-
gence.329

Evidence that animals of the number and weight could not
be shipped in one car in hot weather is admissible. It is not
expert evidence but proof of a fact to which anyone could
testify.*3° The fact that a shipment of cattle bedded by the
shipper arrived in good condition is not admissible to prove
that the death of a similar shipment made at the same time
in cars of the same character, but sent over another route,
was caused by the negligence of the carrier in bedding the
cars.331

* Hendrick v. Boston & A. R. Co., 170 Mass. 44.

*8 Fort Worth & D. C. R. Co. v. Daggett (Tex. Civ. App.), 27 S. W.
Rep. 186, reversed on another point in 87 Tex. 322.

And see Hudson v. North. Pac. R. Co., 92 Ia. 231.

*4 Winchell v Nat. Express Co., 64 Vt. 15. And see Pacific Exp. Co.
v. Lothrop (Tex. Civ App.), 49 S. W. Rep. 898.

> Betts v. Chic., R. I. & P. R. Co., 92 Ia. 343.

*° Mo. K. & T.R.Co. v. Darlington (Tex. Civ. App.), 30 S.W. Rep. 251.

#7 Armstrong v. Chic., M. & St. P. R. Co., 45 Minn. 85.

“8 Galveston, H. & S. A. R. Co. v. Johnson (Tex.), 19 S. W. Rep. 867;
Martin v. Towle, 59 N. H. 31.

*® Hendrick v. Boston & A. R. Co., 170 Mass. 44.

*° Wabash, St. L. & P. R. Co. v. Pratt, 15 Ill. App. 177.

31 Houston & T. C. R. Co. v. Wilson (Tex. Civ. App.), 50 S. W. Rep.
156.

516 CARRIERS OF ANIMALS.

The evidence need not show the exact number of the dead
and injured animals where this can be computed.*??— And
where cattle injured by the perils of the sea are thrown over-
board with others not so injured, the failure of the respondent
to prove the precise number that were injured does not make
him responsible for all that were lost.*** The actual market
value need not be alleged; and where the animals have no
market value at the place of destination proof of their intrinsic
value is admissible.224 So is proof of their cost, though that
is not conclusive.#%°

119. Damages.—Where animals have been injured in trans-
portation the measure of damages in an action against the
carrier is the difference, after deducting the cost of trans-
portation, between their market value at the point of des-
tination when they were actually delivered and what it would
have been but for the injury, with interest and incidental
expenses.*25 And this is so, though the intention was to
pasture them at the destination and not to sell them at
once.237 But where the owner keeps the injured cattle until
they recover, the measure of damages is the actual damage

3 Mo. Pac. R. Co. v. Edwards, 78 Tex. 307.

33 Brauer v. Compania de Navign. La Flecha, 35 U. S. App. 44. af-
firmed in Compania de Navign. La Flecha v. Brauer, 168 U. S. 104.

34 Mo., K. & T. R. Co. v. Chittim (Tex. Civ. App.), 4o S. W. Rep. 23.
And see Lachner Bros. 7. Adams Exp. Co., 72 Mo. App. 13, cited supra.

See in general, in this subject, Hutchinson Carriers §§ 759-768 a.

8% Pacific Exp. Co. v. Lothrop (Tex. Civ. App.), 49 S. W. Rep. 868.

8 Hutchinson Carriers § 770 a; N. Y., L. E. & W. R. Co. wv. Estill, 147
U.S. 591; E. Tenn., V. & G. R. Co. v. Hale, 85 Tenn. 69; Galveston, H.
& S. A. R. Co. v. Johnson (Tex.), 19 S. W. Rep. 867; Internat. & G. N.
R. Co. v. Dimmit Co. Pasture Co., 5 Tex. Civ. App. 186; Tex. & Pac. R.
Co. v. Arnold (Tex. Civ. App.), 40 S. W. Rep. 829; Smith v. New Haven
& N.R. Co., 12 Allen (Mass.) 531; St. Louis, I. M. & S. R. Co., v. Des-
hong, 63 Ark. 443.

Evidence of what the animals sold for at a place other than their des-
tination some time after their arrival is inadmissible: San Antonio & A.
P. R. Co. v. Wright (Tex. Civ. App.), 49 S. W. Rep. 147.

87 Gulf, C. & S. F. R. Co. v. Stanley, 89 Tex. 42.

DAMAGES. 517

caused by their improper treatment by the carrier and any
extra expenses to which he is put in attending to them.33*
The reasonable expense of efforts to cure the animals is re-
coverable.22® On the other hand, the fact that with reason-
able care on the part of the owner the damages could have
been mitigated by recuperation should be considered.24° In
an action for injuries to a mare, causing the death of a colt,
evidence of the value of the colt, had it been born uninjured,
is inadmissible as speculative.?* But the fact that mares
were with foal and thus predisposed to injury is to be con-
sidered in calculating the damages.*4?

Where an animal is lost, killed or rendered worthless its
value at the place of destination in the condition in which
it should have been delivered is recoverable, deducting in the
proper cases the value of the carcass, where that is appreci-
able.248 Where the carcass of an animal that had been ac-
cidentally killed on a voyage was not claimed by the shipper’s
agent who was present at the arrival of the steamer, and the
company sold it to the best advantage, it was held that ‘this
was not a wrongful conversion rendering the company liable
to the defendant on a counter-claim in trover.*#* But a

*8 Gulf, C. & S. F. R. Co. v. Godair, 3 Tex. Civ. App. 514.

*° Galveston, H. & S. A. R. Co. v. Tuckett (Tex. Civ. App.), 25 S. W.
Rep. 670.

© Houston & T. C. R. Co. v. Williams (Tex. Civ. App.), 31 S. W. Rep.

556.
The fact that the consignee did not use ordinary care to avoid injury

caused by the defendant’s negligence will not preclude the recovery of
damages actually occasioned by such negligence which could not have
been prevented by ordinary diligence on the plaintiff's part: Belcher v.
Mo., K. & T. R. Co. (Tex.), 50 S. W. Rep. 559.

“Tex, & Pac. R. Co. v. Randle (Tex. Civ. App.), 44 S. W. Rep. 603.

* Gulf, W. T. & P. R. Co. v. Staton (Tex. Civ. App.), 49 S. W. Rep. 277.

“8 Hutchinson Carriers § 769; Sturgeon v. St. Louis, K. C. & N. R. Co.,
65 Mo. 569; Atchison, T. & S. F. R. Co. v. Grant, 6 Tex. Civ. App. 674;
Tex. & Pac. R. Co. v. Sims (Tex. Civ. App.), 26 S. W. Rep. 634; Same
v. Klepper (Tex. Civ. App.), 24 id. 567; Houston & T. C. R. Co. v. Wil-
liams (Tex. Civ. App.), 31 id. 556.

*4 Tondon & North-Western R. Co. v. Hughes, 26 L. R. Ir. 165.

518 CARRIERS OF ANIMALS.

company that has realized a sum of money by the sale of
carcasses of pigs destroyed on a voyage is liable for money,
had and received.?4° And a shipper who has effected such a
sale must be allowed a reasonable amount for his time and
trouble.#*®

Where cattle are permitted to escape during transporta-
tion, the cost of services and expenses in recapturing them
is recoverable as part of the damages.***

Where the carrier refuses to accept or convey the stock,
the measure of damages is the difference between the market
value at their destination at the time when they should have
arrived there and their value at the same time at the place
of shipment, less the freight.24* In a case where the com-
pany’s failure compelled the plaintiff to send his horses that
were not in good condition by road, it was held that the
measure of damages was the deterioration which the horses,
if they had been in ordinary condition, would have suffered
by the journey, and the time and labor expended on the
road.34#9

Where there has been unreasonable delay, the measure of
damages is the difference between the market value of the
stock at the place of destination on the day on which they
should have arrived and on the day of their actual arrival,
with interest from the former time.*®° But evidence is not

© Hayes v. South Wales R. Co.,9 Ir. C. L. R. 474.

*® Dean v. Chic. & N. R. Co., 43 Wis. 305.

™T North Mo. R. Co. v. Akers, 4 Kan. 453.

As to the liability of a company for damages done by a dog that es-
caped from the company’s porter while it was being led to rejoin the train,
see Gray v. North British R. Co., 18 Rettie (Sc. Ct. Sess.) 76.

*8 Hutchinson Carriers § 774.

This rule seems to have been wrongly applied in Gelvin v. Kan. City,
S.J. & C. B. R. Co., 21 Mo. App. 273, where the damages were really
caused by delay.

“° Waller v. Midland Great West. R. Co., 4 L. R. Ir. 376.

*° Hutchinson Carriers § 771; Hudson v. North. Pac. R. Co. 92 Ia. 231;
Gulf, C. & S. F. R. Co. v. McCarty, 82 Tex. 608; Tex. & P. R. Co. v.
Truesdell (Tex. Civ. App.), 51 S. W. Rep. 272; The Caledonia, 50 Fed.

DAMAGES. 519

admissible to show a decline in the market value between the
time of arrival and the time of sale.3>4

It has been held in Texas that where a petition does not ask
for damages resulting from a fall in the market, evidence
tending to show such a fall and consequent loss is inadmis-
sible.2°* And in Missourt it was held that it must be averred in
the petition that the shipper informed the agent or that he
knew at the time that the stock were designed for sale in
market at the point of destination: such knowledge may be
inferred from all the circumstances, but must be alleged.***
And similar proof was required in a Maryland case.?*+

The fact that the loss owing to the depreciation in the
market did not occur while the animals were in the carrier’s
possession is not material, if the price fell while they were in
transit and the loss is the direct consequence of the carrier’s
delay.2°5 Where there is no difference in market values the
plaintiff can recover only for injury in fitness for market
caused by the delay, and the cost of feeding and caring for the
stock in the meantime.** And a shipper cannot recover if,

Rep. 567; The Suffolk, 31 id. 835; Ill. Cent. R. Co. v. Simmons, 49 HL.
App. 443.

Contra, Vaughn v. Wabash R. Co., 62 Mo. App. 461, citing no author-
ities. The correct rule is laid down, however, in Glascock v. Chic. & A.
R. Co., 69 Mo. 589; Sturgeon v. St. Louis, K. C. & N. R. Co., 65 id. 569.

Damages resulting from loss of weight and physical injury caused by
non-shipment should, in proper cases, be included: Gann v. Chic. Great
Western R. Co., 72 Mo. App. 34. So should the extra expenses rendered
necessary by the negligent mixing of carloads of cattle while unloading
them: Kansas City Stock-Yards Co. v. Hawkins (Kan. App.), 55 Pace.
Rep. 470.

#1 Glascock v. Chic. & A. R. Co., supra.

® Gulf, C. & S. F. R. Co. v. McAulay (Tex. Civ. App.), 26 S. W. Rep.
475. Sed quare?

®8 Gelvin v. Kan. City, S. J. & C. B. R. Co, 21 Mo. App. 273, a case
where, as was said, supra, the rule laid down for measure of damages was
that applicable where the carrier refuses to accept the stock, whereas, ac-
cording to the facts, it was guilty here of unreasonable delay only.

*4 Phila, W. & B. R. Co. v. Lehman, 56 Md. 209.

®5 Sisson v. Cleveland & T. R. Co., 14 Mich. 489.

*%° Newport News & M. V. R. Co. wv. Mercer, 96 Ky. 475. And see Mo.

526 CARRIERS OF ANIMALS.

after knowing of the delay in the time of sailing of a vessel,
the cattle could have been sold without loss.*°* The fact
that a part of the stock brought more at the destination on
account of the delay should be considered in reduction of the
loss sustained on the others.®°®

The shipper cannot ordinarily recover for a loss of profits
unless he has informed the carrier of the intended use to
which the stock is to be put. Thus, where one failed to give
notice of an outstanding contract by which his jack was to
have been put to mares, he could not recover for his loss sus-
tained by his inability to carry it out.2°° So, where the ani-
mals are to be sold to a third person under contract, special
damages cannot be recovered of the carrier unless he has
been informed of the fact or of the importance of their reach-
ing their destination in time.2°° But where the carrier has
notice that dogs are shipped to a dog-show and, by reason of
the delay, they arrive too late to compete, the shipper may re-
cover his anticipated profits.?*

The measure of damages for the loss of a horse is his
market value in cash, and not what the owner might have
made by using him as a racer on the track.3® But evidence
is admissible of the value of a trotting mare before and after
the injury and also of her speed.?®

Pac. R. Co. 7. Paine, 1 Tex. Civ. App. 621; Louisv. & N. R. Co. v. Rob-
inson (Ky.), 36 S. W. Rep. 6.
** Goldsmith v. Tower Hill Steamship Co., 37 Fed. Rep. 806.

** Gulf, C. & S. F. R. Co. v. Hughes (Tex. Civ. App.), 31 S. W. Rep.
AIL.

Cf. the dictum in Vaughn v. Wabash R. Co., 62 Mo. App. 461, cited
supra.

*° Chic., B. & Q. R. Co. v. Hale, 83 Ill. 360.

* Gulf, C. & S. F. R. Co. v. Cole, 4 Tex. App. (Civ. Cas.) 97. And see
Hamilton v. West. N. C. R. Co., 06 N. C. 308; Gulf, C. & S. F. R. Co.
v. Martin (Tex. Civ. App.), 28 S. W. Rep. 576; Tex. & Pac. R. Co. v.
Randle (Tex. Civ. App.), 44 id. 603.

*™ Kennedy v. Amer. Exp. Co., 22 Ont. App. 278. See Welch v. Great
Western R. Co., 106 L. T. 218.

*? Ormsby v. Un. Pac. R. Co., 2 McCrary C. Ct. (U. S.) 48.

*° Reed v. Rome, W. & O. R. Co., 48 Hun (N. Y.) 231.

DAMAGES. 521

The measure of damages for the destruction by the carrier
of a collection of birds and animals in a museum is the value
of such specimens at the nearest market, rather than the value
of the owner’s time in collecting them.?*4

Evidence of the value of the stock at other places than their
destination is inadmissible.2°° And it was said in a Texas case
that a stipulation by the company that the value of the cattle
shipped, if lost, should be paid by them at the value at the
place of shipment was against public policy and void.3®
But in Illinois such an agreement has been upheld.*®

Various incidental losses may be recovered in actions for
injury or delay. Thus the shrinkage in weight of the stock is
an item of damage.?6* And so is the cost of keeping the ani-
mals;?® but only to the day when the plaintiff sells them or
could have sold them.?*° Where cattle were to be kept in pas-
ture at their destination, the excess in cost of keeping them at
the place of delay over that at the place of destination is re-
coverable, and not the entire cost of herding and pasturage at
the point of delay.27! Damages for delayin arriving to receive
a cargo of cattle are only such expense as keeping the cattle
during the period of delay and the additional insurance that
the shipper may have had to pay for the increased risk.?”*

*“* Yoakum v. Dunn, 1 Tex. Civ. App. 524.

85 Tex, & Pac. R. Co. v. Barber (Tex. Civ. App.), 30 S. W. Rep. 500;
Hendrick v. Boston & A. R. Co., 170 Mass. 44.

“Mo. Pac, R. Co. v. Edwards, 78 Tex. 307. And see Internat. & G. N.
R. Co. v. Parish (Tex. Civ. App.), 43 S. W. Rep. 1066.

“7 Chic. R. I. & P. R. Co. v. Harmon, 17 Ill. App. 640. And see In-
dianapolis, B. & W. R. Co. v. Strain, 81 Ill. 504.

*6 Sturgeon v. St. Louis, K. C. & N. R. Co., 65 Mo. 569; Ft. Worth &
D. C. R. Co. v. Greathouse, 82 Tex. 104; Goldsmith v. Tower Hill Steam-
ship Co., 37 Fed. Rep..806; The Caledonia, 50 id. 567; Ill. Cent. R. Co.
v. Simmons, 49 Ill. App. 443.

*9 Goldsmith v. Tower Hill Steamship Co., supra; Ill. Cent R. Co. v.
Simmons, supra.

3 Ayres v. Chic. & N. R. Co., 75 Wis. 215.

™ Gulf, C. & S. F. R. Co. v. Hume, 87 Tex. 211. ;

*2 The J. C. Stevenson, 17 Fed. Rep. 540. Semble, that under the cir-

522 CARRIERS OF ANIMALS.

It was held in Texas that the plaintiff casmmot recover,
where cattle are killed in transit, the freight paid, in addition:
to their value at the place of destination.2"* But in a Federal
case it was held that damages for cattle lost at sea through
the negligence of the ship include the freight paid in advance:
and the pro rata premiums of insurance.27* Where, however,
the shippers of cattle signed a general contract stipulating
that freight was payable thereon on the number shipped,
whether delivered alive or not delivered at all, and was pay-
able in Liverpool on the arrival of the vessel and that freight
should be paid by the consignees, it was held that, upon the
loss of the vessel and cattle before arrival, the shippers were
liable for the full amount of the freight.37®

Live animals such as horses and cattle are “goods” within
the meaning of a statute providing that where goods are car-.
ried on deck all dues payable on the ship’s tonnage should
be payable as if there were added to the registered tonnage
the tonnage of the space occupied by such goods. And im
computing such tonnage, the measurement is to include only
the space occupied by the animals themselves, fair allowance
being made for their free bodily movements, and is not to in-
clude the sheds or pens in which they are confined.276

cumstances the shipper would have a lien on the vessel for such damages:
Ibid.

™ Gulf, C. & S. F. R. Co. v. Kemp. (Tex. Civ. App.), 30 S. W. Rep.
714; Galveston, H. & S. A. R. Co. v. Kelley (Tex. Civ. App.), 26 id. 470.

*“ Brauer v. Compania de Navign. La Flecha, 61 Fed. Rep. 860, affirmed.
in Same v. Same, 35 U. S. App. 44 and Compania de Navign. La Flecha v.
Brauer, 168 U. S. 104.

*" The Queensmore, 53 Fed. Rep. 1022.

*° Richmond Hill Steamship Co. v. Trinity House Corpn., [1896] 1 Q.
B. 493; [1806] 2 Q. B. 134.

TITLE VI.

CRUELTY—GAME LAWS.

CHAPTER 1,

CRUELTY AND MALICIOUS MISCHIEF.

120. Cruelty to animals in general. 124. Societies for the prevention of
121. What animals are protected. cruelty; charitable bequests.
122. What acts are prohibited. 125. Indictment for cruelty.

123. Injuring for sport; dishorning 126. Malicious mischief to animals.
. and spaying. 127. Proof of malice; indictment.

120. Cruelty to Animals in General—Having discussed the
various rights and liabilities of the owners of animals, we
come now to the consideration of what are ethically, though
not technically, the rights of the animals themselves. It is
said in a leading periodical: “Although the courts may differ
as to what is a ‘wanton’ killing, and what ‘unnecessary’
cruelty, they all treat the subject from the standpoint of hu-
manity, and allow a man a dominion over other ‘living
creatures’ that cannot be reconciled with the idea that the
latter have any rights—either to liberty, life or security from
pain. The conclusion, therefore, must be that cruelty to
animals is illegal, not because of its effect on the animals, but
because of its effect upon men.”? Whether in the light of
the evolution of legal principles this theory may or may not
be disputed does not concern us here. Practically the ques-

*38 Cent. L. Jour. 166.
523

524 CRUELTY AND MALICIOUS MISCHIEF.

tion is free from difficulty. By the statutes of all civilized
countries cruelty to animals is, within certain restrictions,
made a punishable offense and the only dispute that can arise
is as to the definition of those restrictions.

Closely allied to the prohibitions against Cruelty are those
against Malicious Mischief to animals. In the latter case
the animal is considered as property that is being injured
or destroyed, but, as actual malice against the owner need not
necessarily be shown, the two offenses are so nearly related
that, though some of their features should be discussed sep-
arately, much of the reasoning applicable under the one head
applies to the other as well.

With regard to the laws against cruelty, it has been well
said in an Arkansas case: “They are not made for the pro-
tection of the absolute or relative rights of persons or the
rights of men to the acquisition and enjoyment of property,
or the peace of society. They seem to recognize and attempt
to protect some abstract rights in all that animate creation,
made subject to man by the Creator, from the largest and
noblest to the smallest and most insignificant. The rights
of persons and the security of property and the public peace
are all protected by other laws, with appropriate sanctions.
The objects of the two classes should not be confounded.
It will lead to hopeless confusion. The peculiar legislation
we are now called to discuss must be considered wholly ir-
respective of property, or of the public peace, or of the incon-
veniences of nuisances. The misdemeanors attempted to be
defined may be as well perpetrated upon a man’s own prop-
erty as another’s, or upon creatures the property of no one;
and, so far as one act is concerned, it is all the same whether
the acts be done amongst refined men and women whose sen-
sibilities would be shocked, or in the solitude of closed rooms
or secluded forests. It is in this view that such acts are to
be construed, to give them, if possible, some beneficent effect,
without running into such absurdities as would, in the end,
make them mere dead letters. A literal construction of them

CRUELTY TO ANIMALS IN GENERAL. 525

would have that effect. Society, for instance, could not long
tolerate a system of laws which might drag to the criminal
bar every lady who might impale a butterfly or every man
who might drown a litter of kittens, to answer there and show
that the act was needful. Such laws must be rationally con-
sidered with reference to their objects, not as the means of
preventing aggressions upon property, otherwise unlawful;
nor so as to involve absurd consequences, which the legisla-
ture cannot be supposed to have intended. So construed, this
class of laws may be found useful in elevating humanity, by
enlargement of its sympathy with all God’s creatures and thus
society may be improved. Although results in other States
and in England have not, as we judge from the paucity of
decisions, been such as to excite sanguine hopes, yet to a
limited extent the objects of the laws may be practically ob-
tained. It is the duty of the courts to co-operate to that end,
so far as the rules of construction may warrant. .. From
the view we have taken of the nature and scope of this class
of acts, it is obvious that the term ‘needless’ cannot be reason-
ably construed as characterizing an act which might by
care be avoided. It simply means an act done without any
useful motive, in a spirit of wanton cruelty, or for the mere
pleasure of destruction. . . . All acts of killing are not ‘need-
less’ in the meaning of the statute, which are unlawful. A
man, for instance, might kill his neighbor’s sheep for food,
which would be unlawful and either a trespass or felony,
according to the circumstances; but such killing could not,
with any show of reason, come within the intention of the
act in question. The lawfulness or unlawfulness of the act
has really no bearing upon its character, as charged.” *

The question as to the nature of the acts constituting
cruelty is discussed in §§ 122, 123, infra. It was said in a
New York case that wanton cruelty to an animal was a mis-
demeanor at the common law;? and in a Federal case it was

* Grise v. State, 37 Ark. 456, 458.
* Stage Horse Cases, 15 Abb. Pr. N.S. (N. Y.), 51.

526 CRUELTY AND MALICIOUS MISCHIEF.

held that public cruelty to a cow and beating her to death in
or near a public street was an indictable offense at the com-
mon law as a public nuisance and that it was unnecessary for
the prosecution to prove that the animal died of the beating.*
The established opinion is, however, that cruelty to animals
as such was not indictable at the common law, but that the
laws on the subject are the result of modern civilization.?
“The idea of protecting animals from cruelty for their own
sake is comparatively modern. Formerly the only protection
animals possessed was given them under the law against
malicious injuries to property; and Mr. Justice Heath, in the
case of Reg. v. Parker (July Sessions, 1794), says: ‘In order to
convict a man of barbarous treatment of a beast, it should
appear that he had malice towards the prosecutor.’ The
project of remedying this state of affairs secured the valuable
assistance of Lord Erskine’s eloquence in 1809, but though a
bill twice received the approval of one House, it was on the
first occasion thrown out by the other . . . and ultimately
dropped.” °

This subject will be more fully considered in treating of
Malicious Mischief in § 126, infra.

121. What Animals are Protected. Before treating of the
various forms of cruelty, a few words should be said as to the
definitions given by the courts to the terms “animals,” “do-
mestic animals,” etc., as denoting the objects protected by the
statutes. ;

Linnets caught, kept in captivity and trained to act as de-
coy birds for the purpose of catching other birds, were held
to be “domestic animals,” within the meaning of the statute
against cruelty." On the other hand, a tame sea-gull used

“U.S. uv. Jackson, 4 Cranch C. Ct. (U. S.) 483.

* Peo. v. Brunell, 48 How. Pr. (N. Y.), per Sutherland, J.; 12 Crim. L.
Mag. 378; 1 Bish. New Crim. Law, § 504.

* Article in Law Gazette reprinted in 28 Ir. L. T. 280, 301, 310, 320.

For Lord Erskine’s speech in full, see 2 Car. L. Repos. 364.

"Colam v. Pagett, 12 Q. B. D. 66, where it is said: “These words

WHAT ANIMALS ARE PROTECTED. 527

by a photographer in his business was held not to be a do-
mestic animal,” and the case last cited was distinguished as
there “the linnets were trained to perform a particular serv-
ice which cannot be correctly asserted of the sea-gull in the
present case.” & So, young, unacclimated parrots were held
not to come within the protection of the statute;® nor lions
kept in a cageand made to give a public performance by means
of fear.1° In the latter case, Wright, J., said: “I agree with
the argument for the appellant to this extent, that animals,
however wild by nature, may become domestic under some
circumstances. I should think that leopards trained to hunt
for their master, otters trained to catch fish, and elephants
trained to assist in the capture of wild elephants, might be
held to be domestic. Speaking for myself, I should be pre-
pared, if necessary, to say that they were. Domestic is not
the same thing as domesticated, but I think that an animal
ought to be regarded as a domestic animal which is of a kind
ordinarily domesticated, and which is in fact itself domesti-
cated.”

Lizards, known as American chameleons, are not made
domestic by the fact that they are bought and sold as pet
ornaments and toys."

Coursing with dogs and cruelly torturing wild rabbits
which had been caught in nets five or six days before and
since kept in confinement, was held not to be cruelty to
“domestic animals.” 1?

A domestic cock is an “animal” within the protection of

would indicate, I think, any pet bird such as a parrot, canary or
limnet.”

® Yates v. Higgins, [1896] 1 Q. B. 166.

* Swan v. Saunders, 44 L. T. N. S. 424. And see 71 L. T. 117.

Harper v. Marcks, [18904] 2 Q. B. 319, where it is said: “It is impossi-
ble to say that a wild animal kept in a cage becomes by the mere fact
a domestic animal.”

In re Racey (Montreal Police Court), 49 Alb. L. Jour. 252; S. PB;
C. A. v. Graetz, 17 Leg. News (Can.) 74.

# Aplin v. Porritt, [1893] 2 Q. B. 57.

528 CRUELTY AND MALICIOUS MISCHIEF.

the statute; }° even where this enumerates a list of quadrupeds
only and “other domestic animals.” 1 But this latter de-
cision was dissented from in a Scotch case.'®

So, a fox is protected by the statute. “The word ‘animal’
must be held to include wild and noxious animals, unless the
purpose of the statute or the context indicates a limited mean-
ing.” 16 And the word includes a dog not listed for taxa-
tion.17

A rat is not a “domestic animal” within the meaning of the
English statute against cruelty. Under the English law “a
scientific man may be punished heavily for performing a pain-
ful experiment upon a living rat in the cause of science, but
a laborer may inflict just as severe pain upon the rat out of
mere wantonness with impunity.” 78

The word “cattle” in statutes prohibiting cruelty and ma-
licious mischief has been held to designate all domestic quad-
rupeds collectively,1® and to include horses, mares and
colts,?° geldings,”? pigs,?” asses,?* and goats.** Buta buffalo,
though domesticated, has been held not to come within the
definition.*®

* Peo. v. Klock, 48 Hun (N. Y.) 275; State v. Bruner, rir Ind. 08;
Bates v. McCormick, 8 Ir. Jur., N. S., 239.

* Budge v. Parsons, 3 B. & S. 382.

* Johnstone v. Abercrombie, 3 White Justic. Rep. (Sc.) 432. And see
94 L. T. 213.

* Com. v. Turner, 145 Mass. 2096.

State v. Giles, 125 Ind. 124. And see Wilcox wv. State, tor Ga. 563.

* 42 Solic. Jour. 503 [quoted in 57 Alb. L. Jour. 374], citing and com-
menting on a magistrate’s case.

“ State v. Pruett, 61 Mo. App. 156.

“Rex v. Paty, 2 Bl. 721; Rex v. Moyle, 2 East P. C. 1076; State v.
Hambleton, 22 Mo. 452. But see Brown wv. Bailey, 4 Ala. 413.

*' Rex v. Mott, 2 East P. C. 1075.

* Rex v. Chapple, R. & R. C. C. 77; State v. Pruett, supra. And see
Decatur Bank v. St. Louis Bank, 21 Wall. (U. S.) 204.

* Rex v. Whitney, 1 M. C. C. 3. And see Ohio & M. R. Co. v. Bru-
baker, 47 Ill. 462; Toledo, W. & W. R. Co. v. Cole, 50 id. 184.

* State v. Groves, 119 N. C. 822.

* State v. Crenshaw, 22 Mo. 457. See, for the nomenclature of animals
in larceny statutes, §§ 55-57, supra.

a

WHAT ACTS ARE PROHIBITED. DBs

122. What Acts Are Prohibited—tIn an article already
quoted, the reasons that will justify the infliction of pain are
said to be: 1. To save an animal’s life; a fortiori to save
human life. 2. To cure the animal of disease, sickness, in-
jury or malformation; a fortiori with the view of curing
human disease, etc. 3. To assist development or proper
growth, fit the animal for ordinary use, or to fulfil the part for
which by common consent it is designed. Other doubtful
reasons are: I. For convenience. 2. For profit or raising
prices. 3. To comply with fashion or custom.?®

The rule has been elsewhere stated in various ways:

“The cruelty aimed at by the statute is the unnecessary”
abuse of the animal. Abuse may be necessary when it has-
for its object to make the animal more fit for the service of
man, but this implies the service of mankind in general, and
not the profit or convenience of individuals; and even wher.
in this sense it is necessary, yet to be justified it must also be-
reasonable. In other words, there must first be an object
which the law will allow, and then the pain inflicted in obtain-
ing it must not be out of proportion to its importance. There’
remains the further qualification that where the object is
lawful, yet it may not be sought to be attained in a painful
manner where this is really useless, or where a less painful
one is equally efficacious, and the fact that the painful method.
is customary or the only one which the operator himself
knows or believes in will not be an excuse.” ?”

“Undoubtedly every treatment of an animal which inflicts
pain, even the great pain of mutilation, and which is cruel in
the ordinary sense of the word, is not necessarily within the
act. .. . Whenever the purpose for which the act is done
is to make the animal more serviceable for the use of man
the statute ought not to be held to apply. As was said by
Wightman, J., in Budge v. Parsons,”® the cruelty intended
by the statute is the wnecessary abuse of the animal.” *°

Law Gazette, quoted in 28 Ir. L. T. 301. 33 Sol. Jour. 485.
* 3B. & S. 382. * Gleasby, B.,in Murphy «. Manning, 2 Ex. D. 307, 313-
34

530 CRUELTY AND MALICIOUS MISCHIEF.

‘Any operation upon an animal which causes pain is ‘cruel
ill-treatment, abuse or torture of the animal. . unless
the act be justified by showing that it was done for some
lawful purpose legalized by custom, for the benefit of the
animal itself, or for making it more serviceable for the law-
ful use of man.” 3°

The intention to inflict the injury is not essential: there-
fore in a prosecution for cruelly beating and killing an ani-
mal, evidence that the defendant voluntarily struck it in a
cruel manner and killed it, was held sufficient for conviction,
though he did not intend to kill it2! And in a Massa-
chusetts case, it is said: ‘‘The motive of intending to inflict
injury or suffering is not, by the terms of the statute, made
an essential element of the offense. And although the most
common case to which the statute would apply is un-
doubtedly that in which an animal is cruelly beaten or tor-
tured for the gratification of a malignant or vindictive
temper, yet other cases may be suggested where no such ex-
press purpose could be shown to exist, which would be within
the intent as well as the letter of the law. Thus, cruel beat-
ing or torture for the purpose of training or correcting an
intractable animal; pain inflicted in wanton or reckless disre-
gard of the suffering it occasioned and so excessive in degree
as to be cruel; torture inflicted by mere inattention and crim-
inal indifference to the agony resulting from it, as in the case
of an animal confined and left to perish from starvation, we
can have no doubt would be punishable under the statute,
even if it did not appear that the pain itself was the direct and
principal object. Severe pain inflicted upon an animal for
the mere purpose of causing pain or indulging vindictive
passion is cruel. And so it is if inflicted without any justi-
fable cause and with reasonable cause to know that it is pro-
duced by the wanton or reckless conduct of the person who

-occasions it.” °2

” 63L.T. 38. ® Statev, Hackfath, 20 Mo. App. 614. See Peo. v. Ross, infra.
“Com. v. Lufkin, 7 Allen (Mass.) 579, per Hoar, J. And see Com. v.

WHAT ACTS ARIE PROHIBITED. 531

But a beating for the purpose of training or discipline,
though unnecessarily severe, has been held not to constitute
an offense under the statute.** And where a cabman,
intending to beat his horse for refusing to draw a load, struck
it a single blow upon the neck which killed it, he was held
to be rightfully acquitted if the evidence showed no deliber-
ation to kill the animal but only to chastise it.*#

Some knowledge of the nature of the act is, however, es-
sential. Thus, driving a horse while ignorant that it is sick
or sore is not per se tormenting or torturing it.2> And in an
indictment against a minor for cruelly over-driving a horse,
an instruction that he was presumed to intend the natural
consequence of his acts, but that, if in the exercise of his judg-
ment he thought he was not over-driving, he must be ac-
quitted, was held correct.26 Where the receiver of a large
consignment of cattle, which he was supposed to receive and
attend to personally, had not removed the head-ropes from
cattle arriving in the port on Saturday until the following
Monday, and was convicted of cruelty, it was held that as
there was no evidence of guilty knowledge or of his wilfully
abstaining from knowledge, the conviction must be
quashed.?* And where certain horses in a colliery were
worked while suffering from raw wounds, it was held that
the certificated manager could not be convicted when he and

Magoon (Mass.), 51 N. E. Rep. 1082, where it was held that the defend-
ant’s guilt does not depend on whether he thought he was unnecessarily
cruel, but whether he was so in fact and did unnecessarily cruel acts. See,
also, Duncan v. Pope, 80 L. T. N. S. 120.

* State v. Avery, 44 N. H. 302.

4 Peo. v. Ross. 3 N. Y. City Hall Ree. 191, cited in Stage Horse Cases,
15 Abb. Pr. N.S. (N. Y.) 51. 63. Cf. State 7. Hackfath, supra.

Where a policeman struck a runaway horse with a stone, the question
of cruelty, it was held. should be left to the jury: State v. Isley (N. C.),
26 S. E. Rep. 35.

* Stage Horse Cases, 15 Abb. Pr. N. S. (N. Y.) 51.

%® Com. v. Wood, 111 Mass. 408. And see State 7. Roche, 37 Mo. App.
480.

“ Elliott v. Osborn, 65 L. T. N. S. 378.

532 CRUELTY AND MALICIOUS MISCHIEF.

the owner were not present and had no knowledge of the
state of the horses.28 On the other hand where, in the ab-
sence of the licensed owner of a slaughter-house, his foreman,
disobeying orders to save himself trouble, slaughtered a sheep
in the pound in view of other sheep, contrary to a by-law, it
was held that the by-law was good and that the owner was
liable for the act of his servant which was committed within
the scope of his employment, though contrary to orders.*®

Where F. conveyed nine sheep in a wagon and one broke
its leg on getting out and F. drove them into a pen at the
market for sale, put that sheep with the others and they
trampled on it, it was held that, though the facts showed care-
lessness, there was no evidence of F.’s causing the sheep to be
tortured.*°

The driver and conductor of a horse-car are liable for over-
driving the horses and overloading the car.*1. The use of a
tight check-rein has been held, though with doubtful author-
ity, not to be cruelty.**

On a complaint for unnecessarily failing to provide a horse
with proper food, drink and protection from the weather,
where the evidence was that the defendant unnecessarily left
the horse harnessed to a carriage in a wood, where it re-
mained all night uncared for and actually without food and
drink for more than twenty-four hours except what it ob-
tained by browsing, it was held that he was rightly con-
victed. It is not essential that the animal should have

* Small v. Warr, 47 J. P. 20.

” Collman vw. Mills, [1897] 1 Q. B. 306.

“Westbrook v. Field, 51 J. P. 726.

“ Peo. v. Tinsdale, 10 Abb. Pr. N. S. (N. Y.) 374.

“S.P.C. A. v. Lowry, 17 Leg. News (Can.) 118. In 30 Can. L. Jour.
581, it is said: “It is scarcely necessary to point out the manifest fallacies
of this extraordinary decision. Even if a check is necessary to manage a
horse when driving, it is not, therefore, necessary when a horse is ‘stand-
ing at ease’: nor does ill-treatment and cruelty cease to be ill-treatment
and cruelty because it is said to be necessary to make the unfortunate
subject of it look handsomer or bring a higher price.”

WHAT ACTS ARE PROHIBITED. 533

cruelly suffered.*? But where parrots were sent by rail in a
box without water for ten hours, there was held to be no evi-
dence of cruelty.4* Grove, J., said: “Cruelty has been de-
fined as the unnecessary abuse of an animal. I should pre-
fer to define the word as unnecessary ill usage by which the
animal substantially suffers. ... Cruelty does not mean
any inconvenience or discomfort incidental to travelling
from one place to another which may happen to the animal.
To keep a bird in September without water for one night is,
without frittering away the effect of the statute, not such
cruelty as to be punishable.”

Administering poison to animals comes within the statutory
meaning of “cruelty.” *°

The omission to kill an animal which has been lawfully
wounded, is in great pain and incurably ill, is not necessarily
an offense. This was held in a case where the defendant
thought he had killed a dog and dragged it into a road
where he found it to be still alive and left it. It was held that
the statute did not apply to such passive cruelty but only to
intentional cruelty.4® So, the owner of a horse incurably
diseased and in pain, who omits to have it slaughtered is not
guilty: otherwise, where he keeps it in such a manner that it
suffers intense pain in moving around a field to graze. He
is then as guilty as if he had actually tortured it with his own
hand.*7 So, chasing a pig, hacking it with a carpenter’s axe

“Com. v. Curry, 150 Mass. 509. See, also as to failure to provide with
shelter, Ferrias v. Peo., 71 Ill. App. 559.

“ Swan v. Saunders, 44 L. T. N. S. 424.

The decision was based partly, as is said supra, on the ground that the
parrots in question were not “domestic animals.”

“Peo. v. Davy, 32 N. Y. Suppt. 106.

The word “land” in an act against placing poisoned flesh or meat “in
or upon any land” is not limited to merely open land but applies to en-
closed gardens, buildings and dwelling-houses: Rogers v. Hull, 60 J. P.
584.

* Powell v. Knight, 38 L. T. N. S. 607.

* Everitt v. Davies, 38 L. T. N. S. 360.

534 CRUELTY AND MALICIOUS MISCHIEF.

and leaving it for two days before killing it, was held to be
cruelty.*®

A dog, though not a beast of burden, may be lawfully used
in a treadmill or other serviceable employment, but, if he is
cruelly used, the employer is criminally liable.*°

Cropping a dog’s ears was held in one case to be cruelty; °°
and a defendant has been fined for docking with instruments
not very sharp.5!_ Concerning the latter operation it has
been said: “Compliance with fashion merely is no excuse for
the infliction of pain. ‘Docking’ said Mr. Justice Hawkins

. in Ford v. Wiley,®? ‘is another painful operation which
may occasionally be justified, but I hold a very strong
opinion against allowing fashion or the whims of individuals
to afford a justification for such painful mutilation.” We may
indeed take it that ‘docking’ as formerly performed on a
grown horse is illegal, but if it is performed on the animal as
a foal, and with proper care, possibly there are other reasons
strong enough to make it justifiable, particularly protection
against accidents arising from entanglements of the reins.’ **

The offenses of “maiming,” and “disfiguring” animals will
be treated of under the head of Malicious Mischief.

Cutting off a cock’s comb and causing great pain cannot
be justified on the ground that it is done for cock-fighting
or winning prizes.5+

Dislocating the limbs of animals to be slaughtered while
they are yet alive and plunging them, while alive, in boiling
water are criminal offenses.®> In a Scotch case it seems to be
held that the Jewish method of slaughtering a bullock. i. e.,

* Adcock v. Murrell, 54 J. P. 776.

“Peo. v. Spec. Sessions, 4 Hun (N. Y.) 441.

"2 Scots L. T. 460, citing an English Police Court case.

” Reg. v. Fownes, 58 J. P. 185.

“23 Q. B. D. 203.

“ Law Gazette, quoted in 28 Ir. L. T. gor.

“ Murphy v. Manning, 2 Ex. D. 307. And see 63 L. T. 38.
™ Davis v. S. P. C. A., 16 Abb. Pr. N. S. (N. Y.) 73.

WHAT ACTS ARE PROHIBITED. 5385

by a swift, deep “throat-cut,”” without previously stunning the
animal, is not “cruelty.” 5°

The intoxication’ of defendant is no defence for his
cruelty.°’ But the fact that the animal was attacking or tres-
passing is in many cases a justification for acts that would
otherwise be indictable. One may use necessary means to
drive trespassing animals out of his land and if this results in
injury to them he is not guilty of cruelty or wilful or wanton
mischief.°®& So, one who set on his premises a steel trap
which caught and injured another’s dog depredating, was
held not guilty of “needlessly torturing. or mutilating” the
animal.°® And where the defendant killed hogs ravaging
his crop in order to protect it and not from a spirit of cruelty,
he was held not guilty, and it was considered immaterial
whether he had a lawful fence or not. “The motive with
which the act was done is the test as to whether it was crim-
inal or not.” ® On the other hand it has been held that one
cannot justify killing a trespassing animal unless his field was
properly protected against such trespass.** And one who
pursued with dogs and killed a hog trespassing on his prem-
ises and injuring a growing crop was held guilty of criminal
trespass.°2. So it was held no defence to an indictment
for wounding a cow that the defendant shot her for entering
a field to destroy his crops at a point where the cow’s owner
should have kept the fence in repair. “It never was the
law that a man might shoot and kill his neighbor’s horses and

“Tn re Littman, (Aberdeen Police Court), cited in 37 Sol. Jour. 818
and 48 Alb. L. Jour. 383.

* State v. Avery, 44 N. H. 302.

%® Avery v. Peo., 11 Ill. App. 332. See also § 45, supra.

* Hodge v. State, 11 Lea (Tenn.) 528.

© Stephens wv. State, 65 Miss. 329. As to fencing against trespassing an-
mals, see §§ 70-73, supra.

" Jones v. State, 3 Tex. App. 228; Davis v. State, 12 id. 11.

® Thompson v. State, 67 Ala. 106. But see McMahan v. State, 29 Tex.
App. 348; Brewer wv. State, 28 id. 565.

‘536 CRUELTY AND MALICIOUS MISCHIEF.

cows for a trespass upon his crops.” ® “And the need-
less killing of chickens though done without torture is
cruelty under the North Carolina code, and it is no defence
that they were destroying peas in the garden of the defend-
ant’s father.*4 But in a Texas case it is said: “A trespass
may be wilful without being wanton, according to the inten-
tion. ..It may be done under such circumstances as
negative a wanton act, as where an animal is in the habit
of trespassing on a man’s crop and is killed during an act of
‘trespass, not from wantonness, but to prevent the destruction
-of his crop. In that case he might be liable to a civil suit for
damages, but not to a criminal prosecution for malicious mis-
chief. . . . This would not apply to a case where the crop
“was not properly protected against trespass by stock.’ ®&

Where a cow strayed into the defendant’s unenclosed field
_and he set his dogs to drive her out and, after she came out
‘on the public road, they bit and injured her, he was held
guilty of wilfully and unlawfully abusing another’s cattle in an
-enclosure not surrounded by a lawful fence.®¢

One does not wilfully or wantonly injure or kill an animal
‘who does it to protect his own animal that is being
-attacked.°* And where the defendant saw his father’s sheep
‘running at full speed and a number of hounds behind them,
-and shot one of the hounds, thinking the sheep were in
- danger, whereas the hounds were in fact following a fox trail
.leading across the pasture and had no designs on the sheep,

“State v. Butts, 92 N. C. 784. But see Reedy v. State, 22 Tex. App.
271; State v. Landreth, 2 N. C. Law Repos. 446.

“State v. Neal, 120 N. C. 613. “ Branch v. State, 41 Tex. 622.

“ State v. Godfrey, 97 N. C. 507.

“ Thomas v. State, 14 Tex. App. 200; Lane v. State, 16 id. 172; Farmer
‘uv. State, 21 id. 423, where it is said: “It is well settled law that if an
animal be killed or injured by a person in the necessary protection of such
-person’s property, after he had ineffectually used ordinary care to other-
wise protect such property, such killing or injuring will not be deemed
either wilful or wanton, within the meaning of the Penal Code.” And
sec Cornelius 7. Grant, 7 Rettie (Se. Ct. Justic.) 13.

WHAT ACTS ARE PROHIBITED. 5387

it was held that the defendant could not be convicted
of “cruelly beating or needlessly mutilating or killing” an ani-
mal. “If one destroys the life of an animal for the honest
purpose of protecting his person or property and the circum-
‘tances are of such a character as to readily justify the belief
that the measure is necessary to that end, the act would not
be in violation of the statute under consideration, though it
turned out that the apprehensions were in fact groundless
and the destruction of life not necessary.” ®§ One charged
with injuring animals running at large cannot set up as a de-
fence a law making it unlawful for them to run at large.®®

128. Injuring for Sport; Dishorning and Spaying.—With re-
gard to the taking of life for sport, it was said in a Missouri
case: “The universal love of so-called ‘sports’ which involve
the destruction of animal life cannot now be ignored in a
‘search after the legislative meaning in the act before us. Such
-diversions are not always resorted to for the means of human
sustenance. Yet they are not considered ‘needless’ for man’s
enjoyment of his legitimate dominion over the brute creation.
The individual who finds a healthful recreation in gunning or
fishing can hardly be told that this must not be gained at the
expense of his dumb subjects. The plea for life which he
might hear, if the gift of speech were not denied, would have
little weight against even the momentary triumphs of the
marksman who brings down his game. It may be that the
-day will come when sentiments of mercy and humanity shall
have so far advanced, with the progress of refining thought,
that the man who can so estimate a fleeting satisfaction above
a life, however lowly, which only omnipotence can bestow,
‘will be regarded as exceptionally selfish and cruel. But no
such feeling prevails as a basis for the interpretation of a legis-
dative enactment.” 7°

It was there held that pigeon-shooting was not an offense

“Hunt v, State, 3 Ind. App. 383. ® State v. Rivers, 90 N. C. 738.
* State v. Bogardus, 4 Mo. App. 215, 219, per Lewis, P. J.

538 CRUELTY AND MALICIOUS MISCHIEF.

against a statute making it an offense “needlessly to kill,” on
the ground that there was no mutilation, but on the contrary
the birds were killed in a more humane way than by wringing
their necks, the ordinary method.

So, in Pennsylvania, a member of a gun club who at a
pigeon shooting match, shoots at and wounds a pigeon let
loose from a trap, which is immediately killed on discovery
of its wounded condition, is not guilty of “wantonly or cruelly
ill-treating or abusing” it. There was held to be no real dis-
tinction between a bird in a cage and one in a wood which
a sportsman would undoubtedly have the right to kill. “The
right to kill the pigeon was and must be conceded, and there
is no finding of the jury, that its suffering was greater because
of the manner of its death than if it had been killed in some
other way.” 7! There is a similar decision in Canada;"? but
in North Carolina pigeon-shooting was held to be an offense
under the code defining ‘cruelty’ as including every act,
omission and neglect whereby unjustifiable physical pain,
suffering or death is caused or permitted.7* So, also, in Col-
orado, where the statute prohibited needless mutilation or
torture.74

The reasoning in these cases would seem to apply to fox-
hunting, though in Massachusetts this has been held to be a
form of cruelty.7§

Cock-fighting has been held to be “cruelty to domestic ani-
mals” in England and Ireland,’® though not in Scotland."7

“Com. v. Lewis, 140 Pa. St. 261, reversing 7 Pa. Co. Ct. 558.

@S. P. C. A. v. Coursolles (Canada Police Court), cited in 20 Ir. L.
T. 548.

* State «. Porter, 112 N. C. 887.

“Waters v. Peo. (Colo.), 46 Pac. Rep. 112.

“Com. v. Turner, 145 Mass. 296. See Renton v. Wilson, 15 Rettie (Sc.
Ct. Justic.) 84, where Lord Young said obiter that fox hunting was not
an offense under the statute.

. “Budge v. Parsons, 3 B. & S. 382: Bates o. McCormick, 8 Ir. Jur. N.

. 230.

“Johnstone v. Abercrombie, 3 White Justic. Rep. (Sc.) 432. See r
Scots. L. T. 180, 211; 2 id. 622. Cf. Brown v. Renton, infra.

INJURING FOR SPORT; DISHORNING AND SPAYING. 539

But the statutory penalties against it are restricted to combats
in a place particularly kept for the purpose.“ ‘Under these
decisions it would appear that a person may daily move about
from one field or place to another and fight cocks in presence
of invited spectators, regardless of the statute which is meant
to prevent cruelty to animals in every place, provided he does
not charge for admission into the field or place, which would
probably amount to keeping a place for the purpose.” 7

A match took place between the owners of two dogs to
ascertain which could kill the greater number of rabbits by
running after them in a field, three acres in area, walled in so
that the rabbits could not escape. It was held that this was
not “baiting animals’ within the meaning of a statute.
Cockburn, C. J., said: “That term is usually applied when
an animal is tied to a stake or confined so that it cannot es-
cape.” 8°

The dishorning of cattle has been held to be cruelty to ani-
mals in England on the ground that no adequate object was.
to be attained to justify such a proceeding.*’ A similar de-
cision was made in an Irish case,8* but departed from in later
Irish cases which held that if the operation was performed
with due care and skill for the purpose of rendering the cattle
more profitable to farmers and exporters in the course of
their trade, it was not cruelty.8* Murphy, J., said in Cal-
laghan v. S. P.C.A.: “The defendants have procured evidence
to show, first, that the pain caused by the operation com-
plained of is very brief; that the animal feeds very soon after

* Morley v. Greenhalgh, 3 B. & S. 374; Clark v. Hague, 8 Cox. C. C.
324; Coyne v. Brady, 12 Ir. C. L. R. 577, 7 Ir. Jur. N. S. 105. And see
Brown v. Renton, 19 Rettie (Sc Ct. Justic.) 22, decided under a similar
Scotch: statute.

53 Ir. L. T. 16. As to what is a “public place” within the prohibition
of a statute against cock-fighting, see Finnem 7. State, 115 Ala. 106.

© Pitts 7, Millar, L. R.9 Q. B. 38. ™ Ford v. Wiley, 23 Q. B. D. 203.

° Brady v. M’Argle, 14 L. R. Ir. 174.

® Callaghan v. S. P. C. A., 16 L. R. Ir. 325; Reg. v. M’Donagh, 28 id.
204.

540 CRUELTY AND MALICIOUS MISCHIEF.

the operation; that it thrives with them better than an animal
from which the horns are not removed; that, in being car-
ried in railway wagons, the dishorned animals suffer less, and
are carried with greater safety than animals of the same kind
with the horns on; that on board of steamers, the cattle with
horns are liable to suffer from being gored one by the other;
but, if the horns are removed from all, they make the sea-
journey in safety; that, after being dishorned, numbers can
with safety be fed in enclosed places that could not with equal
safety be fed in places of the same extent; and they finally
produced evidence, which is not contradicted, to prove that in
the English markets, to which they resort for sale, the ani-
mals dishorned bring £2 per head more than animals of
the same weight and quality would with horns on.”

In Scotland also, the operation if skilfully performed has
been held not to be cruelty, and there is a similar decision
in Canada.®5 In Ohio it has been held in a police court case
to be within a statute declaring it a misdemeanor to torture
an animal, and not to be excused on the ground of conveni-
ence and profit to the owner and dealer.%¢

The operation of “spaying” performed on cows has been
held justifiable as being done with the object of increasing
weight and securing proper development, even if it is in fact
unnecessary and useless.87 This decision has been criticised
on the ground that no particular benefit to humanity was
proved to result from the practice of spaying.*®

“ Renton v. Wilson, 15 Rettie (Sc. Ct. Justic.) 84; Todrick v. Wilson,
18 id. 41. See an article from the Journal of Jurisprudence (Sc.) disap-
proving of these decisions, quoted in 25 Ir. L. T. 259: ‘“‘We still .
hold to the opinion of the English judges that dishorning ‘causes extreme
pain without an adequate and reasonable object, and is an unnecessary
abuse of the animal, and therefore unjustifiable under the existing
statute.’”’

“S. P. C. A. wv. Shepard, 13 Leg. News (Can.) 127.

“ State v. Crichton, 4 O. Dec. 481.

“ Lewis v. Fermor, 18 Q. B. D. 532. And see 28 Ir. L. T. 301.

“51 J. P. 561, quoted in 21 Ir. L. T. 536.

SOCIETIES FOR THE PREVENTION OF CRUELTY. DAL

124. Societies for the Prevention of Cruelty; Charitable Be-
quests.—These societies are of a semi-municipal character and
their officers have usually by statute the right to arrest of-
fenders without first obtaining a warrant, nor will an equit-
able action be sustained to restrain them from doing so.%?

It was held in England, in an action jor false imprisonment,
that if a constable is required by another person to take a
third person into custody for cruelty not committed in the
constable’s own view, he, before taking the person into cus-
tody, should either inquire into all particulars or see the ani-
mal so as to form a judgment as to what has occurred; °° and
the same rule would doubtless apply to officers of the Society
for the Prevention of Cruelty.

The officer who has preferred an information and com-
plaint before a court of summary jurisdiction has the right to
appear on behalf of the society and to examine and cross-ex-
amine witnesses on the hearing of such information.”

The court will not enjoin the society from arresting the
drivers or servants of a stage company, but may enjoin them
from stopping the vehicles, except for making an arrest for a
clear violation of the law, or from taking custody of the ani-
mals or stages or interfering with the passengers.%*

An act requiring every owner of a dog to procure a yearly
license paying a dollar therefor, under penalty of seizure
and destruction of the animal by the society, but not de-
claring the keeping of an unlicensed dog to be a misdemeanor
nor the dog a nuisance, is unconstitutional, as depriving the
owner of his property without due process of law.°? And
so is an act authorizing an agent of the society to condemn

© Davis v. American S. P. C. A., 75 N. Y. 362, affirming 16 Abb. Pr.
N.S. (N. Y.) 73. And see State v. Karstendiek, 49 La. Ann. 1621.

® Hopkins v. Crowe, 7 C. & P. 373. ™ Duncan. Toms, 56 L.T. N.S. 710.

* Stage Horse Cases, 15 Abb. Pr. N. S. (N. Y.) 51.

™ Box v. Mohawk & H. R. Humane Soc., 25 N. Y. App. Div. 26.

Whether an officer of the society can be made a peace officer, quaere:
Ibid. The law was held not to constitute the society a “subordinate

governmental agency.”

542 CRUELTY AND MALICIOUS MISCHIEF.

an animal and cause it to be appraised and destroyed without
notice to the owner.2! Where the officer may kill an animal
found abandoned if in the judgment of two reputable citizens
the animal is past recovery for any useful purpose, he is
liable for doing so unless he proves its condition, and
the judgment of the citizens without notice to the owner
is not conclusive."® And where the agent is authorized
to destroy any animal that is “injured, disabled, diseased past
recovery or unfit for any useful purpose,” he may not take an
animal properly hitched on a street and kill it, however bad
its condition, where it is not abandoned or cruelly treated or
afflicted with a contagious disease.°®

The opinion was expressed in an English case that the pre-
vention of cruelty to animals was a good charitable purpose,
though unaccompanied by any reference to the utility or im-
provement of man.°* And in Massachusetts the S. P. C. A.
has been held to be exempt from taxation as a charitable and
benevolent institution.°* In another English case it seemed
to be considered that the society for the protection of animals
liable to vivisection and the home for lost dogs were charities,
and perhaps also the society for the total suppression of vivi-
section ;°® and this last point was so decided in later cases.1°
A gift to a vegetarian society advocating the disuse of ani-
mal food on the ground that the slaughtering of living ani-
mals is inconsistent with their rights and needlessly cruel to
them, has also been held to be a charitable gift.1

*“ King v. Hayes, 80 Me. 206; Loesch v. Koehler, 144 Ind. 278.

“ Sahr v. Scholle, 89 Hun (N. Y.) 42.

" Goodwin v. Toucy (Conn.), 41 Atl. Rep. 806. His remedy is un-
der those statutes requiring notice to be given to the owner: Ibid.

“Marsh «. Means, 3 Jur. N. S. 700.

“Mass. S. P. C. A. v. Boston, 142 Mass. 24.

“ Obert v. Barrow, 35 Ch. D. 472.

* Armstrong v. Reeves, 25 L. R. Ir. 325; Cross 7. London Anti-Vivi-
section Society, [1895] 2 Ch. 501. And see Purday v. Johnson, 60 L. T.
N.S. 175.

™ Webb v. Oldfield, [1898] 1 I. R. 431. See the dissenting opinion of
Holmes, L. J.

SOCIETIES FOR THE PREVENTION OF CRUELTY. 543

A bequest for founding and upholding an institution for
investigating, studying and curing maladies of quadrupeds
or birds, useful to man, and for providing a superintendent
or professor to give free lectures to the public, was held good
as a charitable legacy./°?

A trust for the maintenance of particular horses and dogs
so long as they shall live is not invalid as a perpetuity, though
it is not a charity.1%

125. Indictment for Cruelty.—It is not sufficient to charge
in the indictment that the defendant did “knowingly torture”
an animal, in the absence of a statement of facts constituting
such torture.*°* But an indictment is sufficient that charges

“cruelly beating, bruising and wounding” a cow,!% or
“knowingly and wilfully suffering and permitting said dog to
be bitten, mangled and cruelly tortured by a certain other
dog’; °° or “cruelly overdriving,” without a more particular
statement of what constituted overdriving;?°* or “cruelly
beating a certain horse.” ‘The word clearly includes both the
wilfulness and cruel temper of mind with which the act was
done, and the pain inflicted by the act. Ifthe act were merely
accidental or did not give pain, it would not be cruel in the
ordinary sense of the word as applied to such an act.” 18° So,
where the statute forbids cruelly driving a horse when unfit
for Jabor, the indictment may allege that the defendant did
“cruelly drive” the horse, without stating that he knew it to
be unfit for labor. ‘‘The word ‘cruelly’ . . . exhausts the re-
quirements of the statute, whatever they may be, with regard

1 Univ. of London v. Yarrow, 23 Beav. 159, affirmed in 1 De G. & J. 72.

8 Cooper-Dean v. Stevens, 41 Ch. D. 552. And see Mitford v. Rey-
nolds, 16 Sim. 105.

™ State v. Watkins, 101 N. C. 702; State v. Bruner, 111 Ind. 98.

2 Com. v. Whitman, 118 Mass. 458.

*6 Com. v. Thornton, 113 Mass. 457.

State v. Comfort, 22 Minn. 271.

*8 Com. v. McClellan, ror Mass. 34. And see Burgman v. State (Tex.

Cr.), 34 S. W. Rep. 111.

544 CRUELTY AND MALICIOUS MISCHIEF.

to the state of mind of the actor.” 1° The cruel act is prop-
erly charged as “unlawfully and wilfully done.” 71° But
under the Kansas statute, it has been held that the complaint
must charge the specific acts relied on, and that it was not
sufficient to charge that the defendant “did unlawfully over-
drive and kill two animals.” 1"

Where the information states the means employed in the
commission of the offense, it need not describe the injury
inflicted on the animal, where the statute itself does not do
so.12 But an indictment under a statute prohibiting the tor-
ture of an animal, which merely charged that the defendant
tied brush or boards to the horse’s tail, and did not aver the
effect of the act, was held insufficient, as such an act does not.
necessarily produce torture.143 Where the statute makes
one guilty of cruelty to animals in his charge who unneces-
sarily fails to provide them with food, drink and shelter, the
word “unnecessarily” is a material part of the charge and a
count failing to contain that word or its equivalent will be
quashed on motion.1!*

It is not necessary to allege the ownership of the animal; !!5
nor its value,1?® unless the statute makes the value the basis
of the verdict.47 But the value of the animal before and
after the alleged cruelty is proper evidence of the nature of
the treatment.48 The value of the animal in the immedi-
ate neighborhood and at near and accessible markets may be
proved."?® And a witness acquainted with the animal be-

Com. v. Porter, 164 Mass. 576. “State v. Allison, go N. C. 733.

™ State v. Patterson, 6 Kan. App. 677.

”? State v. Giles, 125 Ind. 124.

™ State v. Pugh, 15 Mo. 500. “* Ferrias v. Peo., 71 Ill. App. 559.

™ Grise v. State, 37 Ark. 456: State v. Brocker, 32 Tex. 611; Com. v.
McClellan, tor Mass. 34.

In Maine, by statute, the custody only need be alleged or proved: State
. Clark, 86 Me. 194. And see State v. Spink, 19 R. I. 353.

" Grise v. State, supra; Caldwell v. State, 49 Ala. 34.

™ State v. Garner, 8 Porter (Ala.) 447.

™’ McKinne v. State, 81 Ga. 164. ™ Walker wv. State, 89 Ala. 74.

a

INDICTMENT FOR CRUELTY. 545

fore and after the injury may state his opinion as to the
amount of damage, though unskilled in veterinary or medi-
cal science.1?°

The animal need not be fully described in the indictment.!7!
A period of time instead of a single date may be alleged
where the offense involves continuous action.12?. The over-
working and the neglect properly to feed and shelter cattle
may be charged as one offense ;!”* so may ill-treating a horse
and causing it to be ill-treated.1*4 Under the English statute
the defendant was held liable to summary conviction upon an
information charging him with having cruelly ill-treated a
horse by causing it to be worked in an unfit state, although
the offense proved was that he had knowingly counselled the
horse’s owner to cause the act of cruelty to be done.’”®

126. Malicious Mischief to Animals——Whether malicious
mischief to property was an indictable offense at common law
is a disputed question. In an article reviewing some of the
cases favoring the doctrine it is said: “We cannot but think
that some of these cases have lost sight of the true distinc-
tion between crimes and private trespasses and, in their ab-
horrence of the wanton cruelty and wicked disposition ex-
hibited by the defendants in the several cases, have forgotten
that after all there was no more injury to the public in de-
stroying private property wantonly and maliciously than in
any other manner, and they seem rather to declare what the
law should be than what it then was. It is clear that the vari-
ous acts now punished as malicious mischief, such as destroy-
ing trees, killing domestic animals, etc., were not indictable in
England until made so by statute. . . . ‘Any damage arising
from the mischievous disposition, though only a trespass at
common law, is now by a multitude of statutes made

% Johnson v. State, 37 Ala. 457. "Com. v. McClellan, ror Mass. 34.
State v. Bosworth, 54 Conn. I. 8 Thid.
4 Bartholomew v. Wiseman, 56 J. P. 455.
Benford v. Sims, [1898] 2 Q. B. 641.
35

546 CRUELTY AND MALICIOUS MISCHIEF.

penal in the highest degree:’ 4 BI. Com. 243. Here we
have the direct testimony of this learned commentator in ac-
cordance with the principle we have before laid down, and
in conflict with many early decisions in this country. .
The absence of any reported cases of indictments for mali-
cious trespass in the English books anterior to the passage of
the several statutes hereafter referred to and the great fre-
quency of them soon afterwards, are both pregnant facts, fur-
nishing some evidence that at common law such acts were
not indictable, for we can hardly believe that mankind were
so much more depraved in the latter than in the former peri-
od, or that the rights of property were more clearly under-
stood or more conscientiously respected in the fifteenth and
sixteenth than in the seventeenth and eighteenth centuries.
In 1 Hale’s P. C. 561, it is laid down that ‘Burning of a frame
of a house (not a dwelling) or of a stack of corn was not
felony by the common law.’ From the fact, too, that the
older writers on criminal law say nothing of such an offense
as malicious mischief, it would be inferred that anterior to the
statutes it was unknown and was not a fact of the ancient
common law of England. The first English statute on the
subject was not passed until the 22 Hen. VIII... . It can
hardly be claimed, therefore, with truth that these statutes
comprised any part of the common law at the time our ances-
tors came here, and were brought with them as such... .
It would seem, therefore, that all our decisions on this
subject (in States where’ no statutes exist) should conform to
the English law anterior to the statutes above cited, and in
many States we find this to be the case.” 126

The premises of this writer might be admitted without ac-
<epting im toto his conclusion. If the common law is a liv-
ing organism, and not a mere fossil, it must be influenced
from within by the evolution in the sentiments of mankind
as well as from without by the moulding force of statutes.
It by no means follows that because, in ages when men were

"7 Law. Repr. N. S. 88-02.

MALICIOUS MISCHIEF TO ANIMALS. 547

habituated to and hardened by the sight of human torture
and bloodshed, the infliction of suffering upon animals was
not viewed in the light of a public offense, therefore in these
days of greater sensibility and more universal sympathy a
court must pronounce the offenses of malicious mischief and
cruelty to animals not to be indictable ‘tat common law,” nor
at all, unless there are statutory provisions on the subject.
The common law is too large a factor in history and life to be
limited in its operation to days anterior to all legislation.

These remarks may serve to throw some light on the dis-
<repancies we find in the cases. An early English case holds
that no indictment lies at the common law for unlawfully with
force and arms maiming a horse: that it is only a trespass,
independent of statute.’2° In Vermont it was held that an
indictment for maiming colts is sustainable where the grava-
men is wanton cruelty ;12® but in a later case it was held that
no indictment would lie for “feloniously, maliciously, mis-
chievously and wickedly killing a beast,” the property of an-
other.’7° Whereas in New York there is a decision just to the
contrary, the court saying: “The offense is distinguishable
from an ordinary trespass in this: that it is not only a violation
of private right, without color or pretence, but without the
hope or expectation of gain.” 13° And in Tennessee it was
held that the killing of an animal was indictable at the com-
mon law; 1"! though a later case holds the malicious destruc-
tion of goods not to be indictable.'**

™ Ranger’s Case, 2 East P. C. 1074. “It was so held also as late as
1840 in Reg. v. Wallace. 1 Crawf. & Dix. Cir. Cas. 403:"" State v. Beek-
man, 127 N. J. L. 124.

8 State v. Briggs. t Aik. (Vt.) 226. distg. Ranger’s Case supra where
“force and arms” alone appeared and not “all the wicked and malicious
motives and intentions set forth in this indictment.”

'™* State v. Wheeler, 3 Vt. 344.

8 Peo. v, Smith, 5 Cow. (N. Y.) 258. S. P. Respublica v. Teischer, 1
Dall. (Pa.) 335. And see Com. v. Leach, 1 Mass. 59.

*™ State v. Council, 1 Overt. (Tenn.) 305.

™ Shell v. State, 6 Humph. (Tenn.) 283.

548 CRUELTY AND MALICIOUS MISCHIEF.

Maiming or wounding an animal without killing it, is held
not to be an indictable offense in late cases in New Jersey'**
and North Carolina ; 144 but in the latter State it has been held
that the malicious killing of a dog is indictable.**° In Penn-
sylvania the malicious wounding of an animal has been held
to be an indictable offense at the common law.'*®

In a review of the cases on this subject it was said that
malicious mischief “has been recognized and declared to be
an indictable offense under the common law,” that “such is
unquestionably the rule which has received the approval of
the most respected and highest authority of this country,” but
that “it must, however, be admitted that the inclination of re-
cent decisions, so far as the common law is concerned is to re-
strict the injured party to his civil remedies, except in those
cases where the offense is accompanied by excessive wan-
tonness and cruelty; or where it is committed with stealth
and secrecy, in the night-time; or where it is productive of a
breach of the peace.” 137

The wanton killing of an animal is an ordinary form of
malicious mischief. One who sets fire to a cow-house and
burns to death a cow therein may be indicted for killing the
cow.138 And where the defendant had not a lawful fence
and cattle got in and the defendant, wishing to frighten them
off though not to kill them, fired and killed a-mule he did
not see on account of the height of the corn, he was held

™ State v. Beekman, 127 N. J. L. 124.

*™ State v. Manuel, 72 N. C. 201, where it is said, “Both the elementary
writers and the decisions hold that such offense is not indictable, but is a
civil trespass only.” And see Branch v. State, 41 Tex. 622, 624.

™ State v. Latham, 13 Ired. L. (N. C.) 33.

™ Com. v. Cramer, 2 Pears. (Pa.) 441,—and this though the animal is
trespassing at the time and there is no malice against the owner.

“32 Am. Dec. 662 n. Cf. 72 Am. Dec. 357 n, holding that originally
malicious mischief to animals was not indictable and tracing chronologi-
cally the changes due to statutory law and judicial interpretation of what
constitutes “malice.”

** Rex v. Haughton, 5 C. & P. 559.

MALICIOUS MISCHIEF TO ANIMALS. 549

liable, his carelessness supplying the criminal motive.129
So, one is liable who causes the death of an animal by grati-
fying his own depraved tastes, and not caring whether it is
injured or not, though bearing no ill-will either to the owner
or to the animal itself.1*¢

A dog has been held to be such “property” as to come
within the statutory provisions against malicious mischief.!*
But where a statute prohibited the injuring or destroying
of “public or private property,” this was held not to include
dogs but to refer only to inanimate property, and the court
said: “We do not think it probable that the legislature of
this State ever regarded the dog as being, in a general sense,
property concerning which a criminal offense could be com-
mitted. . We find nothing in our criminal statutes sug-
gesting any reason why this animal should be regarded as
a subject-matter °f crime in any instance where it is not ex-
pressly so declar<d.” 142, And in a Texas case it is said: “It
seems probable from the use of the words ‘injure or destroy’
in reference to the property designated by the phrase ‘any
other property’ that this latter expression was intended . . .
to include only inanimate property to the injury or destruc-
tion of which the terms ‘kill,’ ‘maim,’ ‘wound,’ etc., ...
could not properly be applied. However this may be, dogs
are not mentioned in the statute; nor do they come within
either class or description of the animals which are men-

° State v. Barnard, 88 N. C. 661.

As to the offense of killing or injuring attacking or trespassing ani-
mals, see § 122, supra.

“ Reg. v. Welch, 1 Q. B. D. 23, where the defendant inserted the
handle of a stable fork in the vagina of a mare and pushed it.

™ Kinsman v. State, 77 Ind. 132; State v. Sumner, 2 id. 377; State v.
McDuffie, 34 N. H. 523. And see State v. Latham, 13 Ired. L. (N. C.)
33 and the cases cited in 4o L. R. A. 511 u. ;

So, a dog is a “dumb anwnal” within the meaning of a statute against
wanton killing: McDaniel v. State, 5 Tex. App. 475.

That it is not error to refuse to admit evidence of the value of a dog
on the part of the defendant, see Dinwiddie v. State, 103 Ind. ror.

™ Patton v. State, 93 Ga. III.

550 CRUELTY AND MALICIOUS MISCHIEF.

tioned. They are not regarded by law as being of the same
intrinsic value as property, as the animals enumerated in the
statute; and cannot, we think, be brought within the pro-
hibition under the general expression ‘any other property’
by intendment. Nor, in point of fact, do we suppose it was
intended by the law-makers to include them. Had it been,
they would doubtless have been included among the ani-
mals expressly enumerated.” 1*

In Virginia under a statute making it indictable to destroy
wilfully any tree or other timber, or property, real or per-
sonal, belonging to another, it was held that no criminal
prosecution lay for killing a dog. “In a penal act the
word ‘property’ standing alone ought to be considered to
mean full and complete property, such as by the common
law may be protected by a public prosecution for the lar-
ceny thereof.” ’** And in Minnesota the malicious killing
of a dog was held not to be indictable under the words
“horse, cattle, or other beasts.” “‘All such as have in law no
value were not intended to be included in that general
term.,”’245

The status of the dog as the subject of property has been
already discussed in this work.14® The decisions based on the
theory that he is either not “property,” or property possessing ,
no intrinsic value, though of historical interest, are of slight
authority now. The civil and criminal liabilities for injuries
to the property of others ought to be, and generally are, at-
tached to those inflicted on dogs, as well as on other domestic
animals.

The maiming, wounding, disfiguring, etc., of animals are
forbidden in the statutes against malicious mischief. The
word “maim” implies a permanent injury;'4* and where a

“8 State v. Marshall, 13 Tex. 55.

“Com. v. Maclin, 3 Leigh (Va.) 8090. And see Davis v, Com., 17
Gratt. (Va.) 617.

“Uz S. v. Gideon, 1 Minn. 202. ™6 See §§ 20-22, supra.

“" State v. Harris, 11 Ia. 414; Reg. v. Jeans, 1 C. & K. 539.

MALICIOUS MISCHIEF TO ANIMALS. 551

horse threw the defendant and he caught hold of its tongue,
a part of which was left in his hand, but the wound healed
and the animal could work as well as before, this was not
“maiming” the horse.48 To maim means to cripple and it
is not essential that the act should constitute mayhem at the
common law.'*® Pouring acid into a mare’s eye and thereby
blinding her, is maiming;?°® but not injuring a sheep by
setting a dog on it.1°! Disfiguring is a lower grade of the
same offense and need not be permanent and, however slight
it is, if it lessens the animal’s value and is done with malicious
intent, it is indictable as such.°? Thus, cutting off the hair
of the tail or mane of a horse is disfiguring it;’** though,
where the statute prohibited “marking, branding or dis-
figuring” another’s animal, it was held that the latter word
applied only where the defendant’s act was such as to prevent
identity being ascertained, and did not render it an offense
to shave the mane and crop the hair from the tail of a mare
in the owner’s stable.1%*

Where a nail was maliciously driven into the frog of a
horse’s hoof, producing a temporary injury, this was held to
be “wounding.” “The word wound appears to be used as
contradistinguished from a permanent injury such as maim-
ing.” 155 But it is not necessary to prove that any instrument
was used to inflict the wound, and evidence that the prisoner
pulled at the horse’s tongue is sufficient. ‘‘Under this statute
the word ‘wound’ must be taken in the ordinary sense; for

“* Reg. v. Jeans, supra.

“© Turmian v. State, 4 Tex. App. 586.

In Texas one may be indicted for wilfully or wantonly maiming an ani-
mal though such animal is within his own enclosure: Cryer v. State, 36
Tex. Cr. 621.

9 Rex v. Owens, 1 Moody C. C. 205.

™ Rex vw. Hughes, 2 C. & P. 420.

* State v. Harris, supra.

™ Boyd v. State, 2 Humph (Tenn.) 39. And see Oviatt @. State, 19 O.
St. 573; Reg. v. Smith, 1 Nov. Sco. Dec. (G. & O.) 20.

*4 State v. Smith, 1 Cheves (S. C.) 157.

% Rex v. Haywood, 2 East P. C. 1076.

552 CRUELTY AND MALICIOUS MISCHIEF.

the mischief is just as great where manual power is used as
if it were inflicted by an instrument.”?°°

127. Proof of Malice; Indictment—The essence of the
offense of malicious mischief is malice toward the owner or
custodian of the property on the part of the perpetrator of
the act.157 This was held in cases arising under the Black
Act,!®* concerning which the following comments were made
in an Ohio case: “The key to these decisions is furnished by
Mr. East, who, in speaking of the preamble . and the two
acts named, by reference, says: “The offense herein described
seems by the preamble to be pointed at such as commit it
from a motive of malice to the owner of the property:
2 East P. C. 1063. And after quoting the statutes and
noticing the cases above cited and others on the same point,
he concludes the subject in these words: ‘In all these cases
there was reasonable evidence appearing upon the face of the
transaction itself to impute the motive of the fact to resent-
ment against the particular animals; and not to any personal
malice against the owner. But it does not appear to have
been decided that it is necessary to give express evidence of
previous malice against the owner, in order to bring a case
within the act; but the fact being proved to be done wilfully,
which can only proceed from a brutal or malignant mind,
it seems a question solely for the consideration of the jury to
attribute the real motive to it, to which the transaction itself
will most probably furnish a clue:’ East P. C. 1074. From
this it appears that, notwithstanding the severity of the pen-

*° Reg. v. Bullock, L. R. 1 C. C. 115.

“ State v. Newby, 64 N. C. 23; State v. Latham, 13 Ired. L. (N. C.) 33;
Northcot v. State, 43 Ala. 330; Hobson v. State, 44 id 380; State v.
Enslow, to Ia. 155; State v. Lightfoot (Ia.), 78 N. W. Rep. 41; U. S.
v. Gideon, 1 Minn. 292; State v. Wilcox, 3 Yerg. (Tenn.) 278; Stone v.
State, 3 Heisk. (Tenn.) 457.

And malice toward the owner’s son was held not to be sufficient in
Nourthcot v. State, 43 Ala. 330.

** Pearce’s Case, Leach 527; Shepherd’s Case, Ibid. 530.

PROOF OF MALICE; INDICTMENT. 553

alty and the fact that by the preamble to the first-named act
the offense seems to be pointed at such as committed it for
motives of malice against the owner, the English decisions
only went to the extent of holding that there could be no
conviction where, upon the face of the transaction itself, the
motive for the act could be imputed only to resentment or
anger against the particular animal. In all other cases, the
question of malice was to be left to the jury to be determined
by the testimony. Having borrowed the English statute,
we accept the above as the proper construction to be given
to our statute on this point. We are aware that the decisions
in some of the States seem to go further than this, but we
decline to follow them.” 159

In an Alabama case it was said: “It is not indispensable
to a conviction that the defendant did or said anything, either
before or after the commission of the act, indicative of express
malice towards the owner. Malice may be inferred, if the
injuryis unlawful, from the instrument used or the wantonness
of the deed, and from any attendant circumstances which
would justify the inference in other crimes where malice is an
essential constituent.” 1® And in an Iowa case, the court
said: “If the act was wilful and wanton, the defendant in-
tended to inflict an unnecessary and inexcusable injury upon
the owner, and his malice embraces both the animal and the
owner.” 181

The fact, therefore, that the defendant did not know who
the owner was does not show a lack of malice.1®* Nor does
the fact that the defendant was intoxicated at the time.’®

* Brown wv. State, 26 O. St. 176.

The Black Act is not in force in Georgia: State v. Campbell, Charlton,
T. U. P. (Ga.), 166.

Hobson v. State, 44 Ala. 380. And see Hill v. State, 43 id. 335.

™ State v. Williamson, 68 Ia. 351. And see Reg. v. Tivey, 1 C. & K.
704: Ty. v. Crozier, 6 Dak. 8; State v. Avery, 44 N. H. 392.

12 Deo, v, Olsen, 6 Utah 284; State v. Linde, 54 Ia. 139; State v.
Phipps, 95 id. 491.

8 State v. Avery, 44 N. H. 3092.

554 CRUELTY AND MALICIOUS MISCHIEF.

But the jury ought to be satisfied that the injury was done
either out of a spirit of wanton cruelty or of wicked revenge;
and “acting maliciously” was held not to be sufficiently de-
fined as “the wilfully doing of any act prohibited by law, or
for which the defendant has no lawful excuse.” “The learned
judge was probably of opinion that if the mare was injured,
as alleged, by the discharge of a gun loaded with powder
and shot, that ipso facto would be conclusive proof of malice.
But that question, we think, should have been submitted to
the jury.” 76+ And the fact that the animal was trespassing
at the time would tend to disprove malice.1°

Evidence of a general scheme of poisoning the horses of a
neighborhood for the purpose of defrauding their owners
out of fees for curing them was held to be sufficient to show
malice.'** Whereas, if the prisoner administered poison to
horses under an idea that it would improve their appearance,
he was not guilty of administering poison with intent to
kill.1% But where one was indicted for poisoning horses in
order to prevent their running in a race, the defendant having
betted against them, this intent was held to constitute
malice. An indictment for wilfully and maliciously ad-
ministering poison to a horse, in the words of the statute, is
sufficient without further averment of criminal intent or of
injury to the horse.1°* And it need not be alleged that the
quantity of poison was sufficient to kill.17° Where the ad-
ministering of poison is made by statute a specific offense,

“©Com. v. Walden, 3 Cush. (Mass.) 558. And see State v. Allen, 72
N.C. rr,

“™ See Thomas v. State, 30 Ark. 433, 435; Chappell v. State, 35 id. 345;
Bennefield v. State, 62 id. 365; Lott v. State, 9 Tex. App. 206; Wright v.
State, 30 Ga. 325; Gaskill 7. State, 56 Ind. 550.

* Brown v. State, 26 O. St. 176.

Rex v. Mogg, 4 C. & P. 364.

“*® Dawson’s Case, Ms., cited in 3 Chit. Cr. L. 1087 n.

™ Com. v. Brooks, 9 Gray (Mass.) 299. And see State v. Isaacson, 8
S. D. 60.

™ State v. La Bounty, 63 Vt. 374. where it was held that the words
“Paris green” sufficiently imported poison.

PROOF OF MALICE ; INDICTMENT. 555

it is not punishable under another section of the code as
“wilful and wanton destruction of property.” +7!

The indictment need not charge the act to have been done
out of malice to a particular person, on the principle already
discussed; 17? though it has been held that the name of the
owner, if known, should be stated.t72 And even where it
need not be given, if it is actually stated, the proof must cor-
respond with the allegation." Where the injury done to the
owner enters into the penalty and is the element out of which
it springs, the amount of injury must be alleged.17

An indictment for malicously or needlessly killing need not
allege the mode or circumstances of the killing.17® Nor need
the fact that the animal was killed while trespassing in an
enclosure having an insufficient fence be alleged.177

Where the statutory offense consists in the injury being
done “maliciously,” an allegation that the defendant’s act was
“wilful and unlawful” is not sufficient.17§

Under a statute punishing “wilful” or “wilful or malicious”
injuries, malice need not be shown.'7® It has been held that
the word “feloniously” must be used, where the killing of an
animal is a statutory felony; 1*° but that the act need not be

™ Peo. v. Knatt, 156 N. Y. 302.

™ State v. Scott, 2 Dev. & Bat. L. (N. C.) 35; State v. Hambleton,
22 Mo. 452. See State v. Hill, 79 N. C. 656; State v. Pierce, 7 Ala. N.
S. 728; Thompson v. State, 51 Miss. 353.

By Stat. 24 & 25 Vict. c. 97 s. 60, an intent to injure particular per-
sons need not be stated in the indictment.

™ State v. Deal, 92 N. C. 802; State v. Pierce, supra; State v. Smith,
21 Tex. 748; State v. Jackson, 7 Ind. 270. See 2 Bish. New Crim. Proc.
§§ 838-846.

™ McLaurine v. State, 28 Tex. App. 530.

™ State v. Heath, 41 Tex. 426.

™® State v. Greenlees, 41 Ark. 353; Com. v. Sowle, 9 Gray (Mass.) 304.
See State v. Jackson, 7 Ind. 270.

"T Dean v. State, 37 Ark. 57. See Gerdes v. State (Tex. Cr.), 34 S. W.
Rep. 268.

"8 State v. Lightfoot (Ia.), 78 N. W. Rep. 41.

1” Wallace v. State, 30 Tex. 758; Johnson v. State, 37 Ala. 457.

°° State v. McCarron, 51 Mo. 26.

556 CRUELTY AND MALICIOUS MISCHIEF.

alleged to have been wilfully and wantonly done.*** The
court should, however, in a proper case instruct the jury what
“wilful and wantonly” wounding means.'8* An indictment
for “shooting” a cow is sufficient, though the statute speaks
of “wounding.” A wound, in criminal law, is “an injury to
the person by which the skin is broken” and “shooting”
would naturally include this.1%* An allegation that the de-
fendant did “wound and kill’ a mule was held not to be sup-
ported by proof that the mule, though wounded, was not
killed.1®4

The naming of animals in penal statutes and indictments
has been already considered.1®®

A malicious injury to two animals inflicted in one trans-
action is one offense in law and, if the jury find the defendant
guilty as to one animal and say nothing of the other, they
acquit as to the latter.1%®

™ Burgman v. State (Tex. Cr.), 34 S. W. Rep. 111.

* Browder v. State, 30 Tex. App. 614.

8 State v. Butts, 92 N. C. 784. ™ Reid v. State, 8 Tex. App. 430.
*® See §§ 55-57, 121, supra. * Haworth v. State, 14 Ind. 590.

TITLE VI.

CRUELTY—GAME LAWS.

CHAPTER II.

GAME LAWS.

128. Power to enact game laws. 130. Right to shoot in private
129. Capture, sale or possession of lands.
game in the close season.

128. Power to Enact Game Laws.—It is not intended in the
present chapter to give a synopsis of the various game laws
of Great Britain and the different States of this country.
These are statutes of purely local importance, and compila-
tions of them already exist... But there are some general
principles of law that relate to all of them which cannot be
overlooked in a treatise of this nature.

The ownership of the wild game in a country, in so far as
it is capable of ownership, is in the State itself for the benefit
of all the people in common.” The legislature has the right
to withhold from or grant to individuals the right to hunt
and kill game, or qualify and restrict it, as in the opinion of
its members will best subserve the public welfare.2 Nor can

See Book of the Game Laws (Forest and Stream Pubg. Co., N. Y.);
Austin’s Farm and Game Law, Ch. XIV; O’Brien’s Ont. Game and
Fishing Laws, etc.

? Geer v. Conn., 161 U. S. 519. See, as to property in game, Tit. I,
Ch. I, supra.

* Magner v. Peo., 97 Ill. 320. And see Garcia v. Gunn, 119 Cal. 315.

557

558 GAME LAWS.

the owner of the soil while his lands are unenclosed prohibit
the exercise of this right to others: the hunting of wild ani-
mals in the forests and unenclosed lands of this country is as
ancient as its settlement, and the right to engage in it is
coeval therewith.*

“Tt is a very common police regulation to be found in
every State, to prohibit the hunting and killing of birds and
other wild animals in certain seasons of the year, the object
of the regulation being the preservation of these animals from
complete extermination by providing for them a period of rest
and safety, in which they may procreate and rear their young.
The animals are those which are adapted to consumption as
food, and their preservation is a matter of public interest.
The constitutionality of such legislation cannot be ques-
tioned.” ® And an act providing for greater restrictions as
to hunting game and severer penalties therefor upon non-
residents of the State than upon residents, is not unconstitu-
tional.®

In Arkansas and Minnesota it was held that statutes mak-
ing it unlawful to export game or fish from the State were not
unconstitutional.’ But in Kansas, this was held to be a regu-
lation of interstate commerce and therefore void. The same
question arose in Connecticut, where a similar statute was
held to be constitutional on the ground that the State had

*McConico v. Singleton, 2 Mill (S. C.) 244; Broughton v. Singleton,
2 Nott & McC. (S. C.) 338.

If a man has a limited right of passage over private ground, that does
not entitle him, while using such right, to kill game: Colt v. Webb, 1
Fraser (Sc. Ct. Justic.) 7.

*Tiedeman Limns. of Pol. Power 440.

* Allen v. Wyckoff, 48 N. J. L. go.

"Organ v. State, 56 Ark. 267; State v. North. Pac. Expr. Co., 58 Minn.
403.

Under such a statute game killed by tribal Indians on a reservation
may be seized by the game warden while it is in the possession of a com-
mon carrier to whom it had been delivered for shipment in another State:
Selkirk v. Stevens (Minn.), 75 N. W. Rep. 386.

* State v. Saunders, 19 Kan. 127.

POWER TO ENACT GAME LAWS. 599

a right to enact that birds may be killed and sold for domestic
consumption only: “The birds in question never became
articles of commerce. . . They became private property of
a qualified character.”’* This judgment was affirmed in the
Supreme Court of the United States where, without deciding
whether the game killed was an article of commerce, the
court said: “The fact that internal commerce may be distinct
from interstate commerce, destroys the whole theory upon
which the argument of the plaintiff in error proceeds. The
power of the State to control the killing of and ownership
in game being admitted, the commerce in game which the
State law permitted was necessarily only internal commerce,
since the restriction that it should not become the subject
of external commerce went along with the grant and was a
part of it. All ownership in game killed within the State
came under this condition, which the State had the lawful
authority to impose, and no contracts made in relation to
such property were exempt from the law of the State consent-
ing that such contracts be made, provided only they were
confined to internal and did not extend to external com-
merce.” ?°

This decision establishes the principle that the police power
of a State authorizes it to forbid the killing of certain game
within the State with the intent of procuring its transporta-
tion beyond the State limits, or having it in possession with
like intention.

The State may also forbid internal commerce in game. A
provision that “it shall be unlawful for any person to consign
by common carrier to any commission merchant or sale
market, at any time, any elk, moose, caribou or deer, or any
part thereof éxcept the head or skin,” was held not to be
uriconstitutional as depriving the citizen of his privileges and
property without due process of law; the only restriction

* State v. Geer, 61 Conn. 144.
Geer v. Conn., 161 U. S. 519, 532. Justices Field and Harlan dis-

sented.

560 GAME LAWS.

being that the game could not be consigned to a common
carrier, which prevented its becoming an article of general
commerce and thereby materially decreased the amount
killed.1?

An act forbidding the killing of deer for ten years is not
in conflict with the contitutional provision that the inhabit-
ants of the State should have liberty in reasonable times
to hunt, etc., under proper regulations.1? And a statute
making it a misdemeanor to sell or offer for sale the hide
or meat of any deer is not in excess of the police power of the
State; nor is a police regulation making it an offense to buy
and sell deer-meat within the State cut from an entire car-
cass from without the State unconstitutional as an attempt to
regulate interstate commerce.'®

The subject of destroying or selling game in the close
season is treated of in the next section.

The provision in the treaty with the Bannock Indians that
they should have “the right to hunt upon the unoccupied
lands of the United States so long as game may be found
thereon and so long as peace subsists between the whites and
Indians on the borders of the hunting districts” was held to
confer a privilege of merely limited duration, and to be re-
pealed by the act admitting the Territory of Wyoming into
the Union, as it was not intended to give them the right to
exercise the privilege within the limits of that State in viola-
tion of its laws.14

A statute and order of the Secretary of the Treasury for-
bidding the killing of otters by any but natives was held not to
prohibit a company from taking natives on board under an
agreement and usually purchasing skins from them, though
each native was free to sell his skins elsewhere.15

The State has, of course, the right to demand that no one

™ State v. Chapel, 63 Minn. 535. * State v. Norton, 42 Vt. 258.
* Ex parte Maier, 103 Cal. 476.
“Ward v. Race Horse, 163 U. S. 504, reversing 70 Fed. Rep. 508.
* The Kodiac, 53 Fed. Rep. 126.

POWER TO ENACT GAME LAWS. 561

shall deal in game without a license. In England an excise
license is not required to enable a person to deal in game
killed abroad.’® To warrant a conviction for buying game
from an unlicensed person, it is sufficient to prove that the
dealer bought or obtained game from an unauthorized person
without proving guilty knowledge on his part.17

Where a pheasant breeder set pheasants’ eggs to be hatched
under barnyard hens, reared young birds in coops or pens,
cutting one wing off each to assist in its identification and.
prevent its escape and sold the pheasants to the public, it
was held that he was liable for the penalty of dealing in game
without a license, as the pheasants were game and not tame
birds, though reared under hens.'® Taking, killing and pur-
suing without a license is one offense.19

A complaint charging the use of a prohibited kind of gun
of a certain calibre must say that it was for the purpose of
killing game or animals.?°

Concerning penalties for offenses against the game laws, it
was said in a Minnesota case: “The punishment for offenses
against game laws are usually graduated in one of two ways,
—either by making the unlawful killing or possession of each
animal a separate and distinct offense, or (which works out
the same result) by graduating the penalty according to the
number of animals killed or possessed, so that the greater the
offense, the greater the punishment. This method of gradu-
ating punishment is distinctly recognized in many of our
criminal statutes. Our game law is not more severe in its
penalties than the game laws of other States, the validity of
which in this respect has rarely been questioned, so far as we
have discovered.” #1

Each member of a firm which is in possession of three

* Pudney v. Eccles, [1893] 1 Q. B. 52.
7 Reg. v. Muirhead, 51 J. P. 760. ® Harnett v. Miles, 48 J. P. 455.
* Laxton v. Jefferies, 58 J. P. 318.
* Ex parte Peterson, 119 Cal. 578.
2 State v. Rodman, 58 Minn. 393, 402.
36

562 GAME LAWS.

caribou at a forbidden season is a possessor of all such caribou
and liable for the full penalty.??

An action for the penalty, though in the name of the peo-
ple, is a civil action and the defendant is not entitled to trial
in the county where the cause of action accrued, as in crim-
inal cases.22. The complaint need not, however, allege to
whom the penalty goes.**

Where the fish and game protectors, and also a private
person, may sue for the penalties, a judgment in an action
by the latter is a bar to an action by the former.”

Under a statute imposing a penalty on anywho should hunt
on their own lands on Sunday, except those who observed
Saturday as the Sabbath, it was held that the complaint should
aver that the defendant was not within the exception or that
he was not hunting on his own land.?®

Fish has been held to be “game” within the meaning of a
constitutional prohibition against the enactment of special
laws for the protection of game.?"

129. Capture, Sale or Possession of Game in the Close Season.—
Although, as was said in the preceding section, the passage of
acts forbidding the capture, sale or possession of game at
certain seasons is recognized as within the police power of the
State, there has been some diversity of opinion as to the
construction of such statutes with regard to the sale and
possession during the close season of game that has been
captured or killed at a lawiul time or place.

In England it was held to be no defence to an information
under the Wild Birds Protection Act, 1876 (39 and 40 Vict.
c. 29), for exposing wild birds for sale during the close
season, that such birds had been bought of or received from
one residing out of the United Kingdom. Coleridge, C. J.,

* Allen v. Leighton, 87 Me. 206.

* Peo. v. Rouse, 15 N. Y. Suppt. 414. * State v. Thrasher, 79 Me. 17.
* Peo. v. Robbins, 39 Hun. (N. Y.) 137.

* State v. Peters, 51 N. J. L. 244. State v. Higgins, 51 S. C. 51.

CAPTURE, ETC., IN THE CLOSE SEASON. 563

said: “It is said that it would be a strong thing for the legis-
lature of the United Kingdom to interfere with the rights of
foreigners to kill foreign birds. But it may well be that the
true and only mode of protecting British wild fowl from indis-
criminate slaughter, as well as of protecting other British
interests, is by interfering directly with the proceedings of
foreign persons. The object is to prevent British wild fowl
from being improperly killed and sold under pretence of
their being imported from abroad.” 28

In a later case, under a statute prohibiting buying, selling
or having in possession any bird of game after the expiration
of ten days from the day on which it becomes unlawful to
kill or take ‘such birds of game,” it was held that it was
not unlawful for a game-dealer to have in possession foreign
birds of the same kind, killed abroad and commercially con-
signed to England as articles of food. The court distin-
guishes Whitehead v. Smithers, supra, as, in that case, “there
is nothing . . . in the section then before the court to limit
the latter part of it to the possession of a wild fowl which had
been recently unlawfully killed according to the earlier part
of the same section.” *° It had been previously held under
the statutes 2 Geo. 3, c. 19, and 39 Geo. 3, c. 34, that one
having in his possession a partridge killed before the close
time was not guilty of the offense.*® And a licensed dealer
in game is not prohibited by statute 1 and 2 Wm.4, c. 32, from
entering into a contract made in the season to deliver live
game out of a mew or breeding-place at any time including
the close season.**

In New York it was held that the legislature had full power
to pass an act prohibiting having possession of game birds,
though they were killed at a time when by the act such kill-
ing was not forbidden, or brought from another State where

** Whitehead v. Smithers, 2 C. P. D. 553.

* Guyer v. Reg., 23 Q. B. D. 100. And see 53 J. P. 433; 23 Ir. L. T. gar.
* Simpson v. Unwin, 3 B. & Ad. 134.

* Porritt v. Baker, 10 Ex. 759.

564 GAME LAWS.

there was no such prohibition.2? And one controlling game
consigned from another State for sale is liable for having pos-
session out of season, though the consignment was made at
a proper time and the game was stored in the refrigerator
warehouse of a company.**

In Illinois a similar statute was held not to be unconstitu-
tional as conflicting with the power of Congress to regulate
commerce. Scholfield, J., said: “We think it obvious that
the prohibition of all possession and sales of such wild fowls
or birds during the prohibited seasons would tend to their
protection, in excluding the opportunity for the evasion of
such law by clandestinely taking them, when secretly killed
or captured here, beyond the State and afterwards bringing
them into the State for sale, or by other subterfuges and
evasions. It is quite true that the mere act of allowing a
quail netted in Kansas to be sold here does not injure or in
anywise affect the game here; but a law which renders all
sales and all possession unlawful, will more certainly prevent
any possession or any sale of the game within the State, than
will a law allowing possession or sales here of the game taken
in other States. This is but one among the many instances
to be found in the law where acts, which in and of themselves
alone are harmless enough, are condemned because of the
facility they otherwise offer for a cover or disguise for the
doing of that which is harmful.”*4 In Missouri also the
statute was held to be violated by having game in possession
during the close season irrespective of the time and place
of killing. “The game laws would be nugatory if, during
the prohibitory season, game could be imported from the
neighboring States. It would be impossible to show in
most instances where the game was caught.’25 There

* Phelps v. Racey, 60 N. Y. to.

*N. Y. Game Assn. v. Durham, 51 N. Y. Super. Ct. 306.

“ Magner v. Peo., 97 Ill. 320, followed in Merritt v. Peo., 169 id, 218.

* State v. Randolph, 1 Mo. App. 15. And see State v, Judy, 7 id. 524;
State v. Farrell, 23 id. 176.

CAPTURE, ETC., IN THE CLOSE SEASON. 565

are similar decisions in Ohio,?® California,?7 and Minne-
sota.3®

On the other hand, it has been held in many of the States
that the prohibition of the statute extends only to the posses-
sion or sale of game unlawfully captured or killed. In Mass-
achusetts the statute is directed against “whoever takes or
kills any woodcock, etc., or sells, etc., any of said birds,” and
possession is made prima facie evidence to convict. It was
held that this did not prohibit having in possession and
selling within the close time game lawfully killed in another
State, and the court said: “Saying that possession shall be
prima facie evidence necessarily implies that it shall not be
conclusive; if the mere possession of birds during the time
within which the taking or killing of them is prohibited of
itself constituted an offense under the previous sections of
the statute, to say that such possession should be prima facie
evidence would be superfluous, if not absurd.” °°

In Michigan the statute contains a similar provision as to
prima facie evidence and the decision in Com. v. Hall, supra,
was followed. ‘The articles interdicted are articles of food,
and the interdiction is not because such food is unwholesome,
and, therefore, detrimental to the public health, but the whole
end and object of the legislation is to protect and preserve
game in the State of Michigan.” *°

In Pennsylvania the statute prohibits killing or exposing
for sale or having possession of game “after the same has been
killed.” The court said: “What does the word ‘same’ here
refer to? Clearly, the antecedent game, the killing of which
had already been prohibited.” It was held accordingly that
the sale during the close season of game killed in another
State did not come within the statutory prohibition.‘

Ps

* Roth v. State, 7 O. Cir. Ct. 62, affirmed in 51 O. St. 209.

** Ex parte Maier, 103 Cal. 476.

State v. Rodman, 58 Minn. 393. “Com. v. Hall, 128 Mass. 410.
* Peo. v. O’Neil, 71 Mich. 325.

"Com. v. Wilkinson, 139 Pa. St. 298.

566 GAME LAWS.

The same interpretation has been given to the statutes

of Maine,*® Maryland,*? Oregon,** Ontario,* and Quebec.*®
It was held in Maine that where the plaintiff captured a
moose at an unlawful time he had no action against a game
warden who without process liberated it. The court said:
“Suppose a hunter has his rifle levelled at game in close time
and some one shoves it aside so that the game is missed.
Shall the hunter have damages? He has only been pre-
vented from continuing a criminal act. Suppose lobsters
illegally taken are thrown overboard alive. Is he who does
it a trespasser? Shall the taker of them have damages for
his illegal catch? Or suppose one lands a salmon in violation
of law and a bystander, while it is yet alive, throws it back
into the water. Shall the fisherman have the value of the
salmon that the law forbids his having at all? When game
is killed it absolutely becomes property, but when taken alive,
only conditionally so; for when released, property in it is
gone. So long, then, as the possession of live game is illegal,
qualified property in it is illegal also, and the releasing of
such game interferes with no legal right or title of the person
illegally holding it captive.” #7 But in the same case it was
held that where the plaintiff had purchased a deer in close
time and it was not shown to have been unlawfully captured,
he might recover against a game warden for taking it away.
In Massachusetts, however, it was held that the fact that
the possession of one having rabbits for sale was unlawful did
not prevent his maintaining an action for their wrongful

“State v. Bucknam, 88 Me. 385. “ Dickhaut v. State, 85 Md. 451.

“ State v. McGuire, 24 Oreg. 366.

* Davis v. McNair (Can. Gen. Sess.), 21 Cent. L. Jour. 480; 7 Crim.
L. Mag. 213.

“ Shewan v. Drummond, 35 Low. Can. Jur. 113.

“James v. Wood, 82 Me. 173.

The possession of only one moose in the open season is not sufficient
evidence of its illegal capture to throw the burden of proof on the defend-
ant: State v. Lynch, 89 id. 209. As to a complaint charging the illegal
possession of dead game, see State v. Thomas, 90 id. 223.

CAPTURE, ETC., IN THE CLOSE SEASON. 567

seizure by a deputy of the game commissioners without a
warrant or order from court.*®

An act imposing a penalty on having in possession at one
time more than a certain quantity of game does not make it
unlawful for a common carrier to transport during the pro-
hibited season more than the legal amount, if it was killed
at a lawful time.*®

Where by statute the possession of a bird of a certain kind
is evidence that it was killed in violation of law, the possession
being shown, the burden is on the accused to show that his
possession is consistent with a lawful taking.6° And where
game unlawfully killed is commingled with game lawfully
killed, the burden is on the possessor to prove, as against the
State, what portion was lawfully killed.5

One who has in possession or offers for sale deer at a for-
bidden season is not exempt from liability by reason of the
fact that his title and possession were by purchase at a sheriff’s
sale on execution against the killer of the game.®?

Where the plaintiffs employed the defendant to store game
during the “closed season” which they had on hand at the
commencement of such season, intending to withdraw it when
the “open season” returned, and subsequently brought an
action for damages owing to the game being insufficiently
kept, it was held that the plaintiffs could not recover as the
intention of the parties could not be considered and the de-
fendant’s contract to preserve and restore the game was void

* Averill v. Chadwick, 153 Mass. 171.

* Bennett v. American Exp. Co., 83 Me. 236. And see 13 L. R. A.
804 n, where this is said to be an “important modification” of some of the
decisions cited above. See also Allen v. Young, 76 Me. 80

A deer roaming wild in the defendant’s park containing from 700 to 800
acres, and surrounded by the sea except a narrow strip, where artificial
structures had been placed, was held not to be so in the defendant’s posses-
sion that he could kill it in close time: State v. Parker, 89 id. 81.

*° State v. Stone (R. I.), 40 Atl. Rep. 499.

"Thomas v. Northern Pac. Exp. Co. (Minn.), 75 N. W. Rep. 1120.

™ Bellows v. Elmendorf, 7 Lans. (N. Y.) 462.

568 GAME LAWS.

under the statute making it a misdemeanor to have in posses-
sion such game during the close season.**

Killing wild animals in close time when they are pursuing
and destroying the defendant’s domestic animals is not a
violation of the game laws.°* Where the statute prohibited
the shooting of certain game in the night-time, it was held
error to instruct that night ends one hour before sunrise, as
it is day when there is daylight enough by which to dis-
cern a person’s face.®> A statute making it an offense
to have in possession a certain kind of game “from the first
day of January to the first day of October” will be construed
as reading “between the first day of January and the first day
of October.” 5°

Where a statute imposed a penalty for the killing or expos-
ure for sale or possession of “eagles . . . or song birds,” it
was held that exposing live birds for sale in a shop was not
a violation thereof, as the purpose of the statute was to pre-
vent the destruction of birds and prohibits the possession and
sale of dead birds only.®”

One starting to hunt prairie chickens with a loaded gun in
the close season is not thereby attempting to kill prairie
chickens in violation of statute, so as to forfeit the benefit
of an accident insurance policy.®§

180. Right to Shoot in Private Lands.—The right that a man
has to hunt and shoot game on hisown land, subject, of course,
to the Game Laws, may be transferred to others. The grant

° Haggarty v. St. Louis Ice Manufg. & S. Co., 143 Mo. 238.

* Aldrich v. Wright, 53 N. H. 308, where four minks were killed while
Pursuing geese.

® Klieforth v. State, 88 Wis. 163.

** State v. Stone ( R. I.), 38 Atl. Rep. 654.

* Peo. v. Fishbough, 134 N. Y. 303.

® Cornwell v. Fraternal Acc. Assn. of Amer., 6 N. D. 201, where it is
also held that hunting game with a loaded gun or trying to scale a bank
under such circumstances is not a “voluntary exposure to unnecessary
danger.”

RIGHT TO SHOOT IN PRIVATE LANDS. 569

-of this right is of an incorporeal hereditament and should be
by deed: *® it is a grant of an interest in land and within the
Statute of Frauds.°° The grant to a person, his heirs and
assigns of “free liberty with servants or otherwise to come
into and upon lands and there to hawk, hunt, fish and fowl,”
was held to be the grant of a license of profit and not of a
mere personal license of pleasure, and, therefore, it authorized
the grantee, his heirs and assigns to hawk, etc., by his serv-
ants in his absence. Such a liberty is a profit a prendre.®
Where one has the sole and exclusive right to shoot on
another’s land, this does not authorize the former to permit
-others to exercise the same privilege.®

A reservation in a case of the liberty of hawking, hunting,
fishing and fowling, is not legally a reservation or exception,
-but a privilege granted to the lessor.** A right of shooting
game over allotments declared by an Enclosure Act to be
the freehold of the allottees can be reserved to the lord only
in express terms or by necessary implication.®** A stipulation
of a tenant that he will not destroy any game and will en-
-deavor to preserve all game bred and being on the farm was
held not to be a reservation of game to the landlord and the
tenant could not be convicted of unlawfully killing game.

A landlord who has verbally reserved game to himself has
sufficient authority to give leave to another to kill game

* Bird v. Higginson, 2 A. & E. 696. And see Thomas v. Fredericks, 10
Q. B. 775, where the grant was held valid as an agreement, even where
it did not pass the estate.

© Webber v. Lee, 9 Q. B. D. 315.

® Wickham v. Hawker, 7 M. & W. 63. S. P. Ewart v. Graham, 7 H. L.
Cas. 331; Hudson v. Foott, 9 Ir. C. L. R. 203.

® Bingham v. Salene, 15 Orég. 208. See Marquis of Huntly v. Nichol,
23 Rettie (Sc. Ct. Sess.) 610; Reynolds v. Moore, [1898] 2 I. R. 641.

* Doe dem. Douglas v. Lock, 2 A. & E. 705; Reynolds v. Moore,
supra.

* Duke of Devonshire v. O’Connor, 24 Q. B. D. 468, following Sowerby
-y. Smith, L. R. 9 C. P. 524, and commenting on Leconfield, Lord, v.
Dixon, L. R. 3 Ex. 30.

® Coleman v. Bathurst, L. R. 6 Q. B. 366.

570 GAME LAWS.

on such farm to prevent the latter from being a trespasser
thereon in pursuit of game.*® Where the right of shooting
is reserved, the tenant may maintain an action against those
entitled to shoot for overstocking the land with game so as
to cause damage to his crops.

Where a right of shooting over land is demised, there is
no implied covenant by the lessor that the surface of the
land or the course of cultivation shall remain unchanged.**
And under such a grant the tenant has no right to prevent the
landlord from cutting down trees in the proper course of
management of the estate, even though the result will be
prejudicial to the shooting. The right is that of shooting
over the lands as they may happen to be at the time, the
landlord not doing anything for the express purpose of de-
stroying such right.6" One having only a right of shooting
over land has no right to empower keepers to apprehend
parties trespassing in search of game.’°

A lease of an island which authorizes the lessee to “utilize
the wild goats” found thereon, in moderation, so as not to de-
stroy them, and reserves in the lessor a power of inspection,
creates a property right in all the animals, precluding others.
from hunting them or making the product of such hunting
the property of the lessee. A reservation in favor of the
government making the lease of a certain portion of the
island for public use is a condition subsequent and, until the
selection of the portion has been made, the lessee is entitled
to the whole island with control of all the goats thereon.
The right of possession to the goats is immediate, so that the
lessee may maintain replevin against a trespasser who invades.
such right and is not relegated to an action of trespass.74

“Jones v. Williams, 36 L. T. N. S. 550.

* Farrer v. Nelson, 15 Q. B. D. 258.

* Jeffryes v. Evans, 19 C. B. N. S. 246.

® Gearns v. Baker, L. R. 10 Ch. App. 355.

* Reg. v. Wood, 1 F. & F. 470; Reg. v. Price. 5 Cox C. C. 277.
”’ Garcia v. Gunn, 119 Cal. 315.

RIGHT TO SHOOT IN PRIVATE LANDS. 571

Under a statute providing that every agreement, condition
or arrangement which purports to divest or alienate the rights
of the occupier of land to kill and take ground game or which
gives him any advantage in consideration of his forbearing,
shall be void, it was held that an agreement by the occupier
of a farm with the sole right of taking game and rabbits on
it, to let for an annual sum the sole right of killing all winged
game, hares and rabbits on his farm, was not invalid.7* In
Ohio it was held that the statutory right of the owner of land
to use ferrets to catch rabbits was personal and that his per-
mission to another would not relieve the latter from the pen-
alty.78

A statute against the use of fire-arms, poison and spring-
traps in killing ground game was held not to apply to the
owner of land doing acts on his own land.**

The right of free warren is divisible.”° But free warren
cannot be parcel of a manor and therefore will not pass by
a grant of the manor with the appurtenances, though it is
held with the manor. Warren can appertain to a manor
only by prescription.’®

The demise of the exclusive right of sporting over a farm
does not justify the lessee in turning out on it game not bred
thereon in the ordinary way; and, it seems, in such a case
the lessor is justified in keeping down the excess.“ It was
held in one case that one having the right to shoot has no
right to turn rabbits on a farm without express leave and is
liable for the damage they do; 7® while in another case it was

* Morgan v. Jackson, [1895] 1 Q. B. 885.

As to the right of a tenant to employ a person to kill ground game,
see Richardson v. Maitland, 24 Rettie (Sc. Ct. Justic.) 32; Bruce v.
Prosser, 25 id. 54.

® Hart v. State, 29 O. St. 666.

* Smith v. Hunt, 54 L. T. N. S. 422.

* Beauchamp (Earl) v. Winn, L. R. 6 H.,L. 223.

© Morris v. Dimes, 3 N. & M. 671. Grouse are not birds of warren:
Devonshire (Duke) v. Lodge, 7 B. & C. 36.

” Birkbeck v. Paget, 31 Beav. 403. ™ Hilton v. Green, 2 F. & F. 821.

572 GAME LAWS.

held that he is not liable for damage done by rabbits or birds
unless he has turned out an unreasonable and excessive num-
ber.7® Rabbits were held not to be “game” within the mean-
ing of Stat. 27 Geo. 3, c. 35, or 27 & 28 Vict. c. 67, inflicting
a penalty on trespassing “in pursuit of game.” °° Where an
act imposed a penalty on one carrying a gun without a license,
but excepted an occupier doing so for the purpose only of
scaring birds or of killing vermin, it was held that rabbits
were not “vermin” within the meaning of the statute.*! The
reservation in a lease of the right of shooting and sporting
over the land demised is not limited to game strictly so called
but reserves to the lessor the exclusive right to follow and
shoot such animals as are in common parlance understood to
be the subject of sport.®?

An action does not lie against a man for making coney
burrows in his own lands “for so soon as the conies come
on his neighbor’s land he may kill them, for they are fere
nature and he who makes the coney burrows has no prop-
erty in them, and he shall not be punished for the damage
which the conies do in which he has no property, and which
the other may lawfully kill.” 8%

Firing at wild fowl near a decoy so as to make birds take
flight is an unlawful disturbance for which an action on the
case lies.** And one whose game is enticed away by a
neighbor is liable to an action for exploding combustibles so
as to be a nuisance to the latter, in order to frighten away
the game from his land and prevent his killing them and en-
ticing other game.®®

® Paget v. Birkbeck, 3 F. & F. 683. And see Stanser v. Bacon, 106
L. T. 430.

See 13 Ir. L. T. 315, on the subject of damages caused by rabbits.

“ Cleary v. De Vesci, [1895] 21. R. 704.

“Lord Advocate v. Young, 25 Rettie (Sc. Ct. Sess.) 778.

© Jeffryes v. Evans, 19 C. B. N.S. 246. “ Boulston’s Case, 5 Co. 104 b.

“ Carrington v. Taylor, 11 East 571; Keeble v. Hickeringill, Ibid. 574 n,
cited also in § 41, supra.

“ Tbottson v. Peat, 3 H. & C. 644, cited also in § 41, supra.

RIGHT TO SHOOT IN PRIVATE LANDS. 5738

With regard to trespassing in pursuit of game, it has been
held that one having the right to shoot over land may do
so only in the usual and reasonable way, and may not tread
over fields of standing crops at a time when it is not usual
or reasonable.8* But one of a hunt is not liable for damage
caused by the horses of the other members.87 If, however,
one goes out sporting with his friends and purposely leads
them on another’s land, he is equally guilty of a trespass,
though he may himself remain off the land.8® Permission
to shoot with “lessor, his heirs and assigns and any friend of
his or them” was held to be a privilege not confined to a
single friend at a time.8° Where the tenant of lands, with no
reservation of game by the landlord, and his lessee both give
leave to another to shoot, the latter cannot be convicted of
trespassing in pursuit of game.*°

A person is not justified in entering the land of another
against his will for the purpose of fox-hunting.®! But where
the demurrer admitted that the means adopted were the only
means for destroying the fox, it was held that the trespass was
justifiable.°? If a hunted stag runs into a barn for shelter,
the owner of the hounds and his servants have no right to
enter the barn, and, if they do so, they are trespassers.®*

Where the owner of land set up a sign “No shooting or
hunting allowed on these premises,” it was held to be a penal

* Hilton v. Green, 2 F. & F. 821.

7 Paget v. Birkbeck, 3 F. & F. 683.

* Hill v. Walker, Peake’s Add. Cas. 234. S. P. Baker v. Berkeley, 3 C.
& P. 32.

® Gardiner v. Colyer, 10 L. T. N. S. 715.

© Pochin v. Smith, 52 J. P. 4. And see, as to a license, Taylor v. Jack-
son, 78 L. T. N. S. 555.
~ ™ Paul v. Summerhayes, 4 Q. B. D. 9.

® Gundry v. Feltham, 1 Term 334.

* Baker v. Berkeley, 3 C. & P. 32.

The offenses of trespass in pursuit of game and unlawfully using a dog
for taking game, not having a license, are not the same: Bollard v.
Spring, 51 J. P. sor.

574 GAME LAWS.

offense, under a statute, to shoot and kill on the land though
within the channel of a navigable river.°*

Firing at game from a highway is “trespassing in pursuit of
game.” > And where one was on the highway for the ex-
press purpose of interfering with another’s right of shooting,
it was held that as he was there for purposes other than its
use as a highway, he was a trespasser.°* Where B.’s covert
adjoined A.’s field, and B. went on a public foot-path in this
field to shoot, directing his servant to beat his own covert
and hedge, it was held that he could not set up a claim of
right to oust the magistrate’s jurisdiction, no title being in-
volved, and should have been convicted.’

Where A. upon his own land shot at a pheasant which rose
from his land, but the act of shooting took place while the
pheasant was in the air over B.’s land, and the pheasant fell
dead on B.’s land and A. went over and picked it up, this was
held not to be a trespass in pursuit of game.°® But where
a pheasant was on the ground in an adjoining close and A.
shot it and then entered and picked the bird up, it was held
that the shooting and picking up were one continuous act
and would justify a conviction under the statute of “being
upon and entering land in pursuit of game.” °°

An injunction will lie for trespassing on game preserves

“ State v. Shannon, 36 O. St. 423. As to who is an “owner,” see Well-
ington v. State, 52 Ark. 266.

*“ Mayhew v. Wardley, 14 C. B. N. S. 550. And see Reg. v. Pratt, 24
E: as M. C. 113.

* Harrison v. Duke oF Rutland, [1893] 1 Q. B. rqz2.

See as to arrests in the highway for offenses against the game laws,
Lloyd v. Lloyd, 14 Q. B. D. 725; Turner v. Morgan, L. R. 10 C. P.
587; Clarke v. Crowder, 4 id. 638. And see Hall v. Robinson, 53 J. P.
310.

* Philpot v. Bugler, 54 J. P. 646.

* Kenyon v. Hart, 11 L. T. N. S. 733. And see Taunton v. Jervis, 43
J. P. 784.

” Osbond v. Meadows, 6 L. T. N. S. 290. And see Horn v. Raine,
78 id. 654, where the shooting and going upon the land were held to
form one transaction though they were several hours apart.

RIGHT TO SHOOT IN PRIVATE LANDS. 575

and killing and frightening away game, the remedy at law
being inadequate.’

The right of the owner of unenclosed land to shoot and
fish thereon exists even if the land be covered by navigable
water. The public can use it solely for purposes of naviga-
tion and must not unnecessarily disturb the right.1%

” Kellogg v. King, 114 Cal. 378, where by the Code, “animals wild by
nature are the subject of ownership while living only when on the land of
the person claiming them.”

Beatty v. Davis, 20 Ont. 373.

TITLE VII.

INJURIES TO ANIMALS BY RAILWAYS.

CHAPTER I.
LIABILITY IRRESPECTIVE OF FENCING LAWS.

131. General liability; negligence; 134. Animals running at large; con--

cause of injury. tributory negligence.

132. Duties of trainmen; rate of 135. Notice; action; parties; plead—
speed; signals. ing.

133. Liability for frightening ani- 136. Evidence.
mals. 137. Damages.

131. General Liability; Negligence; Cause of Injury—With
regard to the class of liabilities we are now about to consider,
it was said in a leading text-book on the Law of Railways:
“The decisions upon the subject of injuries to domestic ani-
mals by railways are very numerous, but may be reduced to:
comparatively few principles.” 1 It will be unnecessary to-
enter into the details of all these cases to as full an extent as:
has hitherto been done in this work. Most of them have
been decided on a particular state of facts and to attempt to-
sum up all such facts would result in an array of material
that could be only confusing. Accordingly, the principles
of decision in the important cases will be stated as concisely
as possible.

The natural division into which the cases fall is that arising:

*r Redf. Rys., 6th ed., 183.
576

GENERAL LIABILITY ; NEGLIGENCE, ETC. 577

from the effect on the liability of railway companies of statutes
compelling them to fence their tracks. In the present chap-
ter their liability will be considered irrespective of such
statutes.

It may be laid down as a general rule that the responsibility
of the company for the death of or injury to an animal is
one that depends on negligence, and that it is incumbent on
the plaintiff to show such negligence,” and that it contributed
to the injury.2 The effect of statutes making the injury itself
prima facie evidence of negligence will be considered in a
later section.* Where the common-law rule requiring the
owner of animals to restrain them is in force, the company
is ordinarily responsible only for wanton or wilful misconduct
or for gross negligence amounting to it. Where this rule is
not in force and the company is not obliged to fence, it must
use ordinary care and diligence.” A statute making the
company absolutely liable for the killing of stock, irrespec-
tive of negligence, has been held unconstitutional.®

The negligence of the company must be the proximate
cause of the injury; otherwise, there can be no recovery.
Thus, where cattle stopped on a highway by a standing train
were injured by another train, the obstruction caused by the

2 Alexandria & M. R. Co. v. Miles, 76 Va. 773; Turner v. St. Louis
& S. F. R. Co., 76 Mo. 261; Savannah, F. & W. R. Co. v. Geiger, 21
Fla. 660; New Orleans & N. E. R. Co. v. Thornton, 65 Miss. 256;
Davidson v. Cent. Ia. R. Co., 75 Ia. 22; Tex. Cent. R. Co. v. Childress, 64
Tex. 346.

® Nashville, C. & St. L. R. Co. v. Hembree, 85 Ala. 481; Jeffersonville
R. Co. v. Martin, 10 Ind. 416.

*See § 136, supra.

® See the note to Tonawanda R. Co. v. Munger [5 Denio (N. Y.) 255],
in 49 Am. Dec. 261.

See §§ 70, 71 supra, with reference to the common-law rule.

See also Great Western R. Co. v. Thompson, 17 Ill. 131; St. Louis, A.
& T. H. R. Co. v. Linder, 39 id. 433; Rockford, R. I. & St. L. R. Co.
v. Rafferty, 73 id. 58; Pittsb., Cinc. & St. L. R. Co. v. Stuart, 71 Ind. 500.

®Un. Pac. R. Co. v. Bullis, 6 Colo. App. 64; Denver & R. G. R. Co.
v. Wheatley, 7 id. 284.

37

578 LIABILITY IRRESPECTIVE OF FENCING LAWS.

former train was held to be too remote a cause of injury to
make the company liable.* And the fact that the company
was negligent in failing to provide stock-pens, whereby cattle
escaped and were killed by one of its trains, would not alone
make it liable, if its agents and employees were free from fault
at the time of the killing.8 Where one walking by a track
was struck by a cow which was thrown from the track by
the engine, the injury was held to be a proximate result of
striking the cow and the company was held liable, if the
engineer was negligent, though there was no negligence
towards the plaintiff.2 Where the animal is badly wounded
and the owner kills it to put it out of suffering, the com-
pany is liable for the killing.*° Damages from the non-
thriving of cattle owing to the construction of a railway
through a pasture where they are feeding are not remote or
‘speculative but are recoverable in an action of trespass quare
clausum fregit.4

Where the company left an unnecessarily large space be-
tween the rail and a plank placed beside it to facilitate the
passing of teams, it was held liable to the owner of a horse
fatally injured by catching its hoof therein and wrenching
it off.12 Otherwise, where a horse caught its foot at a private
crossing, not used by the company or serviceable to it.!®
So, the company was held liable for the death of a horse
caused by its stepping on a spike in an overturned plank at
a railway crossing which employees were repairing, where
they invited the owner to drive across and he did not see

"Brown v. Wabash, St. L. & P. R. Co., 20 Mo. App. 222. And see
Hyer v. Chamberlain, 46 Fed. Rep. 341.

* Louisville & W. R. Co. v. Hall (Ga.), 32 S. E. Rep. 860.

° Ala. G. S. R. Co. v. Chapman, 80 Ala. 615.

* Atchison, T. & S. F. R. Co. v. Ireland, 19 Kan. 4os.

* Balt. & O. R. Co. v. Thompson, 10 Md. 76.

* Cuddeback wv. Jewett, 20 Hun (N. Y.) 187. And see Cotton v. New
‘York, L. E. & W. R. Co., 20 N. Y. Suppt. 347.

* Pratt Coal & Iron Co. v. Davis, 79 Ala. 308.

GENERAL LIABILITY ; NEGLIGENCE, ETC. 579

the spike.’* Where the company converts to its own use
another’s animal killed by it, it may be made liable in dam-
ages whether the killing was negligent or not.!®

The company is liable where the animal was attracted to
the track by salt spilled by employees and negligently left
there;1® or by molasses from its cars.17 And where stock
was killed by eating cotton-seed scattered near the track, the
company must, to overcome the presumption of negligence,
show that its servants had used reasonable care.18 Evidence
that the drainage of brine from a refrigerator had attracted
animals for more than a year shows negligence.’® But it
was held not negligence per se to leave a car, loaded with
hay in the afternoon, on a track over night,—the plaintiff’s
cow having been killed while eating the hay.2° And the act
of an agent of a railway company, who also kept a store
at the station, in placing an open barrel of salt under a ware-
house situated beside the track and belonging to a third
person, though on the company’s right of way, was held not
to be the act of the company so as to render it liable for
injuries to cattle attracted thereby and killed by a train.?!
Nor is a company leasing lands for the purposes of a grain
elevator liable for killing stock that may be attracted by grain
dropped in loading cars from the elevator.2?_ The use of salt
to free switches from ice, thereby attracting animals, does

“Terre Haute & I. R. Co. v. Grandfield, 58 Ill. App. 136.

And see Harper v. Mo., K. & T. R. Co., 70 Mo. App. 604; Kimes
v. St. Louis, I. M. & S. R. Co., 85 Mo. 611.

As to an injury received by reason of the switch premises not being in
good condition, see Chic. & I. R. Co. v. De Baum, 2 Ind. App. 281.

*® Atchison, T. & S. F. R. Co. v. Tanner, 19 Colo. 559.

* Crafton vw. Hannibal & St. J. R. Co., 55 Mo. 580.

™ Page v. No. Car. R. Co., 71 N. C. 222.

* Tittle Rock & F. S. R. Co. v. Dicks, 52 Ark. 402.

% Morrow v. Hannibal & St. J. R. Co., 29 Mo. App. 432.

* Harlan v. Wabash, St. L. & P. R. Co., 18 Mo. App. 483.

™ Burger v. St. Louis, K. & N. R. Co., 123 Mo. 679, reversing 52 Mo.
App. I19.

” Gilliland v. Chic. & A. R. Co., 19 Mo. App. 411.

580 LIABILITY IRRESPECTIVE OF FENCING LAWS.

not render the company liable for injuring such animals,—
its principal duty being to its passengers.?*

In North Carolina it was held that a company must re-
move bushes or other growth, calculated to obstruct the view
of its engineers, to the outer bank of the side ditches, or
from all the ground of which it assumes actual dominion for
corporate purposes, and if it fails to do so and a horse is
killed because concealed in the bushes, it is liable.2* But in
a Texas case it was held that the company was not guilty of
negligence as a matter of law where it permitted weeds to
grow on the roadbed whereby a cow was struck and a passen-
ger injured—negligence being aquestion of fact for the jury.*®
And in Arkansas it was held that the fact that a clump of
bushes was allowed to grow so that trainmen could not see,
was not negligence. The court said: “This measure of
vigilance does not require a lookout over the entire breadth of
the right of way and an apprehension of danger whenever an
animal is discovered upon it. . . . How then can it be said
that the company owes him the duty of keeping the right of
way in such a condition as to afford its employees a view
of it?” *6

The company is not required to keep excavations along
the sides of the track free from water and ice, and is not
liable for animals killed in consequence of ice being therein,
so as to prevent escape from the track.27

* Kirk v. Norfolk & W. R. Co., 41 W. Va. 722: Louisville, N. O. &
T. R. Co. v. Phillips (Miss.), 12 South. Rep. 825.

“Ward v. Wilmington & W. R. Co., 113 N. C. 566. And see Same v.
Same, 109 id. 358.

* San Antonio & A. P. R. Co. v. Long, 4 Tex. Civ. App. 497. And see
Eames v. Tex. & N. O. R. Co., 63 Tex. 660, where the company was held
liable, the facts being admitted by demurrer. The court said: “It is a
question of fact, in the given case, whether the omission or neglect, which
is imputed as the cause of the accident, constituted neglect or not.”

* Kansas City, S. & M. R. Co. v. Kirksey, 48 Ark. 366.

For cases on the necessity of keeping a lookout, see § 132, infra.

“Peoria & R. I. R. Co. « McClenahan, 74 Ill. 435.

GENERAL LIABILITY ; NEGLIGENCE, ETC. 581

It is the duty of the company to carry a headlight to
avoid collision, though this may prevent the engineer from
seeing objects on the track, as a result of which cattle are run
over.*8 A non-expert witness may testify his opinion as
to how far the headlight throws a light forward and to the
right and left.?°

A question that has often arisen is whether or not, under
the statute, an action lies against a railway company where
there has been no actual collision between the engine or cars
and the animal. The wording of the particular statute has
been an important factor in the decision of these cases. In
New York, where the action is grounded on an injury caused
by the company’s “engines or agents,” it has been held that
actual contact is necessary: an injury caused by jumping
from the track is not a sufficient basis of action.2® So, a
company is not liable for an injury to an animal straying
on the track and becoming caught between the ties of a
bridge: the bridge cannot be said to be an “agent.” * It
is otherwise where the animal is not a trespasser and dies as
the result of falling into a cut, owing to the company’s failure
to fence, as that is a case outside of the scope of the statute.*?

So, in Indiana, where the statute makes the company liable
when stock is killed or injured by the locomotive or cars,
a collision must be averred and shown.** But this does not

* Bellefontaine & Ind. R. Co. v. Schruyhart, to O. St. 116.

> St. Louis & San Fran. R. Co. v. Thomason, 59 Ark. 140.

Hyatt v. New York, L. E. & W. R. Co., 64 Hun (N. Y.) 542.

" Knight v. New York, L. E. & W. R. Co., 99 N. Y. 25, reversing
30 Hun (N. Y.) 25.

® Graham v. Delaware & H. Can. Co., 46 Hun. (N. Y.) 386, distinguish-
ing Knight v. N. Y., L. E. & W. R. Co., supra, as in that case the
plaintiff did not own the premises adjoining the railway and the defendant
was therefore guilty of no negligence with respect to fences between its
road and his land, and he was entitled to no relief except by statute, which
statute did not apply.

® Ohio & Miss. R. Co. 7. Cole, 41 Ind.. 331; Pittsburgh, Cc. & St. L. R.
Co. v. Troxell, 57 id. 246; Balt, P. & C. R. Co. v. Thomas, 60 id. 107;
Croy v. Louisville, N. A. & C. R. Co., 97 id. 126; Jeffersonville, M. & I.

582 LIABILITY IRRESPECTIVE OF FENCING LAWS.

prevent a common-law action for negligence as where, under
certain circumstances, an animal was frightened and jumped
off a trestle; 34 and where the defendant’s employees, refusing
to wait till help could be had to remove a colt from a trestle,
kicked and threw it off, thereby causing its death.*°

In Tennessee, where the statute renders the company liable
for an “accident or collision,” it is not necessarily liable for
failure to sound the whistle where the animal is frightened
and runs on a trestle. ‘The accident must be so far in the
nature of a collision as to be produced by the train, as, for
example, by steam from the engine, the shaking of the train,
or the rush of wind created by its rapid motion. Beyond
such possible cases, the two words are only different ex-
pressions of the same thing.” °® And in South Carolina it has
been held that injuries caused by the frightening of horses are
not caused by “collision” within the meaning of the statute.3*

In Missouri, under the statute giving double damages for
stock killed by trains, an actual collision must be proved,3*
though this may be done inferentially.2® But this does not
prevent the bringing of a common-law action where there
was no collision.*°

R. Co. v. Dunlap, 112 id. 93; Childers v. Louisville, N. A. & C. R. Co,
12 Ind. App. 686.

“ Indianapolis, B. & W. R. Co. v. McBrown, 46 Ind. 220.

* Fort Wayne, C. & L. R. Co. v. O'Keefe, 4 Ind. App. 249. See the
comments on the act of 1885 in this case.

° Holder v. Chic., St. L. & N. O. R. Co., 11 Lea (Tenn.) 176. And see
Nashville, C. & St. L. R. Co. v. Sadler, 91 Tenn. 508, where it was held
that actual contact must be shown. See, also, Sinard v. Southern R. Co.,
Iol id. 473.

“ Kinard v. Columbia, N. & L. R. Co., 39 S. C. 514; Whilton 7. Rich-
mond & D. R. Co., 57 Fed. Rep. 551.

* Foster v. St. Louis, I. M. & S. R. Co., 90 Mo. 116; Lafferty v. Hanni-
bal & St. J. R. Co., 44 id. 291; Seibert v. Mo., Kan. & T. R. Co., 72 id.
565; Lowry vw. St. Louis & H. R. Co., 40 Mo. App. 554. See a comment
on these cases, disapproving of them, in 25 Am. L. Rev. 174.

* Harbeston v. Kan. City, Ft. S. & M. R. Co., 65 Mo. App. 160.

* Lowry v. St. Louis & H. R. Co., supra.

As to liability under the Missouri statutes, see 11 L. R. A. 426 n.

GENERAL LIABILITY ; NEGLIGENCE, ETC. 083:

In Colorado it would seem that the company is liable only
where the animal is struck by the engine.*? In Texas, where
the animal must be “injured by the locomotive and cars

. in running over” the railway, a company is not liable
for an animal injured on a trestle through fright and not
by contact.** In a recent case, however, it was said: “The
decisions of our Court of Appeals, holding that to render a
railroad liable under our statute for stock killed it is necessary
to show actual contact with the cars, do not apply to a
case where other negligence than a failure to fence the track
is shown to have been the proximate cause of the injury:”
and the case was decided accordingly.#

So in Illinois where the statute provided that, if the re-
quired fences were not erected or were not kept in good re-
pair, an action lay for damages by the ‘agents, engines or
cars” of the company, it was held that in an action brought
under the statute actual contact must be shown.## = But
where the statute prohibited the running of trains in towns
at a greater rate of speed than the ordinance allowed, and
the plaintiff’s horses were frightened by a train so run, it was
held that no collision need be proved. Such an action was
brought, not to recover for “damages done to the person
or property by such train, locomotive engine or car,” but
for a penalty for violation of the statute.*®

In Iowa, however, where the company has failed to fence,
the injury need not have been caused by collision: if the ani-
mal jumps from the track through fright or runs along the

”" Denver & R. G. R. Co. v. Nye, 9 Colo. App. 94.

“Tnternational & G. N. R. Co. v. Hughes, 68 Tex. 290. And see Gulf,
Cc. & S. F.R. Co. w. Ritter, 4 Tex. App. (Civ. Cas.) 212; Tex. & Pac.
R. Co. v. Mitchell, Ibid. 454.

* Tex. & Pac. R. Co. v. McDowell, 7 Tex. Civ. App. 341.

“ Schertz v. Indianapolis, B. & W. R. Co., 107 Ill. 577.

” Chic. & East. Ill. R. Co. v. Peo., 120 Ill. 667. And see Ill. Cent. R.
Co. v. Crawford, 169 id. 554, where a general distinction is made in this
respect between statutes regulating speed and those requiring the erec--
tion of fences.

584 LIABILITY IRRESPECTIVE OF FENCING LAWS.

track into a bridge and is killed, the company is liable.**
This is the law also in Nebraska.**

In Kansas, where the statute makes the company liable for
injuries caused “in operating such railway,” no actual colli-
sion need be shown.#® In Oregon, the statute makes the
company liable for injuries near an unfenced track when
caused by a moving train upon such track, and this was held
to extend to the case of a horse injured by falling from a
trestle, whether there had been actual collision or not.4® In
a Mississippi case it was held that evidence that a horse was
injured by rushing into a pit through fright, without having
been struck by the train, would not support a judgment
against the railway company, as no wrong of its servants had
been shown, though it was said that a company might be re-
sponsible for such wrong though there had been no actual
contact.°°

In Canada, a company not complying with the statutory
requirement of ringing the bell when approaching a crossing
was held liable for injuries resulting to the occupants of a
carriage from the fright of a horse, though there had been
no actual contact.*!

And, in general, it may be stated that the issue involved
in the above cases is ordinarily one of statutory interpretation
and that, irrespective of actions brought under particular
statutes, there are in all the jurisdictions many instances of
railway companies’ incurring a common-law liability for the

“Van Slyke v. Chic., St. P. & K. C. R. Co., 80 Ia. 620; Liston v. Cent.
la. R. Co., 70 id. 714.

“Chic, B. & Q. R. Co. v. Cox, 51 Neb. 479, following Fremont. E.
& M. V. R. Co. v. Pounder, 36 id. 247, and overruling Burlington & M. R.
R. Co. v. Shoemaker, 18 id. 360.

“ Atchison, T. & S. F. R. Co. v. Jones, 20 Kan. 527; Same v. Edward,
Ibid. 531; Mo. Pac. R. Co. v. Eckel, 49 id. 704.

“ Meeker v. Northern Pac. R. Co., 21 Oreg. 513

“ New Orleans & N. E. R. Co. v. Thornton, 65 Miss. 256.

“Grand Trunk R. Co. v. Sibbald, 20 Can. Sup. Ct. 259.

GENERAL LIABILITY ; NEGLIGENCE, ETC. 585

result of their negligence, as in the case of frightening

animals, where no question of direct collision arises at
allo?

132. Duties of Trainmen; Rate of Speed; Signals.—In con-
sidering the responsibility of railway companies for injuries
to animals caused by the acts or omissions of their employees,
it must be remembered that the first duty of the latter is to
the persons on the train, and that this is paramount to that
of trying to avoid injury to animals on or near the track.
This principle has been frequently applied where the question
has been whether the speed of the train should or should not
have been slackened. “In such case the first duty of the
engineer is for the safety of his passengers and it is held that,
when he cannot stop his train before striking the cattle, he is
justified in running at a high rate of speed, if in so doing there
is less danger of derailing his train, though the result is to
render the escape of the cattle more difficult.” ** So, the
engineer may prefer his own safety to that of the animal.®®
Conversely, where the collision should have been avoided,
the company is liable for resulting injuries to passengers.°®
Thus, where an animal knocked down by a train was left too
close to the track, the company was held liable for an injury
to a passenger by the derailment of a later train, if the em-
ployees on the first train knew that the animal was knocked

® See § 133, infra, with regard to liability for frightening animals.

® Witherell v. Milwaukee & St. P. R. Co., 24 Minn. 410; Kentucky
Cent. R. Co. v. Lebus, 14 Bush (Ky.) 518; Kirk v. Norfolk & W. R. Co.,
4t W. Va. 722; Wallace v. St. Louis. I. M. & S. R. Co., 74 Mo. 594.

“Robinson v. Flint & P. M. R. Co. 79 Mich. 323, citing 1 Thomp.
Negl. 506. And see Bemis v. Conn. & P. R. R. Co., 42 Vt. 375; Judd
v. Wabash, St. L. & P. R. Co., 23 Mo. App. 56; E. Tenn., Va. & Ga. R.
Co. v. Selcer, 7 Lea (Tenn.) 557; Bunnell v. Rio Grande W. R. Co., 13
Utah 314; Chic., St. L. & N. O. R. Co. v. Jones, 59 Miss. 465.

® Vaz00 & M. V. R. Co. v. Brumfield, 64 Miss. 637.

* Atchison, T. & S. F. R. Co. v. Elder, 50 Ill. App. 276; Eames v. Tex.
& N. O. R. Co., 63 Tex. 660.

586 LIABILITY IRRESPECTIVE OF FENCING LAWS.

down and was so near the track as to endanger the safety
of other trains.®”

In some jurisdictions it has been held not sufficient to show
that the engineer used reasonable diligence after discovering’
the animal: he must keep a proper lookout all the time and
is negligent if he fails to do so,58 except. of course, where that
would interfere with important duties.®® In other States it
is held that where there has been no negligence with regard
to fencing, and the presence of the animal is not to be reason-
ably anticipated, no lookout need be kept: care after dis-
covery is sufficient.°° In Arkansas it has been held that an
animal running at large not being a trespasser, a lookout
must be kept.64 But now the rule there appears to be that

™ Mexican C. R. Co. v. Lauricella (Tex. Civ. App.), 26 S. W. Rep. 301..

“FE. Tenn., V. & G. R. Co. v. Watson, 90 Ala. 41; Western R. of Ala. v.
Lazarus, 88 id. 453; Louisville & N. R. Co. v. Rice. 101 id. 676; Ala. G.
S. R. Co. v. Moody, 92 id. 279; Louisville & N. R. Co. wv. Posey. o6 id.
262; Cent. R. & Bkg. Co. v. Lee, Ibid. 444; Birmingham Mineral R. Co.
v. Harris, 98 id. 326; Carlton v. Wilmington & W. R. Co., 104 N. C. 365;
Omaha & R. V. R. Co. v. Wright, 47 Neb. 886; Cine. & Z. R. Co. ».
Smith, 22 O. St. 227; Louisv. & Nashv. R. Co. v. Stone, 7 Heisk. (Tenn.)
408; Layne v. Ohio River R. Co., 35 W. Va. 438; McMaster v7. Montana.
Un. R. Co., 12 Mont. 163; Gulf, C. & S. F. R. Co. v. Washington, 49 Fed.
Rep. 347; Same v. Johnson, 54 id. 474.

° E. Tenn., Va. & Ga. R. Co. v. Bayliss, 77 Ala. 420, 74 id. 150; Same
v. Baker, 94 id. 632; Ill. Cent. R. Co. v. Burns, 32 Ill. App. 196; Howard
v. Louisville, N. O. & T. R. Co., 67 Miss. 247; Rogers v. Georgia R. Co.,.
100 Ga. 699.

And it is not incumbent on the company to have a third employee on
the engine to keep such lookout: Rogers v. Georgia R. Co., supra.

° Brooks v. Hannibal & St. J. R. Co., 27 Mo. App. 573 [Cf. Same v-
Same, 35 id. 571]; Welch v. Same, 20 id. 477; Jewett v. Kan. City, C. &
S. R. Co., 38 id. 48; Castor v. Kan. City, Ft. S. & M. R. Co., 65 id. 359;
Averill v. Santa Fé Reers., 72 id. 243; Ill. Cent. R. Co. v. Noble, 142 IIL.
578; Delta Electric Co. v. Whitcamp, 58 Il]. App. 141; Stacey v. Winona
& St. P. R. Co., 42 Minn. 158; Palmer v. North. Pac. R. Co., 37 id. 2233
Mooers v. Same, 69 id. 90; Home Constr. Co. v. Church, 14 Ky. L. Rep.
807; Harrison 7. Chic., M. & St. P. R. Co., 6S. D. 100: Houston & T.
C. R. Co. v. Carruth (Tex. Civ. App.), 50 S. W. Rep. 1036.

“Little Rock & Ft. S. R. Co. v. Finley, 37 Ark. 562. And see Gulf, C..
& S. F. R. Co. «. Johnson, 54 Fed. Rep. 474.

DUTIES OF TRAINMEN ; RATE OF SPEED; SIGNALS. 587

it is not necessary to keep a perpetual lookout for animals on
the track.°? In Minnesota the rule that a lookout is not
necessary in the case of a trespassing animal has been held to
apply to the case of an animal wrongfully on the highway at a
railway crossing.** Where the statute requires a lookout to
be kept, it need not be shown that it has always been kept:
it is sufficient for the company to prove that the precaution
was observed when the accident happened.* And where
keeping a lookout would have availed nothing, the animal
having been concealed from view, the fact that none was kept
affords no ground for recovery.®* The engineer, where he
does not see the animal, need not necessarily attend to the
gestures of third persons.**

When an animal on the track is seen in time to avoid col-
lision, the duty of the engineer depends somewhat on cir-
cumstances. He need stop the engine only where there is
a reasonable apprehension that the animal will remain there.*”
But there is no presumption that the animal will step from
the track in time to avoid injury.*® And where a team was
stationary on the track, the engineer was held guilty of neg-
ligence in assuming that it would be removed in time, whereas
the wagon was stalled.£° On the other hand, where an en-
gineer saw horses attached to a load of logs a mile away, he

* Memphis & L. R. R. Co. v. Kerr, 52 Ark. 162.

* Palmer v. North. Pac. R. Co., 37 Minn. 223.

Cf. Harrison v. Chic., M. & St. P. R. Co., 6 S. D. roo.

“ Louisville & Nashv. R. Co. wv. Stone, 7 Heisk. (Tenn.) 468.

The approved equipment of the train is not a sufficient defence: Mo-
bile & B. R. Co. v. Kimbrough, 96 Ala. 127.

® Choate v. Southern R. Co. (Ala.), 24 South. Rep. 373.

“ Dennis v. Louisville, N. A. & C. R. Co., 116 Ind. 42.

* Grimmell v. Chic. & N. R. Co., 73 Ia. 93; Little Rock & Ft. S. R. Co.
v. Trotter, 37 Ark. 593; Warren v. Chic., M. & St. P. R. Co., 59 Mo. App.
367.

*® Dennis v. Louisville, N. A. & C. R. Co., 116 Ind. 42; Elmsley 7. Ga.
Pac. R. Co. (Miss.), 10 South. Rep. 41. ,

* Chic. & Alton R. Co. v. Hogarth, 38 Ill. 370. And see Saffer v.
Westchester Elec. R. Co., 22 Misc. (N. Y.) 555.

588 LIABILITY IRRESPECTIVE OF FENCING LAWS.

was held not to be sufficiently warned that the load was
fast and could not be moved, and the plaintiff was held guilty
of contributory negligence in not unhitching the horses,
as he could have done, when he saw the smoke of the
approaching train.7? And where a boy, the plaintiff’s agent,
rode a horse on a track without a bridle and therefore failed
to get him off in time, no recovery was allowed, the en-
gineer not having been grossly negligent in failing to signal,
as he had a right to expect a person on the track to act
with reasonable care and caution.”

Where a collision is to be apprehended, blowing the whistle
to frighten the animal is not sufficient: the train should be
stopped, or, at least, its speed slackened.*? Thus, it is gross
negligence where the engineer drives the animals to a place
where there is little probability they can leave the track and
does not stop.** And it is immaterial that the engineer does
not recognize the nature of the obstacle.7* But in a New York
case where the engineer sounded the whistle for a quarter of
a mile but did not slow up and the horse could have got off
the track at any time but did not do so and was killed, it was
held that there could be no recovery without proof of wanton-
ness.° The engineer should stop also to avoid a self-inflicted

*® Frost v. Milwaukee & N. R. Co., 96 Mich. 470.

™ Wabash, St. L. & Pac. R. Co. v. Krough, 13 Ill. App. 431.

™ Campbell v. Great West. R. Co., 15 U. C. Q. B. 408; Bullington v.
Newport News & M. V. Co., 32 W. Va. 436; Kan. City, M. & B. R. Co.
uv. Watson, 91 Ala. 483; Ala. Gt. South. R. Co. v. Powers, 73 id. 244;
Chattanooga S. R. Co. v. Daniel (Ala.), 25 South. Rep. 197; Chic. &
Alton R. Co. v. Kellam, 92 Ill. 245; Toledo, W. & W. R. Co. v. McGinnis,
71 id. 346; Chic. & N. R. Co. v. Barrie, 55 id. 226; Ohio & M. R. Co.
v. Stribling, 38 Ill. App. 17; Shuman v. Indianapolis & St. L. R. Co., 11
id. 472; Mo. Pac. R. Co. v. Gedney, 44 Kan. 329; Mobile & O. R. Co.
v. Gunn, 68 Miss. 366; Lawson v. Chic., R. I. & P. R. Co., 57 Ia. 672;
Snowden v. Norfolk S. R. Co., 95 N. C. 93; Denver & R. G. R. Co. v.
Nye, 9 Colo. App. 94.

"Til. Cent. R. Co. v. Baker, 47 Ill. 295. And see St. Louis, I. M. & S.
R. Co. v. Bragg (Ark.), 5 S. W. Rep. 273.

™ Gilchrist v. Reg., 2 Can. Exch. 300.

® Boyle v. New York, L. E. & W. R. Co., 39 Hun (N. Y.) 171.

DUTIES OF TRAINMEN ; RATE OF SPEED; SIGNALS. 589

injury to a frightened animal."* The question of speed is
considered further, infra.

If the animal is on or dangerously near the track, every
effort should be made to frighten it away.77 Where there
is nothing to show that an animal near the track will go on
it, it is not necessary to stop or slacken speed "8 or give sig-
nals,’® unless this is necessary to frighten such animal away.*®°
The company is not liable unless it is in some fault with re-
gard to fences, etc., for killing an animal that suddenly
springs on the track in front of the engine; *! and, in general,
where the accident was inevitable in spite of every precaution,
no liability is incurred.8? Nor need ordinary precautions

* Newman v. Vicksburg & M. R. Co., 64 Miss. 115.

™ Kan. City, M. & B. R. Co. v. Watson, 91 Ala. 483; South & North
Ala. R. Co. v. Jones, 56 id. 507; Mo. Pac. R. Co. v. Gedney, 44 Kan. 329;
East Tenn., V. & G. R. Co. v. Burney, 85 Ga. 635; Port Royal & W.
C. R. Co. v. Phinizy, 83 id. 192; Warren v. Chic., M. & St. P. R. Co., 590
Mo. App. 367; McMaster v. Mont. Union R. Co., 12 Mont. 163; Memphis
& C. R. Co. uv. Scott, 87 Tenn. 494.

*® Young v. Hannibal & St. J. R. Co., 79 Mo. 336; Grant v. Same, 25
Mo. App. 227: Sloop v. St. Louis, I. M. & S. R. Co., 22 id. 593; Milburn
v. Hannibal & St. J. R. Co., 21 id. 426; New Orleans & N. R. Co. v.
Bourgeois, 66 Miss. 3; Yazoo & M. V. R. Co. v. Brumfield, 64 id. 637;
Same v. Whittington, 74 id. 410; Peoria, P. & J. R. Co. v. Champ, 75
lll. 577; St. Louis, A. & T. H. R. Co. v. Russell, 39 Ill. App. 443; Robin-
son v. Flint & P. M. R. Co., 79 Mich. 323; Louisv. & N. R. Co. v. Bowen
(Ky.), 39 S. W. Rep. 31.

® Chic., Burlington & Q. R. Co. v. Bradfield, 63 Ill. 220.

“ Bast Tenn., V. & G. R. Co. v. Watson, 90 Ala. 41; Western R. Co.
v. Lazarus, 88 id. 453.

"FE, Tenn., V. & G. R. Co. v. Bayliss, 77 Ala. 429; Ala. G. S. R. Co.
v. Moody, 90 id. 46; Same v. Smith, 85 id. 208; Louisville & N. R. Co.
v. Brinckerhoff (Ala.), 24 South. Rep. 892; Ga. R. & Bkg. Co. v. Middle-
brooks, 91 Ga. 76; Douglas v. E. Tenn, V. & G. R. Co., 88 id. 282;
Wabash R. Co. v. Aarvig, 66 Ill. App. 146; Ill. Cent. R. Co. v. Wren, 43
Ill. 77; Judd v. Wabash, St. L. & P. R. Co., 23 Mo. App. 56; Davis v.
Wabash R. Co., 46 id. 477; Wattson v. Phila. & T. R. Co., 7 Phila. (Pa.)
249; Galveston, H. & S. A. R. Co. v. Wink (Tex. Civ. App.), 31 S. W.
Rep. 326.

That the presence of a runaway horse in a street is not to be foreseen,
see Phillips v. People’s Pass. R. Co., 190 Pa. St. 222.

® Nashville, C. & St. L. R. Co. v. Hembree, 85 Ala. 481; Mobile & G.

590 LIABILITY IRRESPECTIVE OF FENCING LAWS.

be taken where they would not be of the slightest use.8* It
has been held, however, that a company using the plaintiff’s
land, even with his consent, is bound not to injure his cattle
and that it is immaterial that the company was not bound
to fence or could. not have avoided striking the animal after it
was seen.84

Ordinary care to avoid the injury is, as a rule, all that is
required.8® But it is harmless error to charge that the en-
gineer must use the “utmost care” where it is evident that no
care at all was exercised.®* Where negligence could be im-
puted from the act of either the engineer or the fireman

R. Co. v. Caldwell, 83 id. 196; St. Louis & S. F. R. Co. v. Basham, 47
Ark. 321; Little Rock & Fort S. R. Co. v. Turner, 41 id. 161; Same v.
Holland, 40 id. 336; Higgins v. Wilmington City R. Co., 1 Marv. (Del.)
352; Savannah, F. & W. R. Co. v. Rice, 23 Fla. 575; Ga., M. & G. R. Co.
v. Harris, 83 Ga. 393; Ga. R. & Bkg. Co. v. Wilhoit, 78 id. 714; Same v.
Wall, 80 id. 202; Western & Atl. R. Co. v. Trimmier, 84 id. 112; Moye v.
Wrightsville & T. R. Co., 83 id. 669; Savannah, F. & W. R. Co. v. Gray.
77 id. 440; Louisville, N. O. & T. R. Co. v. Tate, 70 Miss. 348; Yazoo &
M. V. R. Co. v. Smith, 68 id. 359; Louisville, N. O. & T. R. Co. v. Smith,
67 id. 15; New Orleans & N. R. Co. v. Burkett (Miss.), 2 South. Rep.
253; Seawell v. Raleigh & A. R. Co., 106 N. C. 272; Joyner v. So. Car. R.
Co., 26 S. C. 49; Lynch v. North. Pac. R. Co., 84 Wis. 348; McFie v.
Can. Pac. R. Co., 2 Ma. 6; Falconer 7. European & N. A. R. Co., 1 Pug.
(N. B.) 179.

“Savannah & W. R. Co. v. Jarvis, 95 Ala. 149; Nashville, C. & St. L.
R. Co. v. Hembree, 85 id. 481; Flattes v. Chic. R. I. & P. R. Co., 35 Ia.
191; Cleaveland v. Chic. & N. R. Co., Ibid. 220; E. Tenn., Va. & Ga. R.
Co. v. Scales, 2 Lea (Tenn.) 688, (refusing to follow the dictum in Nash-
ville & Chat. R. Co. v. Thomas, 5 Heisk. (Tenn.) 262); Hawker v. Balt.
& O. R. Co., 15 W. Va. 628.

“Matthews v. St. Paul & S.C. R. Co., 18 Minn. 434.

“Richmond & D. R. Co. v. Buice, 88 Ga. 180; Savannah, F. & W. R.
Co. v. Wideman, 99 id. 245; Little Rock and Fort S. R. Co. 7. Henson,
39 Ark. 413; Miss. Cent. R. Co. v. Miller, 40 Miss. 45; Mobile & O. R.
Co. v. Malone, 46 Ala. 391; Mo. Pac. R. Co. v,. Wilson, 28 Kan. 637;
Lake Erie & W. R. Co. v. Norris, 60 Ill. App. 112; Chic., M. & St. P.
R. Co. v. Phillips, 14 id. 265; Washington v. Balt. & O. R. Co., 17 W. Va.
190; Molair v. Port Royal & A. R. Co., 29 S. C. 152; Baker v. Chic., B.
& Q. R. Co., 73 Ia. 389; Atwood v. Bangor, O. & O. T. R. Co., 91 Me.
390; Beattyville & C. G. R. Co. v. Maloney (Ky.), 49 S. W. Rep. 545.

“St. Louis & S. F. R. Co. v. O'Loughlin, 49 Fed. Rep. 4qo.

DUTIES OF TRAINMEN ; RATE OF SPEED; SIGNALS. 591

in failing to see the animal in time, the company does not
exonerate itself by proving that the engineer used due care.87
The lack of due care is not excused by the fact that the ani-
mal was wrongfully on the track.8®& In South Carolina it has
been held that much less care is required of the company
since the passing of the stock law requiring stock to be en-
closed.S® But in a Georgia case it was held that an instruc-
tion that less care is required where the stock law is in force
or running through a field than where the land is unenclosed
was properly refused as ordinary care is always required,
though differing according to circumstances.°°

Where a dog is killed while trespassing by failure of the
engineer to exercise ordinary care, the company is liable.®'
So, a street railway company is liable for carelessly or wan-
tonly killing a dog, though the same degree of care is not
required as in the case of a human being; °? and the motorman
cannot rely on the alertness and quickness of the animal, so as
to relieve himself of all duty to try to prevent an accident.**

* Little Rock & M. R. Co. v. Chriscoe, 57 Ark. 192.

Toledo, P. & W. R. Co. v. Bray, 57 Ill. 514; Rockford, R. I. & St. L.
R. Co. v. Lewis, 58 id. 49; Cine. & Z. R. Co. v. Smith, 22 O. St. 227.

Where the animal is wrongfully on the track, there is no strict rule that
the engineer must slacken his speed: Bemis v. Conn. & P. R. R. Co., 42
Vt. 375. And while cattle running at large are not trespassers, the owner
who voluntarily lets them go in perilous places cannot ask the company
to slacken speed or drive them off in order to deliver them from such
peril: Smith v. Chic., R. I. & P. R. Co., 34 Ia. 506.

® Joyner v. So. Car. R. Co., 26 S. C. 49; Molair v. Port Royal & A.
R. Co., 29 id. 152; Harley v. Eutawville R. Co., 31 id. 151.

” Cent. R. Co. v. Summerford, 87 Ga. 626.

“St. Louis, Ark. & Tex. R. Co. v. Hanks, 78 Tex. 300. Cf. Tex. &
Pac. R. Co. v. Scott, 4 Tex. App. (Civ. Cas.) 476.

Dogs are personal property for the negligent killing of which a com-
pany is liable: St. Louis S. W. R. Co. v. Stanfield, 63 Ark. 643; Jones
v. Ill. Cent. R. Co., 75 Miss. 970; Salley v. Manchester & A. R. Co.
(S. C.), 32 S. E. Rep. 526.

“Furness v. Union R. Co., 8 Kulp (Pa.) 103; Meisch v. Rochester
Elec. R. Co., 72 Hun (N. Y.) 604. :

* Citizens’ Rapid-Transit Co. v. Dew, 100 Tenn. 317, where it was also
said that a company should have a sufficient number of employees on its

592 LIABILITY IRRESPECTIVE OF FENCING LAWS.

But where the whistle was sounded when the dogs were
first seen, a few feet in front of the engine, it was held that
they were entitled only to the consideration due trespassers
and that the company was not liable.** And the prima facie
presumption of negligence arising from injuries to persons
and property has been held not to apply to the killing of
dogs.%

If the injury to an animal could have been prevented by
proper care, the mere slackening of speed will not relieve the
company from liability.°° The fact that reversing the en-
gine hurts the machinery is no excuse for not slackening the
speed; otherwise, if the lives of persons on the train are en-
dangered.®* A train can ordinarily be slackened sufficiently
within a distance of two hundred yards and the burden is on
the defendant to show special circumstances rendering it un-
safe and impracticable to do so.°8 It is no defence that the
speed was slackened to the statutory rate at the moment of
collision, when it was unlawful just before.®® It is negligent
to run the train at night at such a rate of speed that stock
cannot be seen by the headlight in time to prevent injury;
but if the injury results from unusual causes, such as fog, fall-
ing snow, rain, etc., there is no negligence if due care is used
otherwise. And if a train is followed so closely by another

cars to operate them in a careful manner, so as to prevent injury to per-
sons and animals on the track.

* Fink v. Evans, 95 Tenn. 413.

* Jemison v. Southwestern R. Co., 75 Ga. 444; Wilson v. Wil. & Man. R.
Co., 10 Rich. L. (S. C.) 52. Contra, Jones v. Bond, 40 Fed. Rep. 281.

© Pontiac Pac. Junc. R. Co. v. Brady, Montr. L. Rep., 4 Q. B. 346.

This decision has been modified by subsequent legislation exonerating
the company from all liability for killing straying animals: Can. Pac. R.
Co. v. Cross, Rap. Jud. Quebec, 3 B. R. 170.

"E. Tenn., Va. & Ga. R. Co. v. Selcer, 7 Lea (Tenn.) 557. And see
Pryor v. St. Louis, K. C. & N. R. Co., 69 Mo. 215.

“Gulf, C. & S. F. R. Co. v. Ellis, 54 Fed. Rep. 481.

“Ill. Cent. R. Co. v. Jordan, 63 Miss. 458. ©

*” Cent. R. & Bkg. Co. v. Ingram, 98 Ala. 395; Louisv. & N. R. Co. v.
Kelton, 112 id. 533; Killiker-Krebs Bdg. & Manufg. Co. v. Birmingham

DUTIES OF TRAINMEN ; RATE OF SPEED; SIGNALS. 593

that it would be dangerous for the engineer of the former
train to stop before striking the animal, the company will be
held to have been negligent.1° Where the driver of a tram-
way car whistled and afterwards ran into a cab and horse,
injuring them, the fact that he had intended to stop the car
but could not do it on account of the steepness and greasiness.
of the street, he having seen the cab with its wheel on the
rail when it was fifty yards away, does not excuse the com-
pany.1°? And where the engineer ran too fast down grade
around a curve to be able to stop, this shows negligence.1°°

In general, running at too high a rate of speed under the
circumstances or at more than the statutory rate, if there is.
one, is negligence.1°* Where the owner of stock allows it
to run at large contrary to law and it is injured by a railway
train in a place where there is no obligation to fence, the
company has been held responsible if the injury arose from.
the gross negligence of its employees but not if it arose
merely from the violation of a city ordinance limiting the rate:
of speed: the latter is evidence of negligence but not negli-

R. & Elec. Co., 100 id. 424; Memphis & Charleston R. Co. v. Lyon, 62:
id. 71; Ala. Midland R. Co. v. McGill (Ala.), 25 South. Rep. 731.

* Louisv. & N. R. Co. v. Kelton, supra. :

12 M’Dermaid v. Edinburgh Tramway Co., 12 Rettie (Sc. Ct. Sess.) 15.

‘8 Cent. R. Co. v. Russell, 75 Ga. 810.

1 E. Tenn., V. & G. R. Co. v. Deaver, 79 Ala. 216; Birmingham R. &
Elec. R. Co. v. City Stable Co. (Ala.), 24 South. Rep. 558; Ford v. St.
Louis, I. M. & S. R. Co. (Ark.), 50 S. W. Rep. 864; Atlantic & Gulf
R. Co. v. Burt, 49 Ga. 606; Lake Erie & W. R. Co. v. Norris, 60 Ill. App.
112; St. Louis, V. & T. H. R. Co. v. Morgan, 12 id. 256; Cleveland, Gs
C. & St. L. R. Co. v. Ahrens, 42 id. 434; Chic, B. & Q. R. Co. v. Hag-
gerty, 67 Ill. 113; Chic, R. 1. & P. R. Co. v. Reidy, 66 id. 43; Courson
v. Chic., M. & St. P. R. Co., 71 Ja. 28; Bowman v. Chic. & A. R. Co.. 85
Mo. 533; Windsor v. Hannibal & St. J. R. Co., 45 Mo. App. 123; Un...
Pac. R. Co. v. Rassmussen, 25 Neb. 810; Clark v. Boston & M. R. Co.,
64 N. H. 323; Greeley v. Fed. St. & P. V. P. R. Co., 153 Pa. St. 218;
Jones v. No. Car. R. Co., 70 N. C. 626; Molair v. Pt. Royal & A. R. Co.,
31 S. C. 510; Houston & T. C. R. Co. v. Terry, 42 Tex. 451.

And see Proctor v. Wilmington & W. R. Co., 72 N. C. 579; Rockford,
R. L.-& St. L. R. Co. v. Linn, 67 Ill. 109; St. Louis, A. & T. R. Co. v..
Felton, 4 Tex. App. (Civ. Cas.) 60.

38

594 LIABILITY IRRESPECTIVE OF FENCING LAWS.

gence per se°> And the fact that the train had no air-
brakes is not of itself sufficient to make the company liable.'°*
But the failure to equip the cars with suitable brakes may
make the company liable for negligence in running over an
animal where the use of such brakes might have prevented
the accident.1°7 And the failure to apply the brakes may,
of course, be gross negligence.’°* Apart from statute, the
rate of speed is not governed by definite rules and a charge
which makes it the duty of an engineer on approaching a
crossing to diminish the speed of the train, without regard to
attendant circumstances, is erroneous.1°® So, where cattle
were killed that had taken shelter near a trestle during the
night, and it did not appear that the train was running with
unusual speed and was not proved that when the cattle were
first seen the train could have beenarrested in time, an instruc-
tion that if the train was running so that it could not be
stopped within half a mile, this of itself was negligence, was
held erroneous.1?° In determining the rate of speed, such rate
being otherwise reasonable, the company is not bound to con-
sider the increased risk to cattle running at large in the vicin-
ity and lessen their speed accordingly.141 It is not sufficient to
show that the train was running at an unlawful rate of speed:
the company is not liable unless the injury resulted there-

* Windsor v7. Hannibal & St. J. R. Co., 45 Mo. App. 123.
** Grundy v. Louisville & N. R. Co. (Ky.), 2S. W. Rep. 890.
‘" Forbes v. Atlantic & N. C. R. Co., 76 N. C. 454.

*® Toledo, W. & W. R. Co. 7. McGinnis, 71 Ill. 346, and cases cited
supra.

FE. Tenn., V. & G. R. Co. v. Deaver, 79 Ala. 216.

That no rate of speed is negligence per se, see Windsor v. Hannibal &
St. J. R. Co., supra; Wallace v. St. Louis, I. M. & S. R. Co., 74 Mo. 594;
Young v. Hannibal & St. J. R. Co., 79 id. 336.

That the rate of speed is not ordinarily to be decreased on approaching
crossings, see Connyers v. Sioux City & P. R. Co., 78 Ia. 410; Robinson v.
Flint & P. M. R. Co., 79 Mich. 323; Zeigler v. Northeastern R. Co., 7
S. C. 402; Bunnell v. Rio Grande W. R. Co., 13 Utah 314.

™ Doggett v. Richmond & D. R. Co., 81 N. C. 4509.

™ Central Ohio R. Co. v. Lawrence, 13 O. St. 66.

DUTIES OF TRAINMEN ; RATE OF SPEED; SIGNALS. 598

from.1!* Where, by the unlawful speed of a train, animals in
station grounds are stampeded and run on the track, breaking
fences, etc., and are run down and killed, the unlawful speed
is the proximate cause of the injury.143 And where a cow
was killed at a railway crossing by a train running at an un-
lawful rate of speed and would not have been killed other-
wise, the company was held not to be exonerated from lia-
bility by the fact that she was being chased by a dog at the
time and that this might have contributed to her running on
the track and being killed.11*

The duty of ringing the bell or blowing the whistle as a
warning is largely dependent on statutory rule. Disregard of
the statute in this respect is evidence of negligence on the
part of the company.!!® The general duty of trying to
frighten the animal off the track, where that is possible, has
been already considered. The failure to give the statutory |
signal is equally culpable whether the injury results from

12 Harlan v. Wabash, St. L. & P. R. Co., 18 Mo. App. 483; Western
& Atlantic R. Co. v. Main, 64 Ga. 649; Ohio & M. R. Co. v. Craycraft,
5 Ind. App. 335; Louisville, N. O. & T. R. Co. v. Caster (Miss.), 5
South. Rep. 388.

That the burden is on the company to show that the injury did not so
result, see Jones v. Ill. Cent. R. Co., 75 Miss. 970.

48 Story v. Chic., M. & St. P. R. Co., 79 Ia. 402.

The liability in Iowa under such circumstances is confined to stock
“running at large’: Strever v. Chic. & N. R. Co., 106 Ia. 137.

™4 Jeffs v. Rio Grande W. R. Co., 9 Utah 374.

"3 Chic., St. L. & P. R. Co. v. Fenn, 3 Ind. App. 250; Orcutt v. Pac.
‘Coast R. Co., 85 Cal. 291; Great Western R. Co. v. Geddis, 33 Ill, 304;
St. Louis, I. M. & S. R. Co. v. Hendricks, 53 Ark. 201; Barr v. Hannibal
& St. J. R. Co., 30 Mo. App. 248; Kendrick v. Chic. & A. R. Co., 81
Mo. 521; Wallace v. St. Louis, I. M. & S. R. Co., 74 id. 594; Mo. Pac.
R. Co. v. Stevens, 35 Kan. 622; South. Kan. R. Co. v. Schmidt, 44 id. 374;
E. Tenn., V. & G. R. Co., v. Watson, 90 Ala. 41; Ga. R. & Bkg. Co. wv.
Clary, 103 Ga. 639; Galveston, H. & S. A. R. Co. v. Balkam (Tex. Civ.
App.), 20 S. W. Rep. 860; Lonergan v. IIl. Cent. R. Co., 87 Ia. 755; Hl.
Cent. R. Co. v. Person, 65 Miss. 319; Eddy v. Evans, 58 Fed. Rep. 151;
Robertson v. Halifax Coal Co., 20 Nov. Sco. 517; Tyson v. Grand Trunk
R. Co., 20 U. C. Q. B. 256.

596 LIABILITY IRRESPECTIVE OF FENCING LAWS.

actual collision or from the fright of an animal..7® Under
certain circumstances, however, such failure will be excused
where the result of ringing the bell or blowing the whistle
would be to frighten or increase the fright of an animal and
thereby cause injury.'!"

The rule as to signalling on approaching a crossing has
been held to apply to public crossings only; 118 and only when
they are at grade.1!® It has been held also that its purpose
is to warn persons, not animals. “If it was the duty of the
engineer to blow the whistle as notice to the mule, I do not
see why the mule should not be held to the rule to ‘stop,
look and listen.’ To apply rules to dumb animals which
were intended only for reasonable beings brings us danger-
ously near to the realm of absurdity.” 12° The statute has
been also held not to be intended for the protection of one
passing along a street parallel to the track with no intention
of crossing it;1** or ploughing in a field near the road.1??
On the other hand, it has been held that the intention was
to guard against injury from the fright of teams near the
crossing as well as from actual collision, and to make the
company liable where the plaintiff was travelling on a high-
way parallel to the railroad.1?% It is for the legislature, not

"®Voak wv. North. Cent. R. Co., 75 N. Y. 320; Mo., K. & T. R. Co.
v. Magee (Tex.), 50 S. W. Rep. 1013; Grand Trunk R. Co. v. Rosen-
berger, 9 Can. Sup. Ct. 311.

“T Louisville. N. A. & C. R. Co. v. Stanger, 7 Ind. App. 179; Akridge
v. Atlanta & W. P. R. Co., 90 Ga. 232; Jenson v. Chic., St. P., M. & O.
R. Co., 86 Wis. 580.

And see § 133, infra.

"® Ravenscraft v. Mo. Pac. R. Co., 27 Mo. App. 617; Locke v. St, Paul
& Pac. R. Co., 15 Minn. 350; Annapolis & Balt. S. L. R. Co. v. Pumphrey,
72 Md. &2.

™ Jenson v. Chic., St. P., M. & O. R. Co., 86 Wis. 589.

™ Fisher v. Pa. R. Co., 126 Pa. St. 293. And see Toudy v. Norfolk &
W.R. Co., 38 W. Va. 604.

"Louisville, E. & St. L. C. R. Co. v. Lee, 47 Ill. App. 384; E. Tenn.,
Va. & Ga. R. Co. v. Feathers, 10 Lea (Tenn.) 103.

™ Williams v. Chic. & A. R. Co., 135 Ill. or.

™ Ransom 7. Chic., St. P., M. & O. R. Co., 62 Wis. 178.

DUTIES OF TRAINMEN ; RATE OF SPEED ; SIGNALS. 597

for the jury, to say what signals should be adopted.!2* If the
engineer could not sound the cattle-alarm and signal to the
brakeman at the same time, this might be an excuse for fail-
ure to do the former.!*° It is not sufficient to show that
the signal was not given: it must also be shown that such
failure was the cause of the injury to the animal.12® Such
was formerly the rule in Missouri; 1#7 but now, by statute,
on proof of failure to give the signal, the burden is shifted on
the defendant, who may then show that the accident was not
caused by such failure.1°* Where the plaintiff and his driver
were drunk and the horses, frightened by the train, ran into
the engine, it was held that the failure to give the statutory
signal was not the proximate cause of the accident, but the
fright of the horses and the inability to control them by
reason of intoxication.1*9

138. Liability for Frightening Animals—A railway company
is liable for injuries resulting from the fright of animals
caused by unnecessary noises in the management of trains,
such as carelessly blowing off steam, etc.48° The same rule

™ Hollender v. N. Y. Cent. & H. R. R. Co., 14 Daly (N. Y.) 219.

“8 Mobile & G. R. Co. v. Caldwell, 83 Ala. 196.

% Chic. & Alton R. Co. v. Hanley, 26 Ill. App. 351; St. Louis, V. & T.
H. R. Co. v. Hurst, 25 id. 181; Ill. Cent. R. Co. v. Phelps, 29 Ill. 447;
Louisville, N. A. & C. R. Co. v. Ousler, 15 Ind. App. 232; Leavitt v. Terre
Haute & I. R. Co., § id. 513; Pratt v. Chic., R. I. & P. R. Co. (Ia.), 77
N. W. Rep. 1064.

* Holman v. Chic., R. I. & P. R. Co., 62 Mo. 562; Braxton v. Hanni-
bal & St. J. R. Co., 77 id. 455.

And, on an agreed statement of facts, there must be shown to be a
connection between the killing and the omission of a duty: Smith wv.
Hannibal & St. J. R. Co., 47 Mo. App. 546.

8 Barr v. Hannibal & St. J. R. Co., 30 Mo. App. 248. And see Turner
v. Kan. City, St. J. & C. B. R. Co., 78 Mo. 578.

° Butcher v. W. Va. & P. R. Co., 37 W. Va. 180.

© Fritts v. N. Y. & N. E. R. Co., 62 Conn. 503; Wabash R. Co. v.
Speer, 156 Ill. 248; Chic., B. & Q. R. Co. v. Yorty, 56 Ill. App. 242; Ill.
Cent. R. Co. v. Larson, 42 id. 264; Louisville & N. R. Co. v. Upton, 18
id. 605; Terre Haute & I. R. Co, v. Brunker, 128 Ind. 542; Rodgers wv.
Balt. & O. S. R. Co., 180 id. 397; Louisville, N. A. & C. R. Co. v. Davis,

598 LIABILITY IRRESPECTIVE OF FENCING LAWS.

applies where the fright is caused by an unnecessary obstruc-
tion or disfigurement of the highway by engines, cars, tim-
bers, etc.13! The test in this case is whether their appearance
is such as to frighten an ordinarily gentle horse.1** But it
has been said that if the cars project over the crossing itself,
the company is liable even if the horse is not gentle.'%%
Where a horse was frightened by a derrick projecting over
the highway so as naturally to frighten horses, the company
was held liable though the derrick was maintained for the
purpose of loading freight.19* Some negligence must, how-
ever, be shown: the mere fact of fright is not sufficient to
charge the company.’®> It has been held that the obstruc-

7 Ind. App. 222; Andrews v. Mason City & Fort D. R. Co.. 77 Ia. 669;
Mo. Pac. R. Co. v. Gill, 49 Kan. 441; Culp v. Atchison & N. R. Co..
17 id. 475; Boothby v. Boston & M. R. Co., 90 Me. 313; Omaha & R.
V.R. Co. v. Clarke, 35 Neh. 867, 39 id. 65; Bittle v. Camden & A. R. Co.,
55 N. J. L. 615; Presby v. Grand Trunk R. Co., 66 N. H. 615; Borst v.
Lake Shore & M. S. R. Co., 4 Hun (N. Y.) 346; Lott v. Frankford &
S. Pass. R. Co., 159 Pa. St. 471; Mo., K. & T. R. Co. v. Traub (Tex. Civ.
App.), 47 S. W. Rep. 282; Petersburg R. Co. v. Hite, 81 Va. 767; Kalbus
v. Abbot, 77 Wis. 621; North. Pac. R. Co. v. Sullivan, 53 Fed. Rep. 219;
Manchester S. J. & A. R. Co. v. Fullarton, 14 C. B. N. S. 54.

See, also, as to liability for injuries resulting from the fright of animals,
§§ 62-69, supra.

*™ Denver, T. & G. R. Co. v. Robbins, 2 Coio. App. 313; Great Western
R. Co. v. Decatur, 33 Ill. 381; Cleveland, C., C. & I. R. Co. v. Wynant,
114 Ind. 525; Grimes v. Louisville, N. A. & C. R. Co., 3 Ind. App. 573;
Peterson v. Chic. & W. M. R. Co., 64 Mich. 621; Tinker v. N. Y., O. &
W. R. Co., 157 N. Y. 312~ Harrell v. Albermarle & R. R. Co., 110 N. C.
215; Mo., K. & T. R. Co. v. Jones, 13 Tex. Civ. App. 376: Desrousseau
v. Boston & M. R. Co., 34 Low. Can. Jur. 252.

Kyne v. Wilmington & N. R. Co., 8 Houst. (Del.) 185; Tex. & Pac.
R. Co. v. McManus (Tex. Civ. App.), 38 S. W. Rep. 241, where it is held
also that the crossing need not be a public way.

*8 Mo. Pac. R. Co. v. Clark (Kan. App.), 49 Pac. Rep. 790.

™ Jones v. Housatonic R. Co., 107 Mass. 261.

** Atchison & N. R. Co. v. Loree, 4 Neb. 446; Moshier v. Utica &
S. R. Co., 8 Barb. (N. Y.) 427.

The question of negligence is for the jury, where the evidence is con-
flicting: Green v. Eastern R. Co., 52 Minn. 79; Omaha & R. V. R. Co.
v. Clarke, 35 Neb. 867, 39 id. 65.

LIABILITY FOR FRIGHTENING ANIMALS. 599

tion of the road by a car is not the proximate cause of an
injury caused by the fright of the animal at another train
passing during the time of delay.13° But in a New York
case it was held that the delay in moving the obstructing
train and the approach of the other train were both con-
current and proximate causes.147

The company is liable for the fright of a horse caused by
discharging steam from a locomotive run back and forth on
its track near a highway for the purpose of “limbering”’ it.138
In all such cases it must appear not only that the opening of
the valves was unnecessary but that it was done under cir-
cumstances from which might be implied a failure to exercise
the care of a prudent and reasonable man.19® Where the
engineer and fireman wantonly and maliciously blow the
whistle so as to frighten a horse which is being driven near
the track, they are acting within the scope of their em-
ployment so as to make the company liable for the conse-
quences.1*°

Where the fright of the animal is due to the failure to
give proper warning of the approach of the train, the coim-
pany is liable.141 But, in a Connecticut case, where the whistle
signalled the approach to a grade crossing, it was held that
no liability arose from the fact that it was not blown as far
back as the law required, and that then the plaintiff would
have been warned in time of the train’s coming.1** And where
the plaintiff's intestate was at a place where the company was

"6 Stanton «. Louisville & N. R. Co., gt Ala. 382; Selleck v. Lake
Shore & M. S. R. Co., 58 Mich. 195.

87 T sible v. N. Y. Cent. & H. R. R. Co., 13 N. Y. App. Div. 574.

" Terre Haute & I. R. Co. v. Doyle, 56 Ill. App. 78.

2° Omaha & R. V. R. Co. v. Clarke, 35 Neb. 867, 39 id. 65. And see
Toledo, St. L. & K. C. R. Co. wv. Crittenden, 42 Ill. App. 469; Glancy v.
Glasgow & South-Western R. Co., 25 Rettie (Sc. Ct. Sess.) 581.

™ Tex, & Pac. R. Co. v. Scoville, 62 Fed. Rep. 730.

4 Pollock v, Eastern R. Co., 124 Mass. 158; Laible v. N. Y. Cent. & H.
R. R. Co. 13 N. Y. App. Div. 574; Grand Trunk R. Co. v. Sibbald, 20
Can. Sup. Ct. 259; Vézina v. Reg., 2 Can. Ex. Ct. 11.

” Bailey v. Hartford & C. V. R. Co., 56 Conn. 444.

600 LIABILITY IRRESPECTIVE OF FENCING LAWS.

not obliged to signal and a train came suddenly out of a
cutting, frightening his horses and killing him, it was held
that the company was not liable! Where the engineer of
a dummy train, not knowing that the brake had been taken
off, reversed on a steep grade and the train backed too
rapidly, colliding with a wagon which was on the track by
reason of the mules drawing it being suddenly frightened
by the backward movement of the train, the occurrence was
held to be a pure accident and the company not liable.’

The company is not, as a rule, liable for fright produced
by noises or sights due to the ordinary operation of trains.
“Railroads cannot be operated without noise, and if teams
are frightened by the usual noise arising from a prudent and
proper management of a train or engine, the railroad com-
pany is not liable for an injury resulting from such noise.
The making of an unnecessary noise by a railroad company
as, in this case, the escaping of steam, is not of itself evidence
of negligence. It may or may not be. To be negligence,
the noise must have been made under such circumstances
and suroundings as to time, place and situation of the parties
as to establish a neglect to exercise that degree of care which
a reasonable man would have exercised under the circum-
Stances,” 145

*® New Brunswick R. Co. v. Vanwart, 17 Can. Sup. Ct. 35, reversing
27 N. B. 50.

“™ Rome St. R. Co. v. McGinnis, 94 Ga. 220.

*’ Omaha & R. V. R. Co. v. Brady, 39 Neb. 27, 41.

As illustrations of this rule, see Stanton v. Louisville & N. R. Co., 91
Ala. 382: Oxford Lake Line v. Steadham, tor id. 376; Morgan v. Cent.
R. Co., 77 Ga. 788; Bailey v. Hartford & C. V. R. Co., 56 Conn. 444;
Indianapolis Union R. Co. v. Boettcher, 131 Ind. 82; Phila. W. & B. R.
Co. v. Stinger, 78 Pa. St. 219; Ryan v. Pa. R. Co., 132 id. 304; Stephens
v. Omaha & R. V. R. Co., 41 Neb. 167; Phillips v. N. Y. Cent. & H. R.
R. Co., 84 Hun (N. Y.) 412; Moshier v. Utica & S. R. Co., 8 Barb. (N.
Y.) 427; Morgan v. Norfolk S. R. Co., 98 N. C. 247; Beaumont Pasture
Co. v. Sabine & E. T. R. Co. (Tex. Civ. App.), 41 S. W. Rep. 190;
Cahoon v. Chic. & N. R. Co., 85 Wis. 570; Hurd v. Grand Trunk R. Co.,
15 Ont. App. 58.

It applies to fright caused by a natural discharge of smoke at a neces-

LIABILITY "OR FRIGHTENING ANIMALS, 601

Where horses near a railway crossing are frightened by a
whistle signalling to release brakes, the company is not liable
unless the engineer should have known that such signal
would, under the circumstances, probably frighten them.!#¢
So, the sounding of the whistle by the engineer when he first
sees a team on the track is proper, though the horses be
thereby frightened and contribute to the injury.!47 Where
the plaintiff acts on the assurance of the engineer and
goes ahead, he may recover for injuries resulting from his
horse’s fright, as the assurance implies control over the en-
gine.*48 And the fact that a horse was frightened by an
ordinary movement of the train will not prevent recovery, if
the animal was ordinarily well broken, and was permitted by
the defendant’s negligence to come so near as to be naturally
frightened by such ordinary movement.'*® Where a flagman
signals a carriage to advance he may, when he discovers a
train near the crossing, use any means in his power to stop
the horse in order to save life, even if the result of his action
‘is to frighten the horse and cause incidental injury. “An act
done upon a sudden emergency, when life is apparently in
peril, is not negligence, even though it is mistaken.” '°°
‘Where a gate-tender at a railroad crossing let a woman pass
on foot under the partly raised gates, in front of which a
locomotive was standing, and afterwards raised them higher
-so as to permit the passage of a restless horse which became
frightened and ran over the woman, it was held that, under
the circumstances, the gate-tender was not negligent, she
being guilty of contributory negligence in not.heeding the
-driver’s warning.15! But where the engineer told the driver

-sary time: Lamb v. Old Colony R. Co., 140 Mass. 79; Leavitt v. Terre
Haute & J. R. Co., 5 Ind. App. 513.

46 Ochiltree v. Chic. & N. R. Co., 93 Ta. 628, 96 id. 246.

47 Schaefert v. Chic., M. & St. P. R. Co., 62 Ia. 624.

“8 Keech v. Rome, O. & W. R. Co., 13 N. ¥. Suppt. 149.

“® Carraher v. San Francisco Bridge Co., too Cal. 177.

© Floyd v. P. & R. R. Co., 162 Pa. St. 29.

| Scaggs v. Del. & H. Canal Co., 145 N. Y. 201, distinguishing Borst

602 LIABILITY IRRESPECTIVE OF FENCING LAWS.

of a horse that it was safe to cross, and the steam gauge after-
wards allowed steam to escape after reaching a certain pres-
sure whereby the horse was frightened, it was held that the
company was liable for the resulting injury.’®? In a similar
case, where a flagman asserted there was no danger, liability
was denied.1** And, ordinarily, there is no liability for fright
caused by the escape of steam from an automatic valve,
where the use of such valve is necessary for the safety of the
engine; 154 though the fact of there being such a valve has
been held to be no answer, as matter of law, to a charge of
negligence.1™°

Electric and other street railways are not liable for the
frightening of horses by the ordinary operation of their
cars.15° And the mere fact that a horse is frightened at the
sight of a car going fast confers no right of action: the actual
rate of speed must be shown or that it was not a reasonably
prudent rate.57 The company is liable, however, if un-
necessary noise is made for the purpose of frightening the
animal, or if there is subsequent misconduct on the part of

v. Lake Shore & M. S. R. Co., 4 Hun (N. Y.) 346, where the company
was held liable by reason of a sudden increase of steam after the flagman
had beckoned the team to cross. See Duvall v. Balt. & O. R. Co., infra.

™ Louisv., N. A. & C. R. Co. v. Schmidt, 147 Ind. 638.

*8 Duvall v. Balt. & O. R. Co., 73 Md. 516.

Cf. Borst v. Lake Shore & M. S. R. Co., supra.

*™ Louisville, N. A. & C. R. Co. v. Schmidt, 34 Ind. 16; Scaggs v. Del.
& H. Canal Co., 145 N. Y. 201; Wilson v. N. Y. Cent. & H. R. R. Co.,
58 N. Y. Suppt. 617; Howard v. Un. Freight R. Co., 156 Mass. 159. And
see Dunn v. Wilmington & W. R. Co. (N. C.), 32 S. E. Rep. 7rr.

** Presby v. Grand Trunk R. Co., 66 N. H. 615.

* Kankakee Elec. R. Co. v. Lade, 56 Ill. App. 454; Galesburg Elec.
Motor & Power Co. v. Manville, 61 id. 490; North Chic. St. R. Co. wv.
Harms, 59 id. 374; Hazel v. People’s Pass R. Co., 132 Pa. St. 96;
McDonald v. Toledo Consol. St. R. Co., 74 Fed. Rep. 104; Chapman wv.
Zanesville St. R. Co. (O.), 27 Wy. L. Bull. 70.

The question of negligence and contributory negligence is for the jury:
Blakeslee 7. Consold. St. R. Co., 112 Mich. 63.

“™ Yingst v. Lebanon & A. St. R. Co., 167 Pa. St. 438. And see Greeley
v. Fed. St. & P. V. P. R. Co., 153 id. 218: Smith v. Holmesburg, T. & F.
Elec. R. Co., 187 id. 451.

LIABILITY FOR FRIGHTENING ANIMALS. 603

the employees after discovering its fright.°° In a Pennsyl-
vania case it was held that as it is the duty of the gripman
of a traction car to ring his bell at all street crossings, if the
plaintiff's horses, standing near a crossing, were frightened
by the ringing and ran away, the gripman was not chargeable
with negligence which would render the company liable.159
But in a Federal case this general statement was disapproved
of, and it was held that it might be negligence to ring the
gong too violently near a frightened horse, and that this was
a question for the jury.1° And in a Texas case it was held to
be negligence for one operating a street car tocontinue sound-
ing the bell after he saw, or by the exercise of ordinary care
might have seen, that horses attached to a wagon in front
were being frightened and rendered unmanageable: it was
his duty either to stop the car or cease ringing the bell.1*
Electric cars have a right of way in a qualified manner
and others should carefully observe their movements, but a
person owning an unbroken horse is not debarred from
reasonable opportunities of exercising it near the cars in

¥8 See Doster v. Charlotte St. R. Co., 117 N. C. 651; Galesburg Elec.
Motor & Power Co. v. Manville, supra; North Side St. R. Co. v. Tippens,
4 Tex. App. (Civ. Cas.) 226; Ward v. Lakeside R. Co., 20 Pa. Co. Ct. 494.

The question whether an unusual noise is unnecessary is ordinarily
for the jury: Hill v. Rome St. R. Co., 101 Ga. 66.

8° Steiner v. Phila. Trac. Co., 134 Pa. St. 199, citing Phila. Trac. Co. v.
Bernheimer, 125 id. 615. The court said: “Nor does such ringing neces-
sarily tend to frighten horses. If it did, there would be accidents daily.”

™ Lightcap v. Phila. Trac. Co. 60 Fed. Rep. 212, affirmed in Phila.
Trac. Co. v. Lightcap, 17 U. S. App. 605. And see Wachtel v. East St.
Louis & St. L. Elec. R. Co.. 77 Ill. App. 465; Henderson v. Greenfield
& T. F. St. R. Co. (Mass.), 52 N. E. Rep. 1080.

© Citizens’ R. Co. v. Hair (Tex. Civ. App.), 32 S. W. Rep. roso.

And see Benjamin v. Holyoke St. R. Co., 160 Mass. 3; Ellis v. Lynn
& Boston R. Co., Ibid. 341; Citizens’ St. R. Co. v. Lowe, 12 Ind. App.
47; Marion St. R. Co. v. Carr, 10 id. 200; Muncie St. R. Co. v. Maynard,
5 id. 372; Omaha St. R. Co. v. Duvall, 4o Neb. 29; Eastwood v. La
Crosse City R. Co., 04 Wis. 163: Bishop v. Belle City St. R. Co., 92 id.
139; East St. Louis & St. L. E. St. R. Co. v. Wachtel, 63 Il. App. 181;
Richter v. Cicero & P. St. R. Co., 70 id. 196; Lines v. Winnipeg Elec. St.
R. Co., 11 Ma. 77.

604 LIABILITY IRRESPECTIVE OF TENCING LAWS.

order to get it accustomed to them, and it is the duty of those
managing the car to use every effort to avoid injury.*%?
And the mere failure of one driving along a street on which
is an electric railway to look for approaching cars will not
prevent recovery for injuries resulting from the horse’s
fright.1°° But the company is not liable where horses run
away because of weak and insufficient lines or because the
driver is so situated that he cannot use ordinary force to con-
trol them. And the mere fright does not show that the
driver is in peril: the presumption is that he will control
the horses.!** Where the plaintiff’s horse became frightened
by the breaking of the defendant’s trolley wire and the plain-
tiff, alarmed by the noise and electric flashes, jumped out and
was injured, it was held that no presumption of negligence
arose from the unexplained breaking of the wire.1%

Where the engineer of a railroad train sees that an animal
near the track is frightened, it is frequently his duty
to slacken speed or omit or change the ordinary signal.'®
The rule has been laid down that, if he sees the animal
frightened, he should refrain from giving the signal, and
should, if necessary, slacken the speed or stop the train; but
if he reaches the place where the statutory signal should be
given and it is uncertain whether the train can be stopped
before reaching the crossing, he must give the signal and

Flewelling v. Lewiston & A. H. R. Co., 89 Me. 585.

Cf. Cornell v. Detroit Elec. R. Co., 82 Mich. 495, where it was held that
the plaintiff taking a horse young and unused to cars to test it was guilty
of contributory negligence.

*™ Benjamin v. Holyoke St. R. Co., supra.

“ East St. Louis & St. L. E. St. R. Co. v. Wachtel, 63 Ill. App. 181.
And see Terre Haute Elec. R. Co. v. Yant, 21 Ind. App. 486; Flaherty
v. Harrison, 98 Wis. 559.

* Kepner v. Harrisburg Trac. Co., 183 Pa. St. 24. In this case neither
the wire, nor any of the sparks emitted, touched the horse, wagon or
plaintiff.

St. Louis, I. M. & S. R. Co. v. Lewis, 60 Ark. 4o9; Akridge v.
Atlanta & W. P. R. Co., 90 Ga. 232; Chic, B. & Q. R. Co. v. Dickson,
88 Ill. 431; Gulf, C. & S. F. R. Co. v. Box, 81 Tex. 670.

LIABILITY FOR FRIGHTENING ANIMALS. 605

negligence is not imputable therefrom.’®* Although there
may be nothing to prevent the driver from turning the team
away from the railroad, the engineer is not, as a matter of
law, free from negligence in failing to put on the brakes where
he observes that the animals have become unmanageable.!°8
And the engineer and fireman may be guilty of negligence in
failing to see signals made by a person trying to control a
frightened horse backing towards a crossing.!®® Where
animals had strayed on the track and were frightened by a
train while the plaintiff’s servant was trying to remove them
and got on a bridge where they were injured or killed, there
being a space on the side of the track by which they might
have passed, it was held that there was no duty on the part
of the engineer to wait till they had actually been driven
off.17°

A railway company has been held not to be guilty of negli-
gence in failing to erect fences or screens near its stations
in order that animals might not see trains and become
frightened.’7*_ Where the company fails to remove or bury
a dead animal it is liable for the consequences, if another
animal is frightened thereby.1””

It has been held that in an action for an injury caused by
frightening horses, evidence that other horses had taken fright
at the same object is inadmissible, the question what objects
are likely to cause fright being one to be determined by the
court and jury in each case.17* But in other cases it is held

T ouisville, N. A. & C. R. Co. v. Stanger, 7 Ind. App. 179.

*8 Chic., K. & W. R. Co. v. Prouty, 55 Kan. 503.

1 Teavitt v. Terre Haute & I. R. Co., 5 Ind App. 513.

Hurd v. Grand Trunk R. Co., 15 Ont. App. 58. eats

™ Flage v. Chic, D. & C. G. T. J. R. Co., 96 Mich. 30; Simkin v.
London & N. W. R. Co., 21 Q. B. D. 453.

See Moshier v. Utica & S. R. Co., 8 Barb. (N. Y.) 427, as to precautions
to be taken where a parallel turnpike has to be kept up.

™ Baxter v. Chic., R. I. & P. R. Co., 87 Ia. 488; Chic. & A. R. Co.
v. Scranton, 78 Ill. App. 230.

Cleveland, C., C. & I. R. Co. v. Wynant, 114 Ind. 525.

606 LIABILITY IRRESPECTIVE OF FENCING LAWS.

that the fright of other animals is a circumstance to be con-
sidered by the jury.17* And the plaintiff's knowledge of
that fact has been held to be evidence of contributory neg-
ligence.1”

In order that there may be a recovery against the company,
the fright must have been the proximate cause of the injury.
If the collision results from the inability of a driver to control
his horse, and not from the wrongdoing of the company,
there can be no recovery.17® But where fire was negligently
allowed to fall on a horse from an elevated railway, frighten-
ing the animal and causing injury to the plaintiff, it was held
that the company was liable, although the driver may not
have acted most prudently: the latter’s act was to be regarded
as a continuation of the company’s act which was, therefore,
the proximate cause of the injury.1‘7 And where a horse,
frightened by the blowing off of steam, ran off and the de-
fendant’s yardman sprang in front of it and struck at it, as a
result of which it swerved and injured the plaintiff, it was held
that fright was the proximate cause of the injury.178 Where
a horse, frightened by the wanton blowing of a whistle, runs
away and kills another horse, the owner of the latter may
recover from the company.'7® But where a frightened horse
jumped over cattle-guards and was injured in a bridge, it was
held that fright was not the proximate cause and there was
no basis of recovery.'8° Where a company negligently
frightened cattle that ran along the road and got into an

“Mo. Pac. R. Co. v. Hill, 71 Tex. 451; Harrell v. Albemarle & R.
R. Co., 110 N. C. 215; Gordon v. Boston & M. R. Co., 58 N. H. 306.

And see § 66, supra.

* Pittsb. South. R. Co. v. Taylor, 104 Pa. St. 306.

™ Barringer v. N. Y. Cent. & H. R. R. Co., 18 Hun (N. Y:) 3098.

See Chic. & N. R. Co. uv. Prescott, 59 Fed. Rep. 237.

*™ Lowery v. Manhattan R. Co., 99 N. Y. 158.

ni Belt v. San Antonio & A. P. R. Co. (Tex. Civ. App.), 37 S. W. Rep.
302.

™ Billman v. Indianapolis, C. & L. R. Co., 76 Ind. 166.
* Lynch v. North. Pac. R. Co., 84 Wis. 348.

LIABILITY FOR FRIGHTENING ANIMALS. 607

orchard through a defective fence and then on the track
and were killed, it was held that the damage was not too
remote and that the imperfect state of the fence was no
answer.!8!

In awarding compensation for lands condemned for the
right of way of a railroad, the frightening of stock by trains
is speculative and not a proper element to be taken into con-
sideration.18?

134. Animals Running at Large; Contributory Negligence.—
Whether the owner of an animal allowed to run at large may
recover for an injury done to it by a train depends on several
considerations. The common-law rule requiring the owner
to restrain his animals may or may not be in force. There
may be a law requiring the company to fence or signal and
the injury may be the result of its failure to do so. And,
finally, the degree of negligence of the company’s employees
may be an important factor in the question. The decisions,
therefore, vary in the different jurisdictions and no attempt
will be made to lay down a general rule applicable to all cases.
The obligation of the company to fence its right of way,
which will be discussed fully in the next chapter, will be here
treated of only incidentally in so far as it is necessarily in-
volved in the decision of the principal question.

The common-law rule with regard to restraining animals
is discussed in an earlier portion of this work.1*

In Alabama, the owner has a right to pasture his animals
or let them run at large near a railway and the fact that he
does so is not contributory negligence which will bar his
recovery for an injury received by them in consequence.’**

8 Sneesby v. Lancashire & Y. R. Co., 1 Q. B. D. 42.

2 St. Louis, K. & S. R. Co. v. Hammers, 51 Kan. 127.

% See Title IV, Chapter I, supra.

“ Birmingham Mineral R. Co. v. Harris, 98 Ala. 326; Louisville & N.
R. Co. v. Cochran, 105 id. 354; Ala. Gt. South. R. Co. v. McAlpine, 71 id.
545; Same v. Powers, 73 id. 244.

608 LIABILITY IRRESPECTIVE OF FENCING LAWS.

Nor is the fact that when they had strayed away he abandoned’
pursuit of them at night, knowing that trains frequently
passed, contributory negligence: such abandonment of pur-.
suit is simply equivalent to letting them run at large."

In Arkansas, the owner allowing his animals to run at large:
assumes only the risk of accidents which may not be avoided
by ordinary care on the part of the company’s employees *8&
And the same rule prevails in California.1%’

In Colorado, where an animal is unlawfully at large, the
company is liable only where there is gross negligence or
wantonness on the part of its employees.'%8

In Connecticut it has been held that the owner must have:
been guilty of actual negligence and not of a mere technical
wrong to be precluded from recovery and that where cattle
at large without his fault go on the track and are killed
through the company’s negligence, the latter is liable.'8*
And in Florida the fact that the owner of cattle permits them
to run at large is not contributory negligence.1%°

In Illinois the owner of stock is not negligent in letting”
them run at large in the commons and highways of the
country.'®* The fact that he allows them unlawfully to run
at large does not relieve the company from liability for in-
juring them as a result of its failure to fence its right of way
in compliance with statute. Whether permitting them to run

™ Louisville & N. R. Co. v. Williams, 105 Ala. 379.

™ Little Rock & Ft. S. R. Co. v. Finley, 37 Ark. 562.

*" Richmond v. Sacramento Val. R. Co., 18 Cal. 351; Needham v. San:
Fran. & S. J. R. Co., 37 id. 409; Orcutt v. Pac. Coast R. Co., 85 id. 291.

Denver & R. G. R. Co. v. Olsen, 4 Colo. 239; Same v. Stewart, F
Colo. App. 227.

™ Isbell v. N. Y. & N. H. R. Co., 27 Conn. 393.

This case was approved of in Needham v. San Fran. & S. J. R. Co.,.
supra, as exposing the “false reasoning of the New York courts.”

™ Savannah, F. & W. R. Co. v. Geiger, 21 Fla. 6609.

™ Chic., B. & Q. R. Co. v. Cauffman, 38 Ill. 424; Rockford, R. I. &.
St. L. R. Co. v. Rafferty, 73 id. 58: Chic. & A. R. Co. v. Engle, 84 id.
307. See § 70, supra.

Sn a ee Te ee nee ae

ANIMALS RUNNING AT LARGE, ETC. 609

at large was contributory negligence depended formerly on
whether it was the proximate cause of the injury and, if so,
whether the owner’s negligence was slight and the company’s
gross, comparatively; and the latter was liable for an injury
resulting from its failure to fence, unless it were shown that
the owner let his animals run at large under such circum-
stances that the natural and probable consequence of doing so
would be their going on the track and being injured.'!®°? He
may also have been negligent in letting them loose where the
company is not obliged to fence.1®? The doctrine of com-
parative negligence, however, has been recently abolished.!®*

In Indian Territory the owners of stock are not negligent
in letting them run at large near a railway.1®

In Indiana, there is no contributory negligence on the part
of the owner who turns his animals loose near a place where
the company should have fenced its track.1%* It is otherwise,
if they are injured at a place where the company is not obliged

2 Rockford, R. I. & St. L. R. Co. wv. Irish, 72 Ill. 404; Ewing wv. Chic.
& A. R. Co., Ibid. 25; Cairo & St. L. R. Co. v. Murray, 82 id. 76; Same
v. Woosley, 85 id. 370; Cleveland, C., C. & St. L. R. Co. v. Ahrens, 42 Ill.
App. 434; Indiana, I. & I. R. Co. v. Dooling, Ibid. 63; Wabash R. Co.
v. Perbex, 57 id. 62; Atchison, T. & S. F. R. Co. v. Cupello, 61 id. 432;
Peoria, D. & E. R. Co. v. Miller, 11 id. 375.

The case of Peoria, P. & J. R. Co. v. Champ, 75 Ill. 577, holding that
an owner illegally letting his animals run at large cannot recover against
the company for an injury resulting from its failure to fence, appears to be
at variance with the other decisions in the State.

#8 Toledo, W. & W. R. Co. v. Barlow, 71 Ill. 640. And see the opinion
in Headen v. Rust, 39 id. 186.

4 See Cicero & P. St. R. Co. v. Meixner, 160 III. 320.

*” Eddy v. Evans, 58 Fed. Rep. 151.

© Baltimore & O. & C. R. Co. v. Evarts, 112 Ind. 533; Toledo, W.
& W. R. Co. v. Cary, 37 id. 172; Jeffersonville, M. & I. R. Co. v. Ross,
Ibid. 545; Bellefontaine R. Co. v. Reed, 33 id. 476; Indianapolis & Cine.
R. Co. v. Guard, 24 id. 222; Louisville, N. A. & C. R. Co. v. Cahill, 63
id. 340; Terre Haute & I. R. Co. v. Schaeffer, 5 Ind. App. 86.

In Cine, W. & M. R. Co. v. Stanley (Ind. App.), 27 N. E. Rep. 316, it
was held that the fact that the company should have maintained better
cattle-guards and wing fences does not render it liable.

39

610 LIABILITY IRRESPECTIVE OF FENCING LAWS.

to fence,!®7 unless the injury is wilful*°* Where the owner
is guilty of gross negligence, as where the owner of a blind
horse turns it out on a common near the track, he cannot
recover, even though the company has failed to fence,'®® or
though the animal may lawfully run at large.2°° And where
the borrower of a horse rides it on the track when he is drunk,
the owner cannot recover, though the company should have
fenced: his act implies consent to the destruction of the
horse.2°! Where the animal is at large without the owner’s
fault, as where it has escaped from an enclosure, he may re-
cover for an injury due to the company’s negligence.2%?

In Iowa, one unlawfully allowing an animal to run at
large cannot recover without showing that the company’s
employees were not only negligent but guilty of reckless and
wanton misconduct.2°? The company is liable, however, for
killing animals running at large unlawfully where the accident
was due to its failure to fence, unless the owner’s act was
wilful.2°* And where the right to let animals run at large ex-

*™ Lyons v. Terre Haute & I. R. Co., 101 Ind. 419; Wabash, St. L. & P.
R. Co. v. Nice, 99 id. 152; Cine, H. & D. R. Co. v. Street, 50 id. 225;
Jeffersonville, M. & I. R. Co. v. Underhill, 48 id. 389; Same v. Adams,
43 id. 402; Indianapolis, C. & L. R. Co. v. Harter, 38 id. 557; Chic., St.
L. & P. R. Co. v. Nash, 1 Ind. App. 208.

™ Chic., St. L. & P. R. Co. v. Nash, supra; Jeffersonville, M. & I. R.
Co. v. Underhill, supra; Detroit, E. R. & Ill. R. Co. v. Barton, 61 Ind.
203.

™ Knight v. Toledo & W. R. Co., 24 Ind. 402.

See Hammond v. S. C. & P. R. Co., 49 Ia. 450.

* Hanna v. Terre Haute & I. R. Co., 119 Ind. 316.

*™ Welty v. Indianapolis & V. R. Co., 105 Ind. 55.

* Louisville, N. A. & C. R. Co. v. Ousler, 15 Ind. App. 232; Chic., St.
L. & P. R. Co. v. Nash, 1 id. 208.

But see Chic., W. & M. R. Co. v. Stanley (Ind. App.), 27 N. E. Rep.
316, where a mule that had escaped was held a trespasser.

*°'Van Horn v. Burlington, C. R. & N. R. Co., 63 Ia. 67, 59 id. 33.

And see Connyers v. Sioux City & P. R. Co., 78 id. 410; McCool v.
Galena & C. U. R. Co., 17 id. 461.

“Spence v. Chic. & N. R. Co., 25 Ia. 139; Stewart v. Same, 27 id.
282; Fritz v. Milwaukee & St. P. R. Co., 34 id. 337; Krebs v. Minneapolis
& St. L. R. Co., 64 id. 670.

ANIMALS RUNNING AT LARGE, ETC. 611

ists, ‘the owner must be held to take the risk only of such
injuries as do not result from the defendant’s negligence.” 29%
The negligence of the owner or his allowing his stock to run
on his own land near an unfenced track is not the “wilful act
of the owner” which will prevent recovery under § 1289 of
the code making the company liable for failure to fence.?%

In Kansas, where an animal is knowingly allowed to run
at large the owner cannot recover for an injury to it unless
the company has been guilty of gross negligence,?°’ as in
failing to fence its track.2°* And it has been held that where
an animal was unlawfully at large in the night, the owner
could not recover though the railway was unfenced where it
should have been fenced.?°® Where an animal breaks loose
in spite of the efforts of the owner to confine it, and is killed
in an unfenced place, the owner may recover.”!® In counties
where no order has been made by the board of county com-
missioners regulating or prohibiting the running at large of

6 ‘Van Horn v. Burlington, C. R. & N. R. Co., 59 Ia. 33.

See also Searles v. Milwaukee & St. P. R. Co., 35 id. 490; Kuhn v.
Chic., R. I. & P. R. Co., 42 id. 420; Whitbeck v. Dubuque & Pac. R. Co.,
ai id. 103; Balcom v. Dubuque & S. C. R. Co., Ibid. 102; Stewart v.
Burlington & M. R. Co., 32 id. 561.

*© Inman v. C., M. & St. P. R. Co., 60 Ia. 459; Lee v. Minneapolis &
St. L. R. Co., 66 id. 131.

27 Union Pac. R. Co. v. Rollins, 5 Kan. 167; Kan. City, Ft. S. & G R.
Co. v. McHenry, 24 id. 50!.

See the comments on the former case in Mo. Pac. R. Co. v. Wilson,
infra. And see Prickett v. Atchison, T. & S. F. R. Co., 33 Kan. 748,
where it was held that the company was liable for ordinary negligence
where the stock was permitted to run at large.

28 Mo. Pac. R. Co. v. Bradshaw, 33 Kan. 533; Atchison, T. & S. F.
R. Co. v. Riggs, 31 id. 622.

2 Cent. Branch R. Co. v. Lea, 20 Kan. 353. So, where he places the
animals on the track or purposely exposes them to danger: Mo. Pac. R.
Co. v. Roads, 33 id. 640.

But the owner is not guilty of culpable contributory negligence in per-
mitting an animal to run unattended near an unfenced track on his own
premises which are enclosed by a fence: Atchison, T. & S. F. R. Co.
v. Gabbert, 34 id. 132. And see the cases cited in the preceding note.

™ Kan, Pac. R. Co. v. Wiggins, 24 Kan. 588.

612 LIABILITY IRRESPECTIVE OF FENCING LAWS.

animals, individuals may permit their stock to run at large
on the public highways, and in doing so they are not neces-
sarily guilty of negligence.*"?

In Maryland, if the accident could have been avoided by
ordinary care on the part of the company’s servants, it is no
defence that the plaintiff was negligent in allowing his ani-
mals to escape and stray at large unattended.?¥

In Massachusetts, a railway company is not liable for kill-
ing a trespassing animal unless the injury is wanton: proof
of mere want of ordinary care is insufficient.21* It is other-
wise where the company has failed in its duty as to fencing
and the injury is a result of such failure.*4* Where the com-
pany is not bound to fence, the due care of the owner of the
animal must be proved.??®

In Michigan, one who turns his cattle at large in a public
highway near a railway crossing is guilty of contributory
negligence where the company has complied with the statu-
tory requirements as to fences, etc., and speed could not be
checked in time to avoid injury. “A man who permits his
dumb beasts, which cannot reason or appreciate danger, to
roam at large where it is highly probable, if not inevitable,
that they will run into dangerous places, ought to be judged
by the same rule as when he places himself in the presence
of danger and thereby suffers injury which his own prudence
might have avoided.” 4° Where the company has failed to

*4 Mo. Pac. R. Co. v. Wilson, 28 Kan. 637.

™ Western Md. R. Co. v. Carter, 59 Md. 306; Balt. & O. R. Co. v.
Mulligan, 45 id. 486; Northern Central R. Co. v. Ward, 63 id. 362. The
rule was formerly different: Balt. & O. R. Co. v. Lamborn, 12 Md. 257.

“8 Maynard v. Boston & Me. R. Co., 115 Mass. 488; McDonnell v.
Pittsfield & N. A. R. Co., Ibid. 564.

If the injury was the natural and probable consequence of the owner’s
negligence, he cannot recover: Amstein v. Gardner, 134 id. 4.

™ Rogers v. Newburyport R. Co., 1 Allen (Mass.) 16.
But see § 139, infra, as to qualifications of this rule.

™* Stearns v. Old Colony & F. R. R. Co., 1 Allen (Mass.) 493.

** Robinson v. Flint & P. M. R. Co., 79 Mich. 323.

And see Niemann v. Mich. Cent. R. Co., 80 id. 197.

ANIMALS RUNNING AT LARGE, ETC. 613

fence according to statute, the question of contributory neg-
ligence does not arise.?17

In Minnesota, the mere fact that the animals killed were
allowed unlawfully to run at large does not necessarily show
contributory negligence,24® nor excuse the company for the
result of its failure to fence.**® Contributory negligence
exempts the company where the owner’s act proximately
affects the question of the exposure of the animals or con-
tributes to the accident; *?° as where he deliberately allows
them to run at large unlawfully near unfenced tracks.??!
But where a colt escaped from its owner’s premises without
his fault, ran upon a railway crossing within town limits and
was injured through the company’s negligence, it was held
not to be wrongfully on the highway as against the com-
pany.222

In Mississippi, the fact than an animal was trespassing on
the track, being at large in a stock-law district, does not
preclude the owner from recovering for its being negligently
killed.223. The company is required under such circum-
stances to exercise ordinary, not the utmost, care, and the
owner assumes some of the risks of exposure.?** The
owner may pasture his animals in the commons of incor-
porated towns where this is lawful and, though such con-
duct may be dangerous and reprehensible, it does not di-

™7 Grand Rapids & I. R. Co. v. Cameron, 45 Mich. 451.

"8 Green v. St. Paul, M. & M. R. Co., 55 Minn. 192, 60 id. 134.

© Bricson v. Duluth & I. R. Co., 57 Minn. 26; Watier v. Chic., St. P.,
M. & O. R. Co., 31 id. 91. :

“© Watier v. Chic. St. P., M. & O. R. Co., supra.

"1 Moser v. St. Paul & D. R. Co., 42 Minn. 480; Locke v. St. Paul &
Pac. R. Co., 15 id. 350.

“2 Wohl v. Chic., M. & St. P. R. Co., 61 Minn. 321.

9 Roberds v. Mobile & O. R. Co., 74 Miss. 334. ;

4 Cantrell v. Kansas City, M. & B. R. Co., 69 Miss. 435; Memphis
&C. R. Co. v. Blakeney, 43 id. 218; New Orleans, J. & G. N. R. Co. v.
Field, 46 id. 573.

See Raiford v. Miss. Cent. R. Co., 43 id. 233.

614 LIABILITY IRRESPECTIVE OF FENCING LAWS.

minish his right to compensation from those injuring the
animals.??°

In Missouri, it is not necessarily contributory negligence in
the owner of animals to permit them to roam at large near a
railway.22° And where the plaintiff turned his horse into com-
mons near a track on which he knew there was salt, this was
held not to be negligence on his part which would prevent re-
covery.?27 This rule is especially applicable where the com-
pany has neglected to fence.??® Where no fence is necessary
and the stock was unlawfully at large, the company is liable
for the gross or wilful negligence of its employees but not for
the mere violation of a city ordinance regulating the rate of
speed.22® In another case it was held that where the train
was running at an illegal rate of speed, the company was
liable for injuring an animal unlawfully at large, if it escaped
without the owner’s knowledge and the train might have
been stopped.?°° Ina recent case it was held that permitting
an animal to run at large in violation of the stock law is not
the proximate cause of the killing of the animal on a public
crossing, where the company failed to give the statutory
signals. The court said: “Permitting domestic animals to
run at large in violation of the stock law is no doubt evidence
of negligence when considered only as an abstract question,
but the negligence of the plaintiff available to defendant in a

”© Chic., St. L. & N. O. R. Co. v. Jones, 59 Miss. 465.

7 Schwarz v. Hannibal & St. J. R. Co., 58 Mo. 207; Tarwater v.
Same, 42 id. 193; Turner v. Kan. City, St. J. & C. B. R. Co., 78 id. 578;
Hill v. Mo. Pac. R. Co., 121 id. 477; Nolon wv. Chic. & A. R. Co., 23 Mo.
App. 353.

See Hannibal & St. J. R. Co. v. Kenney, 41 Mo. 271.

77 Brown v. Hannibal & St. J. R. Co., 27 Mo. App. 304.

*® Donovan v. Hannibal & St. J. R. Co., 89 Mo. 147; Stanley v. Mo.
Pac. R. Co., 84 id. 625; Boyle v. Same, 21 Mo. App. 416.

See Patton v. West End N. G. R. Co., 14 Mo. App. 589.

#° Windsor v. Hannibal & St. J. R. Co., 45 Mo. App. 123.

And, generally, the company is liable for a wanton injury, even though
the owner was negligent: Clem v. Wabash R. Co., 72 id. 433.

© Bowman v. Chic. & A. R. Co., 85 Mo. 533.

ANIMALS RUNNING AT LARGE, ETC. 615

suit like this must be contributive—i. ¢., the direct and proxi-
mate cause of the injury of which plaintiff complains. It
will not do to say that the act of permitting plaintiff's cow
to escape and run at large was negligence directly con-
tributing to the injury merely because if she had been kept
in the enclosure she would not have got upon the crossing,
for the same kind of logic would prove the plaintiff guilty
of negligence by the simple act of owning the cow. Ina
legal sense it must be the direct and proximate, and not the
remote, cause of the injury; or, in other words, it must have
been near in the order of causation .. and must have
contributed, to some extent, directly to the injury, and must
have been not a mere technical or formal wrong contributing
either incidentally or remotely or not at all to the injury.” 234

In Montana, an owner of stock is not guilty of contrib-
utory negligence in turning it out to graze on the public
domain near a railway.?*?

Under the Nebraska statute, the fact that the owner of
animals unlawfully permitted them to run at large is no de-
fence to an action against the company for damages re-
sulting from its failure to fence.?%*

In New Jersey it has been held that the owner of animals
that break out of his pasture, stray on the track and are
killed through the negligence of the company’s employees,
cannot recover by reason of his contributory negligence in
permitting them to stray.”**

In New York, prior to the fencing statutes, where animals

™ Kirkpatrick v. Mo. K. & T. R. Co., 71 Mo. App. 263, 267. See
Sullivan v. Hannibal & St. J. R. Co., 72 Mo. 195.

2 McMaster v. Montana Un. R. Co., 12 Mont. 163.

*® Burlington & Mo. River R. Co. v. Brinkman, 14 Neb. 70; Same v.
Franzen, 15 id. 365; Chic., B. & Q. R. Co. v. Sims, 17 id. 601.

So, where he negligently allowed them to escape: Burlington & M. R.
R. Co. v. Webb, 18 id. 215.

4 Case v. Cent. R. Co. of N. J., 50 N. J. L. 471; Price v. N. J. R. &
T. Co., 31 id. 229. And see Vandegrift v. Rediker, 22 id. 185.

616 LIABILITY IRRESPECTIVE OF FENCING LAWS.

were trespassers, the plaintiff could not maintain an action
for their death even if caused by the gross negligence of the
company.”*> But under the statute the simple negligence
of the owner in permitting animals to run at large in the
highway or to trespass will not prevent his recovery, where
the injury to them results from the failure of the company
to fence its track.?7°° It is otherwise where the owner does
some positive act increasing the danger, or voluntarily per-
mits his animals to stray on the track.?37

In North Carolina, it is held that the fact that the plaintiff
allowed an animal to stray and go on the track is not suff-
cient negligence to bar recovery.7?8 And it is not contrib-
utory negligence to put cattle in an enclosure of forty acres
through which a railway runs; and the fact that the stock
law is in force in the place makes no difference.?*®

In North Dakota, the fact that an animal is a trespasser
without the owner’s fault does not relieve the company of the
obligation to use reasonable care to prevent injury.24° Where
the plaintiff’s colt, turned loose to feed on his land, was killed
while trying to cross the track on a private crossing built
by the company for the plaintiff’s use in driving stock, it was
held not to be a trespassing animal but one lawfully on the
crossing.2#

In Ohio, where animals are at large witHout the omission

* Tonawanda R. Co. v. Munger, 5 Denio (N. Y.) 255.

“Corwin v. N. Y. & E. R. Co., 13 N. Y. 42; Munch v. N. Y. Cent.
R. Co., 29 Barb. (N. Y.) 647. And see Potter & Parlin Co. v. N. Y. Cent.
& H.R. R. Co., 22 Misc. (N. Y.) 10. But see Marsh v. N. Y. & E. R.
Co., 14 Barb. 364; Clark v. Syracuse & U. R. Co., 11 id. 112.

See, also, the cases cited in § 130, infra.

™ Brady v. Rensselaer & S. R. Co., 1 Hun (N. Y.) 378, citing Corwin
v. N. Y. & E. R. Co., supra.

** Bethea v. Raleigh & A. R. Co., 106 N. C. 279; Roberts v. Richmond
& D. R. Co., 88 id. 560; Farmer v. Wilmington & W. R. Co., Ibid. 564.

**° Horner v. Williams, 100 N. C. 230.

“° Bostwick v. Minneapolis & P. R. Co., 2 N. D. 4g0.

*" Bishop v. Chic, M. & St. P. R. Co., 4 N. D. 536.

ANIMALS RUNNING AT LARGE, ETC. 617

of reasonable care on the part of the owner, he is not guilty of
contributory negligence.?4?

In Oregon, it has been held that the owner cannot let
stock roam wherever their instincts incline them, though
he may depasture them on the “common unfenced
range.” #8 And the negligence of a herder who leaves sheep
at night between a river and a railway track beyond which
is their pasture prevents recovery for their loss.24# But
the plaintiff's negligence in driving loose a herd of eleven
horses that had never before seen an engine will not prevent
recovery, if there was gross negligence on the part of the
company’s employees.?4° Where the owner is not bound
to keep his stock in an enclosure, he is not guilty of con-
tributory negligence in letting them run at large.?4°

In Pennsylvania, an owner of cattle suffered to go at large
and killed on a railway track, without wantonness or such
gross negligence as amounts to it, has no recourse to the
company or its servants; °4* and this is also the case where
they have escaped from a properly fenced enclosure without
his knowledge.*48

In South Carolina it has been held that the owner of a
horse running at large is not guilty of contributory negli-
gence.*4* But, since the passage of the stock law, as was said
before, less care is required of the company than formerly.?°°

*® Marietta & Cinc. R. Co. v. Stephenson, 24 O. St. 48. And see the
comments in Sloan v. Hubbard, 34 id. 583. See, also, Cranston v. Cinc.,
H. & D. R. Co., 1 Handy (O.) 193; Pittsburgh, Ft. W. & C. R. Co. v.
Methven, 21 O. St. 586.

*8 Hindman v. Oreg. R. & Nav. Co., 17 Oreg. 614.

** Keeney v. Oreg. R. & Nav. Co., 19 Oreg. 291.

*” Holstine v. Oreg. & Cal. R. Co., 8 Oreg. 163.

“© Moses v. So. Pac. R. Co., 18 Oreg. 385. As to whether the common-
law rule as to restraining animals is in force in Oregon, see § 70, supra.

“N.Y. & E. R. Co. v. Skinner, 19 Pa. St. 298.

** North Pa. R. Co. v. Rehman, 49 Pa. St. ror.

“4° Murray v. So. Car. R. Co., 10 Rich. L. (S. C.) 227.

*” See Joyner v. So. Car. R. Co., 26 S. C. 49, and cases cited in § 132,
supra.

618 LIABILITY IRRESPECTIVE OF FENCING LAWS.

In Tennessee, where the statutes recognize the running out
of stock on the common as lawful, the fact that the owner
of an animal allowed it to be out of his enclosure cannot be
relied on by the company, either to defeat the action or in
mitigation of damages."

In Texas, where animals are unlawfully at large the com-
pany is liable only for gross negligence.2°? Thus, when
mules were at large in violation of an ordinance, the com-
pany, in the absence of gross negligence, was held not liable
for their being killed by an engine running at an unlawful rate
of speed.25* Where a fence is not required the company is
not liable for killing animals running at large unless the em-
ployees failed to use ordinary care.°* And where animals are
unlawfully at large, failure to fence does not make the com-
pany liable unless its negligence caused the accident.?*5

In Vermont, the owner of stray cattle cannot recover
against the company without proof of its negligence, even
when it has neglected the statutory duty of fencing.*®*

In Washington it is not contributory negligence for the
owners of animals to let them run at large.257 Nor is it in
West Virginia, though the owner takes the risk of unavoid-
able accidents.?58

** Memphis & C. R. Co. v. Smith. 9 Heisk. (Tenn.) 860.

Internat. & G. N. R. Co. v. Dunham, 68 Tex. 231; Same wv. Cocke,
64 id. 151; Houston & T. C. R. Co. v. Nichols (Tex. Civ. App.), 39 S. W.
Rep. 954.

*° Mo., K. & T. R. Co. v. Russell (Tex. Civ. App.), 43 S. W. Rep. 576.

*“ Houston & T. C. R. Co. v. Jones (Tex. Civ. App.), 40 S. W. Rep.
745.

*° Evans v. Sherman, S. & S. R. Co. (Tex. Civ. App), 37 S.W. Rep. 93.

*“ Jackson v. Rutland & B. R. Co., 25 Vt. 150.

*"Timm v. North. Pac. R. Co., 3 Wash. Ty. 200.

But one camping for the night and leaving his horses loose in an un-
fenced field, without taking any steps to prevent their going on the track,

cannot recover, if they are killed: Dickey v. North. Pac. R. Co., 19 Wash.
350.

“Washington v. Balt. & O. R. Co., 17 W. Va. 190; Layne v. O. River
R. Co., 35 id. 438; Blaine v. Chesapeake & O. R. Co., 9 id. 252; Baylor
v. Balt. & O. R. Co., Ibid. 270.

ANIMALS RUNNING AT LARGE, ETC. 619

In Wisconsin, the contributory negligence of the owner
has been held to be a defence to his action, though the com-
pany has failed either to erect or maintain fences.2°® But
under the present statute the company is liable for injuries
caused to cattle by its failure to fence, where there is no evi-
dence that the owner drove them on the right of way or
abandoned them where they were certain to go on the
track.?60

In Canada, there is no responsibility on the part of the
company as to straying animals killed by trains.?°"

It will be observed from these cases that, as a general rule,
where the owner of animals has taken every reasonable
means of securing them and, without his fault, they escape
and run at large and are killed by the company’s negligence,
he will not be held guilty of contributory negligence so as
to bar recovery.2®% To “suffer to be at large” implies per-

*° Curry v. Chic. & N. R. Co., 43 Wis. 665. And see Jones v. Sheboygan
& F. de L. R. Co., 42 id. 306; Lawrence v. Milwaukee, L. S. & W. R. Co.,
Ibid. 322; McCall v. Chamberlain, 13 id. 637; Galpin v. Chic. & N. R.
Co., 19 id. 604.

But the contributory negligence must be shown to have directly caused
the injury: Sika v. Chic. & N. R. Co., 21 id. 370.

°° Heller v. Abbot, 79 Wis. 409.

* Can. Pac. R. Co. v. Cross, Rap. Jud. Quebec, 3 B. R. 170.

This case did not follow the decision in Pontiac Pac. Junc. R. Co. v.
Brady, Montr. L. Rep., 4 Q. B. 346, owing to a change made by sub-
sequent legislation.

2 Isbell v. N. Y. & N. H. R. Co., 27 Conn. 393; Louisville, N. A. &
C. R. Co. v. Ousler, 15 Ind. App. 290; Chic., St. L. & P. R. Co. v. Nash,
I id. 298; Kan. Pac. R. Co. v. Wiggins, 24 Kan. 588; Hohl v. Chic., M.
& St. P. R. Co., 61 Minn. 321; Bowman v. Chic. & A. R. Co., 85 Mo. 533;
Bostwick v. Minneapolis & P. R. Co., 2 N. D. 440; Marietta & Cinc. R.
Co. v. Stephenson, 24 O. St. 48 [see Sloan v. Hubbard, 34 id. 583];—
cited supra.

See, also, to the same effect, Toledo, P. & W. R. Co. v. Johnston, 74 Ill.
83; Dennis v. Louisville, N. A. & C. R. Co., 116 Ind. 42; Ohio & M. R.
Co. v. Craycraft, 5 Ind. App. 335; Chic, St. L. & P. R. Co. v. Fenn, 3 id.
250; Story v. Chic., M. & St. P. R. Co., 79 Ia. 402; Moriarty v. Cent. Ia.
R. Co., 64 id. 696; Pearson v. Milwaukee & St. P. R. Co., 45 id. 497; Mo.
Pac. R. Co. v. Roads, 33 Kan. 640; Parker v. Lake Shore & M.S. R. Co.,

620 LIABILITY IRRESPECTIVE OF FENCING LAWS.

mission on the owner’s part.2®? Where a teamster left a
mule in a stable with the door open, as usual, in order that it
might go to water, and it escaped and was killed, it was held
not to be “permitted to run at large.” 2° And where cows left
in a highway for the purpose of milking them, with intent
to put them in an enclosure, afterwards stray away they are
not “suffered to be at large.” 26° The fact that the plaintiff
kept his hogs in an insecure enclosure so that they escaped
was held not to prevent recovery, where even a lawful fence
would not have prevented their going on the track.?°° And
the fact that an animal escaped from a car through the
plaintiff’s negligence, ran several miles and was then killed
by another train, was held not to be the proximate cause of
the injury nor to defeat the action.**

The mere knowledge of the owner of animals that the land
into which he turns them is not fenced or is insufficiently
fenced from the railway has been held in many cases to
amount to contributory negligence.?®* So, where the plain-

93 Mich. 607; Nelson v. Great North. R. Co., 52 Minn. 276; Cox vw.
Minneapolis, S.S. M. & A. R. Co., 41 id. 101; Pittsb., Cine. & St. L. R.
Co. v. Howard, 4o O. St. 6; Chic. & N. R. Co. v. Goss, 17 Wis. 428.

Contra, North Pa. R. Co. wv. Rehman, 49 Pa. St. ror, cited supra;
Fisher v. Farmers’ Loan & Trust Co., 21 Wis. 73; Munger v. Tonawanda
R. Co., 4 N. Y. 349.

*8 Ohio & Miss. R. Co. v. Jones, 63 Ill. 472; Parker v. Lake Shore &
M.S. R. Co., supra; Marietta & Cinc. R. Co. v. Stephenson, 24 O. St. 48.

** Doran v. Chic., M. & St. P. R. Co., 73 Ia. 115.

And the fact that the plaintiff had a horse which was in the habit of
opening the gate of the barn-lot and did so on the night in question and
let out a team which was killed, was held not to amount to such contribu-
tory negligence as would defeat the plaintiff's recovery: Pacific R. Co.
v. Brown, 14 Kan. 469.

*° Bulkley v. N. Y. & N. H. R. Co., 27 Conn. 479.

*° Leavenworth, T. & S. R. Co. v. Forbes, 37 Kan. 445.

*T Louisville & N. R. Co. v. Kelsey, 89 Ala. 287.

* Chic., St. L. & P. R. Co. v. Nash, 1 Ind. App. 298; Indianapolis & C.
R. Co. v. Wright, 13 Ind. 213; Dayton & Mich. R. Co. v. Miami Co.
Infirmary, 32 O. St. 566; Sandusky & C. R. Co. v. Sloan, 27 id. 341;
Peterson v. North. Pac. R. Co., 86 Wis. 206; Trow v. Vermont Cent. R.
Co., 24 Vt. 487.

ANIMALS RUNNING AT LARGE, ETC. 621

tiff knew of a storm that had prostrated many fences;?%
where animals were turned loose in a place where the person
in charge knew a forest fire had passed and he made no effort
to discover whether the pasture fences had been injured;?7°
and where the plaintiff’s tenant knew that the plaintiff’s horse
used to pass over a cattle-guard, and yet voluntarily turned it
out near the crossing.* It has even been held that one
habitually turning his horses on the company’s right of way
could not recover for an injury to them, though the com-
pany was in fault in not maintaining a fence. ‘To habit-
ually turn animals loose upon a railroad track or right of
way is... something more than contributory negli-
gence.” 272 But, as a general rule, where the company has
neglected to perform its statutory duty of erecting or main-
taining fences, gates, or cattle-guards, it cannot defeat the
defendant’s action by setting up his knowledge of that fact
as a proof of contributory negligence on his part.?"* Where
the owner of an animal knowingly let it enter a field where
was a gate left open for several months by the company
through which it passed on the track and was injured,
he was held not guilty of contributory negligence unless

** Carey v. Chic., M. & St. P. R. Co., 61 Wis. 71.

Otherwise where the storm is subsequent to the turning in of the
animal: Williams v. Mo. Pac. R. Co., 74 Mo. 453.

“© McCann v. Chic., St. P., M. & O. R. Co., 96 Wis. 664.

"La Flamme v. Detroit & M. R. Co., 109 Mich. 509.

2 Fort Wayne, C. & L. R. Co. v. Woodward, 112 Ind. 118.

8 McCoy v. Cal. Pac. R. Co., 40 Cal. 532; Macon & W. R. Co. v.
Baber, 42 Ga. 300; Terre Haute & I. R. Co. v. McCord, 56 Ill. App. 173;
Toledo, St. L. & K. C. R. Co. v. Burgan, 9 Ind. App. 604; Wilder v.
Me. Cent. R. Co., 65 Me. 332; Schubert v. Minneapolis & St. L. R. Co.,
27 Minn. 360; Wilson v. St. L., I. M. &S.R. Co., 87 Mo. 431; Cressey
v. North. R. Co., 59 N. H. 564; Horn v. Atlantic & St. L. R. Co., 35 id.
169; Cleveland, C., C. & I. R. Co. v. Scudder, 40 O. St. 173; Gulf,
C&S. FR. Co. v. Cash, 8 Tex. Civ. App. 569; Congdon v. Cent. Vt.
R. Co., 56 Vt. 390; Mead v. Burlington & L. R. Co., 52 id. 278; Dunsford
v. Mich. C. R. Co., 20 Ont. App. 577.

That the question is for the jury, see Johnson v. Chic., M. & St. P. R.
Co., 29 Minn. 425; Evans v. St. Paul & S.C. R. Co., 30 id. 486.

622 LIABILITY IRRESPECTIVE OF FENCING LAWS.

the natural and probable consequence of his action would
be the animal’s going on the track.2"* A distinction has
been made in such cases between letting at large mules,
which are liable to strol! off, and cattle which are less liable
to do so.?75

The meaning of the expression “running at large” in stat-
utes making the owners of animals liable for their trespasses
has been already discussed.2"* In addition to the cases cited,
some further ones, dealing with the question of contributory
negligence only, will be considered here. In the following
instances the animals have been held to be “running at
large’: where a horse has escaped control, although it has
on a halter and bridle;?"* where a team harnessed to a
wagon escaped control;*"* where a sucking colt strayed
away from a mare led by the plaintiff;?"® where a herdsman
in following one of the herd which has strayed gets so far
from the main body that he is unable to prevent their loitering
or stopping at a highway crossing when he sees a train ap-
proaching; 7®° where cattle roam on a highway without re-
straint, though on the owner’s premises; #8! where a boy
drove cattle across a track without noticing that a steer was
left behind; 78? where mules had escaped from a stable at
night in an unknown manner.*8* And where the plaintiff's
son, as it was getting dark, was taking three horses along a
road that crossed a railway, riding one, leading another, and

74 Take Erie & W. R. Co. v. Beam, 60 Ill. App. 68.

7 See Macon & W. R. Co. v. Baber, 42 Ga. 300, and Cent. R. & Bkg.
Co. v. Davis, 19 id. 437.

8 See § 77, supra.

*7™ Welsh v. Chic., Burlington & Q. R. Co., 53 Ia. 632.

78 Inman v. Chic., M. & St. P. R. Co., 60 Ia. 450.

*° Smith v. Kan. City., St. J. & C. B. R. Co., 58 Ia. 622. And see
Southern Kansas R. Co. v. McKay (Tex. Civ. App.), 47 S. W. Rep. 479,
as to cows returning to their sucking calves over a track.

*° Thompson v. Grand Trunk R. Co., 22 Ont. App. 453.

* Johnson v. Minneapolis & St. L. R. Co., 43 Minn. 207.

™ Valleau v. Chic., M. & St. P. R. Co., 73 Ia. 723.

*8 Molair v. Port Royal & A. R. Co., 29 S. C. 152.

ANIMALS RUNNING AT LARGE, ETC. 623

driving the third, and the latter, being from sixty to one
hundred feet in front, tried to cross the track and was killed
by the train, it was held that it was not “in charge” of any
person and the plaintiff could not recover.?84

In the following instances the animals were held not to be
“running at large”: where stock is in charge of a herder; 28°
where cattle, driven by their owner, escape and run on the
track; *°° where horses were attached to a sleigh on a prairie
with a drunken driver; 28" where a bull was pastured in a
fenced field with the railway running through it unfenced.?88

Where the driver or rider of animals fails to look or listen
on approaching the crossing, in cases where he might have
done so, he will be held guilty of contributory negligence; 78°
and the owner will be held responsible for the conduct of
his servant in this respect.2°° But the mere fact that a per-
son on horseback, driving cattle to a crossing, did not ride
forward and look out has been held not to be conclusive evi-
dence of negligence on his part.2°! And where the com-
pany’s employees by the use of ordinary care could have
avoided injuring the animal, recovery will not be defeated by
the owner’s negligence in failing to look out.°? Nor do

“4 Markham v. Gr. West. R. Co., 25 U. C. Q. B. 572. And see Cooley
v. Grand Trunk R. Co., 18 id. 96.

*5 Keeney v. Oreg. R. & Nav. Co., 19 Oreg. 291.

*° Smith v. Chic., R. I. & P. R. Co., 34 Ia. 96.

*? Grove v. Burlington, C. R. & N. R. Co., 75 Ia. 163.

*® Gooding v. Atchison, T. & S. F. R. Co., 32 Kan. 150.

As to the meaning of “confined in the night-time” under the Kansas
statute, see Kan. Pac. R. Co. v. Landis, 24 Kan. 406.

*” Hager v. South. Pac. R. Co., 98 Cal. 309; Louisv., N. A. & C. R. Co.
v. Stommel, 126 Ind. 35; Schaefert v. Chic, M. & St. P. R. Co., 62 Ia.
624; Rheiner v. Chic., St. P., M. & O. R. Co., 36 Minn. 170; Kimes v.
St. Louis, I. M. & S. R. Co., 85 Mo. 611; Gunn v. Wis. & M. R. Co., 70
Wis. 203.

Touisv., N. A. & C. R. Co. v. Stommel, supra.

™ Tuthill v. North. Pac. R. Co., 50 Minn. 113. And see Bates v. Fre-
mont, E. & M. V. R. Co., 4 S. D. 304.

7 Wooster v. Chic, M. & St. P. R. Co., 74 Ia. 593. .

But in Hager v. South. Pac. R. Co., supra, it was held that the owner

624 LIABILITY IRRESPECTIVE OF FENCING LAWS.

ordinary care and diligence necessarily require that a land-
owner through whose pasture a railway passes should keep
a lookout at a crossing or an attendant to watch the cattle.?%
And one lawfully crossing a railroad at grade with a drove
of cattle is not bound to give a signal to an approaching
train: if necessary, it is the duty of the company to employ
a person to give signals.?°*

Where a mule was fast in a trestle and the owner, when
he had ample time to do so, failed to find the bridge watch-
man and give him notice, and the animal was killed, the com-
pany was held not liable therefor.2°° Nor can the owner re-
cover when he was present and could have driven his ani-
mal from the track but did not do so.?9* But the driver of
a team when the wagon was stalled on the track was held not
guilty of contributory negligence because he tried to ex-
tricate the team instead of going round a curve to stop any
train that might be approaching.?®7 Otherwise, where he
failed to unhitch the horses, as he might have done.?98 Nor
has he the right to rely on the company’s duty of giving
signals, if he might by reasonable exertion have got the ani-
mal off the track.?°® Where he was using reasonable dili-
gence in trying to recapture an animal running upon a cross-
ing, he may recover.?°°

A rider is not bound to abandon a crossing unless its use
is necessarily dangerous to an ordinarily careful man, but in
crossing he should use due care to avoid danger. Evidence

could not recover for an injury in such a case unless it was wilful and de-
liberate.

*® White v. Concord R. Co., 30 N. H. 188.

™ Reeves v. Delaware, L. & W. R. Co., 30 Pa. St. 454.

*= Ga. R. & Bkg. Co. v. Parks, 91 Ga. 71.

** Moody v. Minneapolis & St. L. R. Co., 77 Ia. 29.

™ Chic. & Alton R. Co. v. Hogarth, 38 Ill. 370. And see Snook v.
Clark, 20 Mont. 230.

™ Frost v. Milwaukee & N. R. Co., 96 Mich. 470.

™ Milburn v. Kan. City, St. J. & C. B. R. Co., 86 Mo. 104.

™ Clark v. Boston & M. R. Co., 64 N. H. 323.

ANIMALS RUNNING AT LARGE, ETC. 625

of the existence of another crossing near is admissible to
show contributory negligence.3%

The fact that the owner had previously taken his animals
over the company’s right of way will not prevent his re-
covery.°°2 It is otherwise where he knowingly permits them.
to be on the crossing; *°* or allows them to linger by the.
track till they become unmanageable; *°* or rushes his cattle
over, after warning, even though the statutory signals were:
not given; *°° or rides his mule away from the road and on.
to and along the track.8%

The fact that the animals were running at large in a lane
whence they might trespass is not evidence of contributory
negligence; °°" nor is it negligent for the owner, superin-
tending land on the sides of a highway, to permit his dog
to patrol the land in order to keep off trespassers, as a result.
of which it is run over owing to the negligence of a street.
railway company; %°8 nor is the owner of cattle killed in @
pasture guilty of contributory negligence simply because the
pasture was made after the road.3°°

There is no contributory negligence necessarily in trying
to escape the danger by an act in itself dangerous.3!° And
where the plaintiff’s decedent, in endeavoring to prevent his.
horse’s escape, was thrown on the track and killed, the fact
that he incurred great risk from his own horse and took it
was held not to show contributory negligence.*41_ But where

* Harper v. Mo., K. & T. R. Co., 70 Mo. App. 604.

Toledo, St. L. & K. C. R. Co. uv. Jackson, 5 Ind. App. 547; Louis--
ville, E. & St. L. R. Co. v. Hart, 2 id. 130.

8 Connyers v. Sioux City & P. R. Co., 78 Ia. 410.

™ Coughtry v. Willamette St. R. Co., 21 Oreg. 245.

5 Ohio & Miss. R. Co. v. Eaves, 42 Ill. 288.

8° Nashv., C. & St. L. R. Co. v. Spence, 99 Tenn. 218.

*7 Orcutt v. Pac. Coast R. Co., 85 Cal. 201.

*® Meisch v. Rochester Elec. R. Co., 72 Hun (N. Y.) 604.

°° Tarmon v. Columbia & G. R. Co., 32 S. C. 127.

™° Lincoln Rapid Transit Co. v. Nichols, 37 Neb. 332.

"1 Butler v. Milwaukee & St. P. R. Co., 28 Wis. 487.

See Flagg v. Chic. D. & C. G. T. J. R. Co., 96 Mich. 30.

40

626 LIABILITY IRRESPECTIVE OF FENCING LAWS.

a horse, in charge of a servant, became frightened at the
noise of cars in a freight yard, backed over a wall and was
killed, it was held that the owner could not recover, where
the servant voluntarily assumed the risk: such an assump-
tion of danger is not identical with contributory negligence,
as it may be consistent with the exercise of due care.#!?
Where an animal is left unfastened or unattended in a dan-
gerous place, the owner is guilty of contributory negli-
gence.*13_ But where a herder, after rounding up his sheep
a mile and a quarter from the railroad, after some of them
had lain down, went home with his dog, this was held not
to be such contributory negligence as would relieve a com-
pany from liability.244 So, the fact that the plaintiff had per-
mitted his horse to follow him on to the defendant’s track
is not such an abandonment as will prevent recovery, where
the animal afterwards followed him to a safe distance on the
highway and was then frightened and ran back on the un-
fenced track.31® On the other hand, where cattle were
turned on a highway, unattended except by a dog, to cross
two railway tracks eighty yards apart and the dog drove
them between the tracks to the owner’s knowledge, he mak-

*? Miner v. Conn. Riv. R. Co., 153 Mass. 308.

8 Deville v. South. Pac. R. Co., 50 Cal. 383; Higgins v. Wilmington
City R. Co., 1 Marv. (Del.) 352; Louisville & N. R. Co. v. Eves, 1 Ind.
App. 224; Chic, K. & W. R. Co. v. Totten, 1 Kan. App. 558; Wein-
gartner v. Louisville & N. R. Co. (Ky.), 42 S. W. Rep. 839; Dolan v.
Newburgh, D. & C. R. Co., 120 N. Y. 571; Gray v. Second Ave. R. Co.,
65 id. 561; Bowman v. Troy & B. R. Co., 37 Barb. (N. Y.) 516; Edwards
v. Phila. & R. R. Co. (Pa.), 23 Atl. Rep. 894; Olson v. Chic., M. & St.
P. R. Co., 81 Wis. 41; Gunn v. Wis. & M. R. Co., 70 id. 203; McCandless
v. Chic. & N. R. Co., 45 id. 365; Tower v. Providence & W. R. Co., 2
R. I. 404; Sinkling v. Ill. Cent. R. Co., 10 S. D. 560. See Brady v.
Rensselaer & S. R. Co., 1 Hun (N. Y.) 378.

See as to obstructing an electric car track, Winter v. Federal St. & P.
V. Pass. R. Co., 153 Pa. St. 26, cited in § 68, supra.

*4 McCoy v. So. Pac. R. Co. (Cal.), 26 Pac. Rep. 620.

** Toledo, St. L. & K. C. R. Co. v. Jackson, 5 Ind. App. 547. And see
Southworth v. Old Colony & N. R. Co., 105 Mass. 342.

ANIMALS RUNNING AT LARGE, ETC. 627

ing no effort to drive them over the further track, it was held
that he could not recover for one of the cattle killed because
of the engineer’s failure to keep a proper lookout.*4® And
where the plaintiff drove four horses across the track without
halter or reins and they were run into and killed, he was
held guilty of contributory negligence.3!7

An owner who allowed his stock to graze near the track
in the charge of a fourteen-year-old girl was held not guilty
of contributory negligence as a matter of law.*!8 So, where
a boy was in charge of a cow which ran away and got on the
track by reason of defective cattle-guards.2!9 Nor was a
hackman negligent in having left his team in the care of a
fellow hackman, where it was afterwards frightened by a train
and ran away.®?°

Driving a horse at a forbidden rate of speed is negligence
on the part of the driver if it contributes directly to the acci-
dent.272_ And it is negligence for the driver of a fire-depart-
ment truck to approach a street on which cars run without
having his horses under such control that he can stop them,
even though he has, by ordinance, the right of way.3??

It is contributory negligence, as a rule, to take animals
near the track or near cars under circumstances when they
are liable to be frightened; *#° though this does not always

6 Bunnell v. Rio Grande W. R. Co., 13 Utah 314.

7 Grand Trunk R. Co. v. Bourassa, 19 Leg. N. (Can.) 131.

38 Hutchinson v. Chic., M. & St. P. R. Co.,9 S. D. 5.

*° Phillips v. Can. Pac. R. Co., 1 Ma. 110.

20 Fritts v. N. Y. & N. E. R. Co., 62 Conn. 503.

81 Weller v. Chic., M. & St. P. R. Co., 120 Mo. 635.

® Garrity v. Detroit Citizens’ St. R. Co., 112 Mich. 369.

%8 Manchester, S. & L. R. Co. v. Woodcock, 25 L. T. N. S. 335; Louis-
ville & N. R. Co. v. Schmidt, 81 Ind. 264; Un. Pac. R. Co. v. Hutchinson,
39 Kan. 485; Whitney v. Me. Cent. R. Co., 69 Me. 208; State v. Cumber-
land & P. R. Co. 87 Md. 183; Cornell v. Detroit Elec. R. Co., 82 Mich.
495; Moore v. Kan. City & I. R. T. R. Co., 126 Mo. 265; Pittsb. South.
R. Co. v. Taylor, 104 Pa. St. 306; Phila, W. & B. R. Co. w. Stinger, 78
id. 219; Hargis v. St. Louis, A. & T. R. Co., 75 Tex. 19; New Brunswick
R. Co. v. Vanwart, 17 Can. Sup. Ct. 35.

628 LIABILITY IRRESPECTIVE OF FENCING LAWS.

necessarily prevent recovery.*#* The driver of horses going
near electric cars takes the risk of his horses being frightened
by the ordinary signals of the car.*?° But he is not guilty
of contributory negligence, as a matter of law, in driving on
a street traversed by such cars, though the space between
the track and a retaining wall is narrow.*”°

Voluntary drunkenness is no excuse for contributory neg-
ligence and the drunkenness of the owner of an animal or his
servant will, in many cases, bar recovery.®?*

Conversely, the owner of animals at large it liable to the
company for an injury caused to a train by collision, where
he has been negligent in his care of his stock.??8

The rule of comparative negligence formerly prevailed in
Illinois. If the plaintiff's negligence was slight and the de-
fendant’s gross in comparison, the former could recover;
otherwise, not.22® And an instruction which authorized the
jury to find for the plaintiff if they found the defendant to
have been guilty of a greater degree of negligence than the
former was held erroneous.*®° This is not the rule in

*4 Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 150;
Wabash R. Co. v. Speer, 156 Ill. 245.

And see Herrick v. Sullivan, 120 Mass. 576; Stamm v. South. R. Co.,.
1 Abb. N. Cas. (N. Y.) 438; Carraher v. San Francisco Bridge Co., 100:
Cal. 177; Flewelling v. Lewiston & A. H. R. Co., 89 Me. 585; Louisville,
N. A. & C. R. Co. v. Davis, 7 Ind. App. 222.

»° Bast St. Louis & St. L. E. St. R. Co. v. Wachtel, 63 Il. App. 181.

8 Gibbons v. Wilkesbarre & S. St. R. Co., 155 Pa. St. 279.

*" See Welty v. Indianapolis & V. R. Co., 105 Ind. 55; Cleveland, C.,
C. & St. L. R. Co. v. Ducharme, 49 Ill. App. 520; Butcher v7. W. Va. &
P. R. Co., 37 W. Va. 180.

"° Hannibal & St. J. R. Co. v. Kenney, 41 Mo. 271; Sinram v. Pitts-
burgh, F. W. & C. R. Co., 28 Ind 244; Annapolis & E. R. Co. v. Baldwin,
60 Md. 88.

™ Chic., B. & Q. R. Co. v. Dickson, 88 Ill. 431; Rockford, R. I. & St.
L. R. Co. v. Irish, 72 id. 404; Toledo, W. & W. R. Co. v. McGinnis, 71 id.
346; Chic. & N. R. Co. v. Harris, 54 id. 528; Ill. Cent. R. Co. v. Middles-
worth, 43 id. 64; Same v. Goodwin, 30 id. 117.

And see Fisher v. Farmers’ Loan & Trust Co., 21 Wis. 73; Galpin v-
Chic. & N. R. Co., 19 id. 604.

*° Wabash R. Co. v. Jones, 5 Ill. App. 607.

ANIMALS RUNNING AT LARGE, ETC. 629

Missouri; *** but a plaintiff there may recover though guilty
of some negligence, if the defendant by the use of ordinary
care could have avoided the injury: it is only where the plain-
tiff's negligence contributes directly to the injury that he
is precluded.**2, The doctrine has now been abolished in
Illinois.38%

As a rule, the burden of showing contributory negligence
is on the defendant: its absence need not be averred or proved
by the plaintiff.*8* But where a complaint alleged that the
plaintiff was without fault, the defendant was held entitled
to the benefit of evidence of contributory negligence though
he had not pleaded it.38° And there are cases holding that
due care or the absence of contributory negligence on the
part of the plaintiff must be alleged and shown.*8® But where
an injury is alleged to be wilfully done, it is not necessary to
allege that the plaintiff's carelessness did not contribute
thereto.337

135. Notice; Action; Parties; Pleading.—In order to main-
tain an action the statutory provisions as to notice of the
claim, if there are any, must have been complied with.33%
It has been held that the notice need contain nothing but
a statement of the claim and of the fact of the injury ;3*® that

1 Brooks v. Hannibal & St. J. R. Co., 35 Mo. App. 571.

8 Moore v. Kan. City & I. R. T. R. Co., 126 Mo. 265.

88 See Cicero & P. St. R. Co. v. Meixner, 160 IIl. 320.

4 Joyner v. So. Car. R. Co., 26 S. C. 49; Whittier v. Chic., M. & St. P.
R. Co., 24 Minn. 394; Cairo & St. L. R. Co. v. Woosley, 85 Ill. 370.

5 Long v. Southern R. Co., 50 S. C. 49.

*8 Jeffersonville, M. & I. R. Co. v. Lyon, 72 Ind. 107; Stearns v. Old
Colony & F. R. R. Co., 1 Allen (Mass.) 493.

°7 Indianapolis, P. & C. R. Co. v. Petty, 30 Ind. 261.

®8 Kan, Pac. R. Co. v. Ball, 19 Kan. 535; South & North Ala R. Co.
v. Reid, 66 Ala. 250; Cole v. Chic. & N. R. Co., 38 Ia. 311; Ryan v. Same
(Wis.), 77 N. W. Rep. 894.

®9 Mackie v. Cent. R. of Ia., 54 Ia. 540. —

The misnomer of the defendant was held not to invalidate the notice in
Martin v. Cent. Ia. R. Co., 59 Ia. 411.

630 LIABILITY IRRESPECTIVE OF FENCING LAWS.

a letter notifying the company of the killing of the stock
and another letter stating the amount of damages claimed
are sufficient statutory notice; *4° that a claim of payment is
a sufficient demand for payment; **! that the commencement
of an action within a given time amounts to a presentation
of the claim; *42 that service of notice on a station-agent
is sufficient.24? The posting of a notice by the company of
the killing of stock, as required by statute, may be in any
public place at the station and proof that notice was not
posted at the usual places makes out a prima facie case for the
plaintiff.344

Trespass does not lie against a company for the destruc-
tion of animals, unless done by its direction or with its
assent; the conductor, engineer or subordinate agent who
has charge of the train at the time of the accident is not,
for this purpose, the representative of the corporation. The
proper remedy is case.3*°

An action against a company on its common-law liability
for negligently killmg an animal is transitory and may be

* Jacksonville, T. & K. W. R. Co. v. Harris, 33 Fla. 217.

The demand is not made void by being for too large a sum: Mo. Pac.
R. Co. v. Abney, 30 Kan. 41.

Bt. Scott, W. & W. R. Co. v. Holman, 45 Kan. 167.

*® South & North Ala. R. Co. v. Bees, 82 Ala. 340. See Wood & G.
Mfg. Co. v. Whitcomb (Wis.), 77 N. W. Rep. 175.

8 Smith v. Chic., M. & St. P. R. Co., 60 Ia. 512; Schlengener v. Same,
61 id. 235.

And see, in general, Il]. Cent. R. Co. v. Tilman, 98 Tenn. 573; Ala. Gr.
South. R. Co. v. Killian, 69 Ala. 277; Same wv. Roebuck, 76 id. 277; South
& North Ala. R. Co. v. Brown, 53 id. 651; Mobile & O. R. Co. v. Malone,
46 id. 391; St. Louis & S. F. R. Co. v. Kinman, 49 Kan. 627; Mo. Pac.
R. Co. v. Gill, Ibid. 441; Un. Trust Co. v. Kendall, 20 id. 515; Cent.
Branch R. Co. v. Ingram, Ibid. 66; Keyser v. Kan. City, St. J. & C. B.
R. Co., 56 Ia. 440; Mendell v. Chic. & N. R. Co., 20 id. 9.

*4 St. Louis, I. M. & S. R. Co. v. Wright, 57 Ark. 327.

© Selma, R. & D. R. Co. v. Webb, 49 Ala. 240; ‘Price v. N. J. R. & T.

. Co., 31 N. J. L. 229; Sharrod v. London & N. W. R. Co., 4 Exch. 580.

See State v. Judge, 33 La. Ann. 954.

NOTICE ; ACTION: PARTIES; PLEADING. 631

brought in any county through which the railroad passes.?4
A common-law action may be maintained in one State for the
killing of an animal in another State;347 and where the stat-
utes of two States give similar remedies, an action may be
maintained in either State.348

The repeal of a provision in a company’s charter requiring
the owner of stock killed by the negligence of the company
to sue for damages within six months does not impair the
obligation of the charter.?4°

Where animals were killed at different times, this consti-
tutes different causes of action, and such causes cannot be
united to give jurisdictional value.9®° Where animals were
killed at the same time, this constitutes but one cause of
action.2>? And where a cow and a heifer standing a few feet
apart were killed by a passing train, the objection that they
were not killed at the same time was held untenable, as the
difference in time was inappreciable.3°?

Plaintiffs must be joint owners of stock in order to sue
jointly: otherwise, they cannot recover.3°? Where the
statute enables an owner or special owner to sue, the hirer of
stock who agrees to return them in good condition may sue
without making the owner a party.*°* And a custodian
under such an arrangement as to be accountable for an animal

46 Toledo, W. & W. R. Co. v. Milligan, 52 Ind. 505; Detroit, E.R. &
Ill. R. Co. v. Barton, 61 id. 293.

For cases on procedure in Justices’ Courts, see 1 Rap. & Mack Dig.
Ry. Law 354-368.

47 St. Louis, A. & T. R. Co. v. Holden, 3 Tex. App. (Civ. Cas.) 391.

8 Boyce v. Wabash R. Co., 63 Ia. 70.

“© Touisv. & N. R. Co. v. Williams (Ky.), 45 S. W. Rep. 229. —

* Jeffersonville, M. & I. R. Co. v. Brevoort, 30 Ind. 324; Louisville,
N. A. & C. R. Co. v. Quade, tor id. 364.

1 Indianap. & Cinc. R. Co. v. Elliott, 20 Ind. 430; Binicker v. Hannibal
& St. J. R. Co., 83 Mo. 660; Pucket v. St. Louis, I. M. & S. R. Co., 25
Mo. App. 650.

*2 Lafayette & I. R. Co. v. Ehman, 30 Ind. 83.

8 St Louis, A. & T. H. R. Co. v. Linder, 39 Ill. 433.

4 St. Louis, I. M. & S. R. Co. v. Biggs, 50 Ark. 169.

‘632 LIABILITY IRRESPECTIVE OF FENCING LAWS.

is treated as an owner.*°> Thus, one in possession of an
animal taken up as an estray may recover for its death owing
to the defendant’s negligence; 95 even though, while at-
tempting to comply with the law, he failed to post the animal
in the proper manner.2°* Where the plaintiff had possession
of a mule that he had not paid for, but considered his, and
paid for after it was killed, it was held that he had a special
property in the mule and could recover its full value.2* It
was held in Tennessee that the assignee of a cause of action
against a company for killing stock may sue in the name of
the party whose property was injured, for the assignee’s
cuse.35° In Mississippi it was held that an action for the kill-
‘ing of animals, being ex delicto, cannot be brought in the
‘name of one for the use of another.9®° A father cannot re-
‘cover damages for the killing of stock owned by his
son, though the latter is a minor.**! One whose horse was
‘frightened by the negligence of the company and ran over
-a third person who recovered damages against him, may re-
-cover from the company.?®

The company is not liable for stock killed by one of its
locomotives which was at the time being used by its servant
vwithout authority, for his own purposes and outside of the

** New York, C. & St. L. R. Co. v. Auer, 106 Ind. 219.

Where the plaintiff, a constable, had seized a horse under a distress
-warrant, and it escaped to the railway and was killed owing to the defend-
ant’s negligence, semble, the plaintiff had sufficient property in the horse

‘to entitle him to sue: Simpson v. Great Western R. Co., 17 U. C. Q. B.
57

Peoria, P. & J. R. Co. v. McIntire, 39 Ill. 208.

Chic. & N. R. Co. v. Shultz, 55 Ill. gar.

*8 St. Louis, I. M. & S. R. Co. v. Taylor, 57 Ark. 136.

“EE. Tenn., V. & G. R. Co. v. Henderson, 1 Lea (Tenn.) 1.

An assignee may sue in his own name: Galveston, H. & S. A. R. Co. v.
‘Freeman, 57 Tex. 156.

™ Kan. City, M. & B. R. Co. v. Cantrell, 70 Miss. 329.

™ Morris v. St. Louis, K. C. & N. R. Co., 58 Mo. 78.

*” Nashua I. & S. Co. v. Worcester & N. R. Co., 62 N. H. 159.

NOTICE ; ACTION ; PARTIES ; PLEADING. 633

line of his employment.*®* The engineer is liable over to
the company for an injury resulting from his gross negli-
gence.*** Ina New York case it was held that the engineer
and fireman and the company were all responsible, either
jointly or severally, for an injury resulting from negligence in
conducting the train.3°

The question as to liability where the road has been leased
or is operated by two companies is one largely dependent
on statutory regulations. In Indiana, the corporation own-
ing the railroad is liable for damages by another company
running trains in its own name, and may be sued alone.3¢
A company is liable for an injury by the train of another
company in its exclusive use and possession.?*7 In Missouri,
a company running its trains over part of another com-
pany’s road is liable for killing an animal thereon.?*8 Where
two companies jointly operate a given train, either is or both
are liable for the value of a horse negligently killed there-
by. In New York, all trains permitted by a company are
treated as its trains and it is liable even where the engine
doing the injury belonged to another company.?7° In
Canada a company is liable for an injury by a train of another
company to which it had granted running powers over its
track.37

Where the road has been leased, the lessee operating it
in its own name is not liable for killing stock in Indiana; 3"

8 Cousins v. Hannibal & St. J. R. Co., 66 Mo. 572; N. Y., T. & M. R.
Co. v. Sutherland, 3 Tex. App. (Civ. Cas.) 177.

*4 Chic. & R. I. R. Co. v. Hutchins, 34 Ill. 108.

** Suydam v. Moore, 8 Barb. (N. Y.) 358.

°° Indianapolis & M. R. Co. v. Solomon, 23 Ind. 534; Ft. Wayne, M.
& C. R. Co. v. Hinebaugh, 43 id. 354.

*7 Huey v. Indianap. & V. R. Co., 45 Ind. 320.

6 Farley v. St. Louis, K. C. & N. R. Co., 72 Mo. 338.

*° Moling v. Barnard, 65 Mo. App. 600.

*° Dolan v. Newburgh, D. & C. R. Co., 120 N. Y. 571.

71 Can. Pac. R. Co. v. Falardeau, 16 Queb. L. Rep. 298.

* Dittsb., C. & St. L. R. Co. v. Hannon, 60 Ind. 417; Cine, H. & D: R.
Co. v. Bunnell, 61 id. 183.

634 LIABILITY IRRESPECTIVE OF FENCING LAWS.

nor does the lessee take the franchise subject to liability for
the killing of stock before the lease.*"* In lowa, where two
companies operate trains on one road, one as owner and the
other as lessee, each is liable only for the stock killed by its
own trains.274 In South Carolina, a company leasing its
road is still liable for the killing of stock by the negligence
of its lessees.27® In Texas, where a railroad is without
authority of law leased to another company, both companies.
are liable for injuries thereon.?** But a company is not liable
for stock killed where the road and cars are in possession of
and managed by independent contractors in the construction
of the road.3”7

An action cannot be brought against a company where
stock was run over after the company had ceased to own
or control the road and its franchises had passed to other
corporations.***& But in Indiana it has been held that the
mere appointment of a receiver does not relieve the company
from liability: the receiver operates the road subject to that
liability.37° In Texas, however, it has been held that a com-
pany is not liable for the killing of an animal on its track
where the road was at the time being operated by a receiver,
unless its property has been since returned to it without
sale.?®° In Missouri, a trustee under a mortgage in posses-
sion of and operating the road has been held liable.381_ The

* Pittsburg, C. & St. L. R. Co. v. Kain, 35 Ind. 201.

*4 Stephens v. Davenport & St. P. R. Co., 36 Ia. 327; Clary v. Ta. Mid-
land R. Co., 37 id. 344.

See Liddle v. Keokuk, Mt. P. & M. R. Co., 23 Ia. 378, distinguished in
Stewart v. Chic. & N. R. Co., 27 id. 282.

*° Harmon v. Columbia & G. R. Co., 28 S. C. 4or.

“Internat. & G. N. R. Co. v. Dunham, 68 Tex. 231.

** Houston & G. N. R. Co. v. Van Bayless, 1 Tex. App. (Civ. Cas.) 247..

* Western R. Co. v. Huse, 70 Ala. 565; Same v. Davis, 66 id. 578.

*° Ohio & Miss. R. Co. v. Fitch, 20 Ind. 498; McKinney v. Ohio & M.
R. Co., 22 id. 99; Louisville, N. A. & C. R. Co. v. Cauble, 46 id. 277.
oo Dayhoff v. Internat. & G. N. R. Co. (Tex. Civ. App.), 26 S. W. Rep..

Farrell v. Un. Trust Co., 77 Mo. 475.

NOTICE ; ACTION ; PARTIES ; PLEADING. 635

effect of fencing statutes in determining who is the proper
defendant will be discussed in the next chapter.?®2

A general averment of negligence is sufficient, though it
should appear that such negligence was the proximate cause
of the injury.**? Nor need gross negligence be averred.8+
But where the answer alleges gross negligence in the plain-
tiff, the particular act or omission in which such gross neg-
ligence consisted should be averred.8° Where the statute
makes the fact of injury prima facie evidence of negligence,
an averment that the animal was injured by the defendant’s
train sufficiently alleges negligence.**® Where the plaintiff
sues for an intentional and wilful injury, he cannot recover
on the ground that the engineer was negligent in not stop-
ping the train.28’ Under a charge of negligence, evidence
of failure to keep a proper lookout is admissible.2** But if
the declaration states that the injury was due to negligence
after seeing the animals, the plaintiff cannot recover if the
evidence shows the negligence was before seeing them.38°
And in a complaint for negligently and carelessly running the
train, evidence cannot be given of negligence in permitting
grass or water at or near the track.2°° So, a complaint that
the defendant negligently ran over a cow refers to negligence
in operating the train, and evidence of negligence in per-
mitting bushes to grow near the track so as to conceal cattle

5 See § 143, infra.

*8 Jeffersonville R. Co. v. Martin, 10 Ind. 416; Stanton v. Louisville &
N. R. Co., 91 Ala. 382; Mack v. St. Louis, K. C. & N. R. Co., 77 Mo.
232; Berkley v. Chic., R. I. & P. R. Co. (Mo. App.), 3 West. Rep. 765;
Jacksonville, T. & K. W. R. Co. v. Jones, 34 Fla. 286; Hawker v. Balt.
& O. R. Co., 15 W. Va. 628.

54 Chic., B. & Q. R. Co. v. Carter, 20 Ill. 390.

°8 Jeffersonville, M. & I. R. Co. v. Dunlap, 29 Ind. 426.

8 St. Louis, I. M. & S. R. Co. v. Brown, 49 Ark. 253.

37 Indiana, B. & W. R. Co. v. Overton, 117 Ind. 253.

%® Omaha & R. V. R. Co. v. Wright, 49 Neb. 456.

*° Hawker v. Balt. & O. R. Co., 15 W. Va. 628; Wallace v. San Antonio
& A. P. R. Co. (Tex. Civ. App.), 42 S. W. Rep. 865.

® Milburn v. Han. & St. J. R. Co., 21 Mo. App. 426.

636 LIABILITY IRRESPECTIVE OF FENCING LAWS.

is inadmissible.29! The word “reckless” applied to killing
implies no more than a want of that degree of care re-
quired by law of the defendant’s employees.%*? “Wilfully
and willingly killed” means that the killing was inten-
tional.393

A declaration charging negligence in not signalling, as
directed by statute, and in running at a high rate of speed,
as prohibited by the common law, was held bad for
duplicity.2°* So, where negligence in running the train and
also in failing to fence was charged.®° But both grounds
are traversed by filing the general issue.29° And in a
Missouri case it was held that as negligence in fact may con-
sist of a number of negligent acts preceding the injury and
leading up and contributing to it, the plaintiff, in stating
a cause of action therefor, is not obliged to select one of these
acts and rely upon it. Accordingly, a petition which alleged
in one count a number of negligent acts on the part of the
company conducing to the injury complained of was held to
state but a single cause of action.2°7 A claim for stock killed
after suit commenced cannot be united with a claim for
stock killed before the commencement of the suit.89°

The petition, on motion, should be required to state the
day, hour and place of injury and the course and character
of the train with as much definiteness as possible.**?

A conflict between the values given in the sworn state-
ment and the petition, in an action for double damages, does

™ Choate v. Southern R. Co. (Ala.), 24 South. Rep. 373.

* Louisville & N. R. Co. v. Barker, 96 Ala. 435.

™ Chic., St. L. & P. R. Co. v. Nash, 1 Ind. App. 298; Same v. Same
(Ind.), 24 N. E. Rep. 884.

Louisville, E. & St. L. R. Co. v. Hill, 29 Ill. App. 582.

* Harris v. Wabash R. Co., 51 Mo. App. 125.

“* Chic., B. & Q. R. Co. v. Magee, 60 Ill. 520.

“ Hill v. Mo. Pac. R. Co., 121 Mo. 477, affirming 49 Mo. App. 520.

** Toledo, P. & W. R. Co. v. Arnold, 49 Ill. 178.

™ Little Rock & F. S. R. Co. v. Smith (Ark.), 50 S. W. Rep. 502.

NOTICE ; ACTION ; PARTIES; PLEADING. 637

not, in the absence of proof of fraud, prevent the recovery of
double damages.*°° Although the complaint alleges the
value of the animal to be at the jurisdictional amount, the
cause should be at once dismissed where the jury find the
value to be less than that amount.*

In an action against two companies, their relation to one
another need not be averred.*?

The fact that the plaintiff negligently permitted his stock
to stray, whereby the train or engine was damaged, cannot
be set up by way of counter-claim.*°?

the law of Evidence as it has been applied in the numberless
actions that have been brought against railroad companies
to recover damages for injuries to animals. There are some
principles of importance, however, that, being peculiar to
cases of this kind, require some statement and comment in
this place.*%*

It has been held in nearly all the cases that it is incumbent
on the plaintiff, in a common-law action against the company
for negligence, to prove such negligence: the mere fact of the
injury to the animal is not prima facie evidence of negli-
gence.* In many of the cases cited in the note the decision

9 Valleau v. Chic., M. & St. P. R. Co., 73 Ia. 723.

“ T onisville, N. A. & C. R. Co. v. Johnson, 67 Ind. 546.

“2 Indianap., C. & L. R. Co. v. Warner, 35 Ind. 515.

8 Terre Haute & I. R. Co. v. Pierce, 95 Ind. 496; Lake Shore & M. S.
R. Co. v. Van Auken, 1 Ind. App. 492; Simkins v. Columbia & G. R. Co.,
20 S. C. 258.

And see Louisv. & N. R. Co. v. Simmons, 85 Ky. 151; Centr. Branch
Un. Pac. R. Co. v. Walters, 24 Kan. 504; Jenkins v. New Orleans, O.
& G. W.R. Co., 15 La. Ann. 118.

See, in general, on the subject of Pleading, 1 Rap. & Mack Dig. Ry.
Law 246-278.

For a large collection of cases on the law of evidence as applied to
suits of this kind against railway corporations, the reader is referred to
1 Rap. & Mack Dig. Ry. Law 278-319.

“5 Coe Denver & R. G. R. Co. v. Henderson, 10 Colo. 1; Ga. R. & Bkg.

638 LIABILITY IRRESPECTIVE OF FENCING LAWS.

rests partly on the ground that the company was shown
not to be in fault so far as the presence of the animals on
the track was concerned, there being either a lawful fence
or none being required. By statute now in many of the
States, the fact of injury or death is made prima facie evidence
of negligence, sometimes only in cases where the company
has failed to fence properly, sometimes irrespective of any
such obligation.*°® Such statutes are in force in Alabama,!%™

Co. v. Anderson, 33 Ga. 110; Chic. & N. R. Co. v. Barrie, 55 Ill. 226;
Jeffersonville, M. & I. R. Co. v. Huber, 42 Ind. 173; Eddy v. Lafayette,
49 Fed. Rep. 798; Comstock v. Des Moines V. R. Co., 32 Ia. 376;
Schneir v. Chic. R. I. & P. R. Co., 40 id. 337; Day v. New Orleans
Pac. R. Co., 36 La. Ann. 244; Knight v. New Orleans, O. & G. W. R.
Co., 15 id. 105; Locke v. St. Paul & P. R. Co., 15 Minn. 350; Mobile &
O. R. Co. v. Hudson, 50 Miss. 572; Wasson v. McCook, 70 Mo. App.
393; Warren v. Chic., M. & St. P. R. Co., 59 id. 367; Brown v. Hannibal
& St. J. R. Co., 33 Mo. 309; Burlington & M. R. R. Co. v. Wendt, 12 Neb.
76; Walsh v. Virginia & T. R. Co., 8 Nev. 110; Atchison, T. & S. F. R.
Co. v. Walton, 3 N. M. 530; Terry v. N. Y. Cent. R. Co., 22 Barb. (N.
Y.) 574; Scott v. Wilm. & R. R. Co., 4 Jones L. (N. C.) 432; Pittsb.,
Cine. & St. L. R. Co. v. McMillan, 37 O. St. 554; Same v. Heiskell, 38 id.
666; Bettye v. Houston & C. T. R. Co., 26 Tex. 604; Lyndsay v. Conn. &
P. R. R. Co., 27 Vt. 643; Orange, A. & M. R. Co. v. Miles, 76 Va. 773;
Talbott v. W. Va., C. & P. R. Co., 42 W. Va. 560: McMillan v. Ma. & N.
R. Co., 4 Ma. 220.

See, as to presumptions and burden of proof in general, 1 Rap. &
Mack Dig. Ry. Law 301, 307, 311.

™ See 11 Am. & Eng. R. R. Cas. N. S. 849, 851 n.

“"E. Tenn., V. & G. R. Co. v. Bayliss, 74 Ala. 150; Ala. Gr. South. R.
Co. v. McAlpine, 80 id. 73; South & North Ala. R. Co. v. Bees, 82 id.
340; Nashville, C. & St. L. R. Co. v. Hembree, 85 id. 481; Louisville &
N. R. Co. v. Kelsey, 89 id. 287; Savannah & W. R. Co. v. Jarvis, 95 id.
149; Chattanooga S. R. Co. v. Daniel (Ala.), 25 South. Rep. 197.

In Montgomery & E. R. Co. v. Perryman, 91 Ala. 413, the rule was held
not to apply to a case where the statutory signals could not have been
given, as where a standing freight-car broke loose and ran over a cow.
But this decision was overruled in Birmingham Mineral R. Co. v. Harris,
98 id. 326.

That the plaintiff is not required to prove affirmatively that the train

was run by the defendant, see South & North Ala, R. Co. v. Pilgreen, 62
id. 305.

EVIDENCE. 639

. 408 + ¢ :
Arkansas, California,#°® Colorado,*!® Florida,#!! Geor-
gia,*!? Indiana,*** lowa,*!* Kentucky,*!® Maryland,#1® Mis-
sissippi,*"" Missouri,#4® New Hampshire,“!® North Caro-

“* Little Rock & Ft. S. R. Co. v. Finley, 37 Ark. 562; Same v. Henson,
39 id. 413; Same v. Jones, 41 id. 157; St. Louis, I. M. & S. R. Co. v.
Taylor, 57 id. 136; St. Louis & S. F. R. Co. v. Thomason, 59 id. 140.

The statute makes the fact of “killing” prima facie evidence that it was
done by the train, and this does not extend to other forms of injury. But
when it is proved that the injury was done by the train, then the same
presumption of negligence arises against the company as in cases of kill-
ing: St. Louis, I. M. & S. R. Co. v. Hagan, 42 id. 122.

In St. Louis & S. F. R. Co. v. Sageley, 56 id. 549, it was held that, where
a dead animal is found near a railroad track, there is no legal presump-
tion that it was killed at all or, if killed, that it was killed on the track
or by a train.

*° McCoy v. Cal. Pac. R. Co., 4o Cal. 532; Orcutt v. Pac. Coast R. Co.,
85 id. 2or.

*° Atchison, T. & S. F. R. Co. v. Cahill, 11 Colo. App. 245; Denver &
R. G. R. Co. v. Henderson, 10 Colo. 1.

But the burden is on the plaintiff where it is shown that the road was
properly fenced or that no fence was required: Ibid.

™ Jacksonville, T. & K. W. R. Co. v. Wellman, 26 Fla. 344; Same v.
Garrison, 30 id. 567.

Otherwise where the road is properly fenced: Savannah, F. & W. R. Co.
v. Rice, 23 id. 575.

Ga. R. & Bkg. Co. v. Monroe, 49 Ga. 373; Same v. Bird, 76 id. 13;
Same v. Wilhoit, 78 id. 714.

“8 Where the road is not fenced: Indianapolis & C. R. Co. v. Means,
14 Ind. 30.

“4 Brentner v. Chic., M. & St. P. R. Co., 68 Ia. 530.

“5 Ky. Cent. R. Co. v. Lebus, 14 Bush (Ky.) 518; Louisville & N. R.Co.
v. Simmons, 85 Ky. 151; Grundy v. Louisville & N. R. Co. (Ky.), 2 S. W.
Rep. 899.

“8 Keech v. Baltimore & W. R. Co., 17 Md. 32; Northern Central
R. Co. v. Ward, 63 id. 362.

“T Vicksburg & M. R. Co. v. Hamilton, 62 Miss. 503; New Orleans &
N. R. Co. v. Bourgeois, 66 id. 3; Louisville, N. O. & T. R. Co. v. Smith,
67 id. 15; Kansas City, M. & B. R. Co. v. Doggett, Ibid. 250; Roberds
v. Mobile & O. R. Co., 74 id. 334.

“8 Where the company failed to fence: Wymore v. Hannibal & St. J.
R. Co., 79 Mo. 247; Turner v. St. Louis & S. F. R. Co., 76 id. 261.

“° Where the owner is not at fault: Smith v. Eastern R. Co., 35 N. H.
357; White v. Concord R. Co., 30 id. 188.

640 LIABILITY IRRESPECTIVE OF FENCING LAWS.

lina,#2° South Dakota,#2 and Tennessee.*®? In all these
States the presumption is, of course, one that may be over-
come by evidence on behalf of the defendant. In Maryland
the statute was held not applicable where the team killed was
at the time under the control of a driver, but only where the
animals were straying or not under control when they were
injured.428 But in North Carolina the statutory presump-
tion of negligence was held not to be rebutted where the
animal was hitched to a wagon, but to apply as well where it
was under control as where it was running at large.*?*

The South Carolina cases go further than the above cases
and hold that, quite apart from any statute, where a forcible
injury by the company is shown, the burden of disproving
negligence is on the defendant.*#°> This rule was followed
also in Wisconsin, though it was held not to apply where
there was no evidence that the cattle killed were lawfully on
the highway, as they were presumed to be unlawfully there.4?6
And in South Carolina the rule has been held not to apply
where the animal killed is a dog.*?"

“° Randall v. Richmond & D. R. Co., 107 N. C. 748.

Otherwise, where the action is not brought within six months from the
time of killing: Jones v. No. Car. R. Co., 67 id. 122.

™ Bates v. Fremont, E. & M. V. R. Co., 4S. D. 394; Keilbach v. Chic.,
M. & St. P. R. Co. (S. D.), 78 N. W. Rep. 951.

The Dakota statute was held to create no new liability but simply to
change the order of proof: Huber v. Chic., M. & St. P. R. Co., 6 Dak.
302.

* Horne v. Memphis & O. R. Co., 1 Coldw. (Tenn.) 72.

* Annapolis & B. S. L. R. Co. v. Pumphrey, 72 Md. 82.

Randall v. Richmond & D.-R. Co., 104 N. C. 410, 107 id. 748. Shep-
herd, J., dissenting, considered that the words “‘cattle and live stock” were
used exclusively as applicable to animals straying on the road-bed and
not under the direction and control of the owner.

“ Danner v. So. Car. R. Co., 4 Rich. L. (S. C.) 329; Murray v. Same,
10 id. 227; Fuller v. Pt. Royal & A. R. Co., 24 S. C. 132; Walker v.
Columbia & G. R. Co., 25 id. 141; Joyner v. So. Car. R. Co., 26 id. 49;
Mack v. South Bound R. Co., 52 id. 323.

“* Galpin v. Chic. & N. R. Co., 19 Wis. 604.

“T Wilson v. Wil. & M. R. Co., 10 Rich. L. (S. C.) 52. And see Jemison

EVIDENCE. GAF¥

What evidence is sufficient to show that the animal was
killed by a train depends altogether upon the circumstances
in each case, and no general rules. can be Jaid down. The:
‘presence of the dead animal on or near the track, marks of
blood, hairs, signs of dragging, etc., are all matters to be
considered in deciding the question, it being one that may
be settled by purely circumstantial evidence.**8 A statute
is constitutional which prohibits the burning, mutilating,

hauling off, or burying by a railroad company of stock killed
by trains.4#9

Where the evidence of negligence or contributory negli-
gence is doubtful, it should be left in the hands of the jury.**”
Evidence is admissible as to the manner in which the engine

v. Southwestern R. Co., 75 Ga. 444. But see Jones v. Bond, 40 Fed. Rep.
281, where the presumption under the Mississippi statute was applied to
the case of a dog.

#8 As illustrations of this, see St. Louis, I. M. & S. R. Co. v. Parks, 60
Ark. 187; Little Rock & F. S. R. Co. v. Wilson (Ark.), 50 S. W. Rep.
995; Van Slyke v. Chic., St. P. & K. C. R. Co., 80 Ta. 620; Daugherty v.
Chic., M. & St. P. R. Co., 87 id. 276; King v. Chic, R. 1. & P. R. Co.,
88 id. 704; Jacksonville, T. & K. W. R. Co. v. Garrison, 30 Fla. 557; Louis--
ville & N. R. Co. v. Lancaster (Ala.), 25 South. Rep. 733; Union Pac. R-
Co. v. Bullis, 6 Colo. App. 64; Ohio & M. R. Co. v. Wrape, 4 Ind. App-
108; Louisville, N. A. & C. R. Co. a. Hixon, ror Ind. 337; Mayfield v.
St. Louis & S. F. R. Co., 91 Mo. 296; Blewett v. Wyandotte, K. C. & N. R.
Co., 72 id. 583; Perkins v. St. Louis, Il. M. & S. R. Co., 103 id. 52; Gilbert
v. Mo. Pac. R. Co., 23 Mo. App. 65; Waughan v. Kansas City, S. & M. R.
Co., 34 id. 141; Jackson v. St. Louis, I. M. & S. R. Co., 36 id. 170; Inter-
nat. & G. N. R. Co. v. Hughes, 81 Tex. 184; San Antonio & A. P. R. Co.
v. Leal, 4 Tex. App. Civ. Cas. 213; Mo. Pac. R. Co. v. Earle (Tex. App.),.
14S. W. Rep. 1068; Gulf, C. & S. F. R. Co. v. Washington, 49 Fed. Rep.
347.

See, also, Rap. & Mack Dig. Ry. Law 294.

“© Bannon wv. State, 49 Ark. 167.

“0 Kansas City, M. & B. R. Co. v. Watson, 91 Ala. 483; Same v. Dog-
gett, 67 Miss. 250; Kent v. Louisville, N. O. & T. R. Co., Ibid. 608; Chic.
& A. R. Co. v. Hill, 24 Ill. App. 619; Mo. Pac. R. Co. v. Vandeventer,
28 Neb. 112; Sleeper v. Worcester & N. R. Co., 58 N. H. 520; Atlantic
Coast Elec. R. Co. v. Rennard (N. J.), 42 Atl. Rep. 1041; Sheldon 7
Chic., M. & St. P. R. Co. (S. D.), 62 N. W. Rep. 955.

And see 1 Rap. & Mack Dig. Ry. Law 321-327.

4]

642 LIABILITY IRRESPECTIVE OF FENCING LAWS.

that caused the injury was operated; **! the direction in which
it was running; *®* the speed at which it was going; *** the
distance on the track that was visible.**+ Failure to give
signals is prima facie evidence of negligence.**° But the law
does not presume the injury to have been caused by the fail-
ure to signal.4#° And evidence as to whether the stock
would probably have been frightened off the track by sig-
nals has been held immaterial where there was a statutory
duty to signal.*#* Evidence that after the accident sign-posts
had been put up and whistles blown at the crossing is in-
admissible.#8® So, of evidence that the company after the
accident took up planks at the crossing and replaced them
by new ones.*8® An opinion of an engineer, as an expert,
that a whistle was blown unnecessarily is inadmissible.**

Imperfect light and fog at the time of the accident are
circumstances that the jury may take into consideration in
determining negligence.*** The escape of electricity from a
street railway company’s plant to the injury of a horse being
driven along the street is presumptive evidence of negli-
gence."

Where it is sought to lessen damages by showing that
some of the injured cattle would not have died but for want

™ Briggs uv. St. Louis & S. F. R. Co., 111 Mo. 168.

* Ohio & M. R. Co. v. Wrape, 4 Ind. App. 108.

““ Toledo, P. & W. R. Co. v. Deacon, 63 Ill. 91; Chic., B. & Q. R. Co.
v. Haggerty, 67 id. 113. See Voak v. North. Cent. R. Co., 75 N. Y. 320.

* Sheldon v. Chic., M. & St. P. R. Co. (S. D.), 62 N. W. Rep. 955;
Chic. & A. R. Co. v. Legg, 32 Ill. App. 218; Gulf, C. & S. F. R. Co. uv.
Washington, 49 Fed. Rep. 347.

“© Persinger v. Wabash, St. L. & P. R. Co., 82 Mo. 196. And see § 132,
supra.

*° Chic. & A. R. Co. v. Hanley, 26 Ill. App. 351.

“" Kendrick v. Chic. & A. R. Co., 81 Mo. 521.

“ Louisville & N. R. Co. 7. Bowen (Ky.), 39 S. W. Rep. 31.

“ Payne v. Troy & B. R. Co., 9 Hun (N. Y.) 526. And see Hudson wv.
Chic. & N. R. Co., 59 Ia. 581.

“Chic. & E. R. Co. v. Cummings (Ind. App.), 53 N. E. Rep. 1oa6.’

“St. Louis, I. M. & S. R. Co. v. Vincent, 36 Ark. 451.

“Trenton Pass. R. Co. v. Cooper, 60 N. J. L. 210.

EVIDENCE. 643

of proper care, it devolves upon the company to show such
want of proper care.***

It has been held in a Georgia case that where the company
had the fireman in court, no inference was to be drawn
against it because it did not call him, as the plaintiff might
have done so;*4* but, ordinarily, the fireman should be called
to rebut the presumption of negligence.*4° The report of an
employee of the company as to the killing, if admissible as
evidence for the company, is not so unless it was his duty to
make such report and it was made contemporaneously; nor
should oral testimony be stricken out on the ground that the
report is better evidence.*#®

Where the statute provided that, in case of injury, the body
of the animal should belong to the company, unless the owner
took the same in part payment of damages, the admission of
the company’s agent that he had ordered the animal to be
killed and the beef to be sold for the company’s benefit was
held to be prima facte an admission of negligence.**?

Evidence that other animals had been killed at the same
crossing is ordinarily inadmissible.*#* But evidence to show
that other horses had been caught in the same way in the
crossing is admissible on the question of notice.**

The fact that the company had not exercised proper care
at other times and places is not admissible in evidence.**?

“ Gulf, C. & S. F. R. Co. v. Hudson, 77 Tex. 404.

“4 Davis uv. Cent. R. Co., 75 Ga. 645.

“> B Tenn., V. & G. R. Co. v. Culler, 75 Ga. 704.

“© Jacksonville, T. & K. W. R. Co. v. Wellman, 26 Fla. 344.

In Ohio & M. R. Co. v. Atteberry, 43 Ill. App. 80, the report of a
section foreman to the company and his opinion as to the cause of the
injury were held not to be competent testimony.

“" McCauley v. Mont. Cent. R. Co., 11 Mont. 483.

“* Tudson v. Chic. & N. R. Co., 59 Ia. 581: Croddy v. Chic., Rol. &
P. R. Co., 91 id. 598; North Chic. St. R. Co. w. Hudson, 44 Ill. App. 60;
Ga. R. & Bkg. Co. v. Walker, 87 Ga. 204.

“© Toledo, St. L. & K. C. R. Co. v. Milligan, 2 Ind. App. 578.

“© Miss. Cent. R. Co. v. Miller, 40 Miss. 45.

So, in an action for injuries caused by frightening a horse, siienee

644 LIABILITY IRRESPECTIVE OF FENCING LAWS.

Evidence of the liability of a horse to be frightened by
moving trains is admissible on the question of contrib-
utory negligence.#*! Where a horse was frightened by an
electric shock, the words spoken by the driver in endeavor-
ing to control it were held admissible in evidence; also, testi-
mony of his previous experience in a similar case, to account
for his words and conduct.*** Evidence of the general repu-
tation of a mare among horsemen and turfmen, with reference
to her being rattle-headed or disposed to break when racing,
was held not admissible.*5* Evidence of the conduct of
horses in general is admissible to show how a particular horse
would be likely to act.*5*

Witnesses who are familiar with the kind of animals sued
for are competent to testify as to their value, without having
ever seen them,*® and without being experts.*°® But state-
ments made as to the pedigree of a heifer killed, as that she
was a thoroughbred, are not competent evidence where it
does not appear that the party making the statements was
dead or beyond the process of the court, and, on the same
principle, a paper purporting to give such pedigree is not
admissible.*>*

In order to recover, the plaintiff must give some evidence

that the motorman had been careful in meeting other horses under similar
circumstances is inadmissible: Sunderland v. Pioneer Fireproof Constr.
Co., 78 Ill. App. 102.

™ Folsom v. Concord & M. R. Co. (N. H.), 38 Atl. Rep. 2009.

™ Trenton Pass. R. Co. v. Cooper, 60 N. J. L. 219.

* Cincinnati, H. & I. R. Co. v. Jones, 111 Ind. 259.

“ Folsom v. Concord & M. R. Co., supra.

“Smith v. Indianapolis & St. L. R. Co., 80 Ind. 233; Atchison, T. &
S. F. R. Co. v. Gabbert, 34 Kan. 132.

Information obtained by the plaintiff from persons in another State
acquainted with the class of the animal killed, is admissible: Gulf, C. &
S. F. R. Co. v. Wedel (Tex. Civ. App.), 42 S. W. Rep. 1030.

™ Ala. G. S. R. Co. v. Moody, g2 Ala. 279.

As to the opinions of witnesses and experts, in general, see 1 Rap. &
Mack Dig. Ry. Law 283, etc.

“" Hamilton v. Wabash, St. L. & P. R. Co., 21 Mo. App. 152.

EVIDENCE. 645

of the value of the animal.4°§& Evidence of the excellence
of its sires is admissible.*°? And the defendant may show
its cost to the plaintiff when he purchased it a short time
before.*® So, where the plaintiff testified that the animal
was worth seventy-five dollars, it was held error to refuse to
permit the defendant to introduce in evidence to contradict
him an assessment list of his property, signed and verified
by him, in which he returned the animal for taxation as
worth five dollars.4®! The appraisement secured by the
owner is evidence of the true value; but this may be explained
or rebutted.*6? And in an action by an administratrix
against the company it was held that her appraisement was
not evidence of the value of the horses killed, as against the
estate.*8 Proof of actual sales of similar animals is admis-
sible to show the value of those killed.***

137, Damages.— Where an animal has been killed, its mar-
ket value is recoverable by the plaintiff, deducting the value
of the carcass, if that has been used by him.*® Where there
was no evidence of the value of the carcass, it was held that
the price received for the hide should be deducted.*°* The
owner is entitled to a reasonable time in which to dispose
of the dead body to the best advantage: what is such reason-
able time is a question for the jury to decide.*** Where,

“© Southern R. Co. v. Varn, 102 Ga. 764: St. Louis, A. & T. R. Co. v.
Pickens, 4 Tex. App. (Civ. Cas.) 54.

“? Ohio & M. R. Co. v. Stribling, 38 Ill. App. 17; Richmond & D. R.
Co. v. Chandler (Miss.), 13 South. Rep. 267.

“ Tacksonville, T. & K. W. R. Co. v. Jones, 34 Fla. 286.

*8 Fordyce v. Hardin, 54 Ark. 554.

“2B. Tenn., V. & G. R. Go. v. Bayliss, 74 Ala. 150.

*@ Morrison v. Burlington, C. R. & N. R. Co., 84 Ia. 663.

4 Sinclair v. Mo., K. & T. R. Co., 70 Mo. App. 588.

“® Ga. Pac. R. Co. v. Fullerton, 79 Ala. 298; Boing v. Raleigh & G.
R. Co., 91 N. C. 199; Roberts v. Richmond & D. R. Co., 88 id, 560;
Case v. St. Louis & S. F. R. Co., 75 Mo. 668.

“4 Godwin v. Wilmington & W. R. Co., 104 N. C. 146.

*! Toledo, P. & W. R. Co. v. Parker, 49 Il. 385; Til. Cent. R. Co. v.

646 LIABILITY IRRESPECTIVE OF FENCING LAWS.

however, he does not discover the carcass until it is swollen,
he need not use due diligence to dispose of it in order to re-
cover the full value.48® And in some jurisdictions it has been
held that the owner is not bound to make use of the carcass
and that the damages are not to be diminished by its value,
unless he derives a benefit therefrom or elects to appropriate
it to himself.*®®

Where there is no market value at the particular place
where the animal is killed, the value at the nearest market is
ordinarily the measure of damages.*7° Where the animal is
badly wounded and the owner kills it to put it out of suffer-
ing, he may recover its full value.*7! Where it escaped from
a car and was killed by another train, the cause of action
being negligence outside of the contract of transportation, it
was held that the plaintiff might recover the full value and
was not limited to the maximum amount stated in the con-
tract, though the contract of affreightment was admissible as
evidence on the question of value.”

In a leading text-book on this subject it is said that, “there
is a divergence of view as to the right to interest on damages

Finnigan, 21 id. 646. As to the constitutionality of a statute prohibiting
the mutilation of a carcass by the company, see Bannon wv. State, 49 Ark.
167, cited in § 136, supra.

“ Rockford, R. I. & St. L. R. Co. v. Lynch, 67 Ill. r4o.

““ Indianapolis, P. & C. R. Co. v. Mustard, 34 Ind. 50; Ohio & Miss.
R. Co. v. Hays, 35 id. 173; Burger v. St. Louis, K. & N. R. Co., 52 Mo.
App. 119 (reversed in 123 Mo. 679 on another ground).

The contrary doctrine is said, in Ga. Pac. R. Co. v. Fullerton, supra,
“to be better sustained by reason and authority” and the Indiana cases
are said to be based upon a statute expressly declaring the rule therein
laid down. And see the Illinois and North Carolina cases cited supra.

“Tex. & Pac. R. Co. v. McDowell, 7 Tex. Civ. App. 341; St. Louis.
A. & T. R. Co. v Pickens, 4 Tex. App. (Civ. Cas.) 54.

Where there is no evidence to the contrary, the court will not set aside
the verdict on a mere supposition that the basis of estimation was not
the market value: Jacksonville, T. & K. W. R. Co. v. Wellman, 26 Fla.
344.

Atchison, T. & S. F. R. Co. v. Ireland, 19 Kan. 405.

“ Louisville & N. R. Co. v. Kelsey, 89 Ala. 287.

DAMAGES. 647

resulting from the killing of animals by the negligence of rail-
road companies. Under the statutes of Missouri, Colorado,
Georgia, Kansas and Illinois, interest is not allowed. It is
otherwise in Minnesota, Arkansas and Alabama from the
time of the injury, and in Wisconsin from the commence-
ment of the action.” ** But in Georgia the jury may add
to the value of the animals a sum equal to the interest on
such value, finding and returning it, however, as damages,
not as interest.47* In Ohio, also, interest is allowed from the
date of the accident,*™® and in Utah from the time of insti-
tuting the suit.*7® In Iowa it has been held that where the
statute makes the company liable for double the damages the
owner of the animal has sustained, interest on the value of
it is not recoverable.*77 And in Kansas and Texas it has
been held that no interest can be recovered in a statutory
action unless the statute provides for it.478 But in the later
Texas cases this rule is not followed and interest is allowed.4”°

The constitutionality of statutes giving double damages for
stock killed through the negligence of railroad companies has
been generally sustained :4°° though there are decisions that
deny it.48! A statute absolutely allowing double damages

*® 1 Suth. Dams., 2d ed., § 355.

See Meyer v. Atlantic & P. R. Co., 64 Mo. 542; Toledo, P. & W. R.
Co. v. Johnston, 74 Ill. 83; Varco v. Chic., M. & St. P. R. Co., 30 Minn.
18; St. Louis, I. M. & S. R. Co. v. Biggs, 50 Ark. 169; Ala. G. S. R. Co.
v. McAlpine, 75 Ala. 113; Ga. Pac. R. Co. v. Fullerton, 79 id. 298.

See also the New York and Michigan cases cited in § 144, infra.

“4 Western & A. R. Co. v. Brown, 102 Ga. 13.

® Balt. & O. R. Co. v. Schultz, 43 O. St. 270.

“® Woodland v. Un. Pac. R. Co. (Utah), 26 Pac. Rep. 298.

47 Brentner v. Chic., M. & St. P. R. Co., 68 Ia. 530.

® Atchison, T. & S. F. R. Co. v. Gabbert, 34 Kan. 132; Houston & T.
C. R. Co. v. Muldrow, 54 Tex. 233.

*" Houston & T. C. R. Co. v. Jones (Tex. Civ. App.), 40 S. W. Rep.
745; Gulf, C. & S. F. R. Co. v. Wedel (Tex. Civ. App.), 42 id. 1030; Tex.
& Pac. R. Co. v. Scrivener (Tex. Civ. App.), 49 id. 649.

*° See 1 Rap. & Mack Dig. Ry. Law 93.

“1 See Atchison & N. R. Co. v. Baty, 6 Neb. 37; Denver & R. G. R. €o.
v. Outcalt, 2 Colo. App. 395.

6418 LIABILITY IRRESPECTIVE OF FENCING LAWS.

for failure to give notice has been held unconstitutional as
it does not consider the question of negligence nor of the
owner’s knowledge.**? Most of these statutes make the lia-
bility of the company dependent on its failure to fence the
track and will, accordingly, be considered in the next chap-
ter.#88 A statute providing that the company shall be liable
for twice the value of the animal killed by it when it fails to
record a description of the animal and to mark its hide as
required therein, was held to be penal in its nature: an action
thereunder is subject to one year’s limitation.48* The owner
cannot recover more than twice the amount of damages
-actually named by him in his statutory notice and affidavit.*%
It has been held not to be absolutely settled in practice
whether double damages should be assessed by the jury or
only single ones to be doubled by the court.**®

Where the animal is injured the measure of damages is the
‘difference in its value before and after the injury, with com-
pensation for the care and attention required in its treatment,
and for the loss of its use during the continuance of the in-
jury.*87 The qualities of the animal are as much matters of
value as its strength or action and, if they are impaired by
the defendant’s wrongful conduct, the owner is entitled to

“? Jolliffe 7. Brown, 14 Wash. 155.

That a statute making a company liable for a loss not due to its negli-
‘gence may not be unconstitutional, see Louisville & N. R. Co. v. Belcher,
‘89 Ky. 193.

See § 144, infra.

“* Atchison, T. & S. F. R. Co. v. Tanner, 19 Colo. 559.

*““ Manwell v. Burlington, C. R. & N. R. Co., 80 Ia. 662.

““ Memphis & L. R. Co. v. Carlley, 39 Ark. 246, citing Sedgwick on
Meas. of Dams. But see Wood v. St. Louis, K. C. & N. R. Co., 58 Mo.
109, cited in § 144, infra.

“St. Louis, I. M. & S. R. Co. v. Biggs, 50 Ark. 169; Brown v. Wil-
mington City R. Co. (Del.), 4o Atl. Rep. 936; Cent. R. & Bkg. Co. v-
Warren, 84 Ga. 329; Atlanta & W. P. R. Co. v. Hudson, 62 id. 679;
Gillett v. Western R. Corp., 8 Allen (Mass.) 560; Keyes v. Minneapolis
& St. L. R. Co., 36 Minn. 290; Pittsb., C., C. & St. L. R. Co. v. Kelly,
a2 QO, Cire. Ct. 341; Gulf, C. & S. F. R. Co. uv. Keith, 74 Tex. 287.

DAMAGES, 649,

compensation.*8§ It is the owner’s duty to use reasonable
efforts to prevent loss and reduce the damage as much as
possible, and where the stock are available after the injury,
he cannot abandon them and then claim their full value.*®®
He can recover only to the extent of the injury, and need not
surrender the injured animal to the company.*®® Compen-
sation for the care of an animal between the time of its injury
and death cannot be recovered in addition to the value of the
animal.49?

Damages for the non-thriving of cattle owing to the con-
struction of a railroad through the pasture in which they are
feeding are not too remote to be recovered.*9? But where
no recovery is sought for lack of business, the fact that the
owner is a dairyman cannot be considered in assessing dam-
ages for killing cows.*°* Nor can the plaintiff recover for a
severe nervous shock and mental pain and anxiety caused by
her horse’s being frightened by the company’s unlawful act
and running away.*94

Exemplary damages are allowed, if the animal was injured
ot killed through gross negligence or wilfulness.***

Statutes allowing a reasonable attorney’s fee to be re-
covered in an action brought against a railroad company for
an injury to or the death of an animal have been held in some
jurisdictions to be constitutional,*°* and, in others, to be un-

“ English v. Mo. Pac. R. Co., 73 Mo. App. 232.

“° Harrison v. Mo. Pac. R. Co., 88 Mo. 625.

“© Jackson v. St. Louis, I. M. & S. R. Co., 74 Mo. 526.

*™ Cully v. Louisv. & N. R. Co. (Ky.), 41 S. W. Rep. 21.

“2 Balt. & O. R. Co. v. Thompson, 10 Md. 76, cited in § 131, supra.

*8 Parrin v. Mont. Cent. R. Co. (Mont.), 56 Pac. Rep. 315.

“4 Kalen v. Terre Haute & J. R. Co., 18 Ind. App. 202.

“© Vicksburg & J. R. Co. v. Patton, 31 Miss. 156; Indianapolis, P. &
C. R. Co. v. Mustard, 34 Ind. 50.

Peoria, D. & E. R. Co. v. Duggan, 109 Ill. 537; Central Branch Un.
Pac. R. Co. v. Nichols, 24 Kan. 242; Kan. Pac. R. Co. v. Mower, 16 id.
573; Jacksonville, T. & K. W. R. Co. v. Prior, 34 Fla. 271; Briggs v.
St. Louis & S. F. R. Co., 111 Mo. 168; Perkins v. St. Louis, I. M. & S.
R. Co., 103 id. 52; Ill. Cent. R. Co. wv. Crider, 91 Tenn. 489. And see 49

650- LIABILITY IRRESPECTIVE OF FENCING LAWS.

constitutional as an attempt to grant special advantages to
one class of litigants at the expense of another.4®* And a
statute providing for a board to assess damages in stock cases.
and for taxing an attorney’s fee, if either party refuses to
abide by the assessment, was held unconstitutional, as the
legislature had no right to substitute the board for the court
without consent nor to tax the fee as a penalty in such a
case.498 Attorney’s fees are not recoverable where the loss.
is chargeable to common-law negligence, but only in a statu-
tory action.*%°

Statutes making the company absolutely liable in dam-
ages without regard to negligence on its part are unconsti-
tutional.°° So, also, are statutes that order the value of the
animals to be fixed by appraisement or by an arbitrary
schedule without regard to the right of the parties to trial
by jury or to the actual value.5®! It is otherwise where the
appraisement is made only prima facie evidence of the value of
the animals.°°* A statute making the killing of cattle by a

Am. & Eng. R. R. Cas. 515 n, where the weight of authority is said to be
in favor of the constitutionality of such statutes.

“" South & North Ala. R. Co. v. Morris, 65 Ala. 193; Wilder v. Chic.
& W. M. R. Co., 70 Mich. 382; Lafferty v7. Same, 71 id. 35; Jolliffe v-
Brown, 14 Wash. 155.

* St.Louis, 1. M. & S. R. Co. v. Williams, 49 Ark. qo2.

Chic., M. & St. P. R. Co. v. Phillips, 14 Ill. App. 265; Wabash, St.
L. & P. R. Co. wv. Neikirk, 13 id. 387.

And they are not recoverable when a judgment against the plaintiff
is reversed, unless he recovers at the subsequent trial: Rabbermann v.
Pierce, 77 Ill. App. 4os.

“ Denver & R. G. R. Co. v. Wheatley, 7 Colo. App. 284; Cateril v.
Un. Pac. R. Co., 2 Ida. 539; Bielenberg v. Mont. Un. R. Co., 8 Mont.
271; Oregon R. & N. Co. v. Smalley, 1 Wash. 206; Jensen v. Un. Pac.
R. Co., 6 Utah 253.

™ St. Louis, I. M. & S. R. Co. v. Williams, supra; Rio Grande Western:
R. Co, v. Vaughn, 3 Colo. App. 465; Denver & R. G. R. Co. v. Outcalt,
2 id. 305; Un. Pac. R. Co. v. Bullis, 6 id. 64; Denver & R. G. R. Co.
v. Thompson (Colo. App.), 54 Pac. Rep. 402; Graves v. North. Pac. R.
Co., 5 Mont. 536; Dacres v. Oregon R. & N. Co., 1 Wash. 525.

Til. Cent. R. Co. v. Crider, 91 Tenn. 480.

DAMAGES. 651

railroad company in certain counties a misdemeanor and sub-
jecting the president, superintendent and other officers of
such company to indictment if they refuse to pay or refer
to arbitration the claim for compensation, has been held un-
constitutional.°° A statute conferring jurisdiction upon
justices of the peace in actions against railroad companies
for the killing of stock, without regard to the value of the
animal killed or the amount claimed, is constitutional.°**

A release of the right of way and of damages sustained by
the work does not release damages for injuries to cattle
caused by the running of trains.5”

*® State v. Divine, 98 N. C. 778.
™ Steele v. Mo. Pac. R. Co., 84 Mo. 57.
* Cleveland, C., C. & I. R. Co. v. Crossley, 36 Ind. 370.

TITLE. VIE

INJURIES TO ANIMALS BY RAILWAYS.

CHAPTER II.

LIABILITY UNDER THE STATUTES REGULATING FENCES,

138. General liability for failure to 141. Cattle-guards.

fence. 142. Where fences are necessary;
139. To what owners the company station grounds.

is hable. 143. Action; parties; pleading.
140. Crossings; gates. 144. Evidence; damages.

138. General Liability for Failure to Fence.—At the common
law it is not necessary that railway companies should erect
and maintain fences in order to keep animals off their tracks,
though they are bound to use every reasonable care to pre-
vent such straying. In many of the States this rule still pre-
vails and the company, in the absence of negligence, is not
liable for injuring or killing an animal on an unfenced track."
In other States, though the company is not obliged by law
to fence, the absence of a fence where one might have been

*Buxton v. North Eastern R. Co., L. R. 3 Q. B. 549; Vandegrift v.
Delaware R. Co., 2 Houst. (Del.) 287: Campbell v. N. Y. & N. E. R.
Co., 50 Conn. 128.

*See Locke vw. St. Paul & Pac. R. Co., 15 Minn. 350; Day v. New
Orleans Pac. R. Co., 36 La. Ann. 244; Jones v. Western N. C. R. Co.,
95 N. C. 328; New York & Erie R. Co. v. Skinner, 19 Pa. St. 298; Pa. R.
Co. v. Riblet, 66 id. 164; Layne v. Ohio River R. Co., 35 W. Va. 438; Gulf,
Cc. & S. F. R. Co. uv. Ellidge, 49 Fed. Rep. 356; Chic., R. I. & P. R. Co.
z. Woodworth (Ind. Ty.), 35 S. W. Rep. 238.

652

GENERAL LIABILITY FOR FAILURE TO FENCE. 653

erected is regarded as negligence.* But in a Washington case
it was held that where a statute made the company liable ex-
cept where there was a fence and there was no statute making
it the company’s duty to have a fence, the statute was uncon-
stitutional as exacting a penalty from one guilty of no fault.t

Where railroad companies are required by statute to fence
their tracks, one of the principal objects in view appears to
have been the protection of passengers and employees travel-
ling on the trains.®

The statute applies, however, to freight trains as well as to
passenger trains.® So far as intruders on the track are con-
cerned, fences are required for the protection of animals, not
of reasonable beings.?. And the failure to fence does not
make the company liable for injuries caused by animals pass-
ing from the track to adjacent fields; nor for the death of
stock caused by falling down an unfenced embankment on to

*See Edwards v. Hannibal & St. J. R. Co., 66 Mo. 567; Hindman v.
Oreg. R. & N. Co.. 17 Oreg. 614; New York, C. & St. L. R. Co. vw.
Zumbaugh, 11 Ind. App. 107; Welsh v. Chic., B. & Q. R. Co., 53 Ia. 632.

In Missouri the failure to fence in unenclosed land will not make the
company amenable unless the land is shown to be prairie land: Cary v.
St. Louis, K. C. & N. R. Co., 60 Mo. 209.

And in Oregon it has been held that a statute prescribing a fence which
shall be deemed sufficient makes fencing a duty and may make the lia-
bility absolute: Sullivan v. Oreg. R. & N. Co., 19 Oreg. 319.

In an Ohio case it was held that where the company fails to fence, it
takes the risk of animals running on the track and must use ordinary
care in such a case: Kerwhacker v. Cleveland, C. & C. R. Co., 3 O. St. 172.

“Oreg. R. & N. Co. v. Smalley, 1 Wash. 206.

*>See Toledo & W. R. Co. v. Fowler, 22 Ind. 316; New Albany & S. R.
Co. v. Maiden, 12 id. 10; Jeffersonville, M. & I. R. Co. v. Nichols, 30 id.
321: Mo. Pac. R. Co. v. Harrelson, 44 Kan. 253; Neversorry v. Duluth,
S. S. & A. R. Co. (Mich.), 73 N. W. Rep. 125; Dickson v. Omaha & St.
L. R. Co., 124 Mo. 140; Atchison, T. & S. F. R. Co. v. Reesman, 60 Fed.
Rep. 370.

Otherwise in England: Buxton v. North Eastern R. Co., L. R. 3 Q. B.
549.

* Indianapolis & C. R. Co. v. Snelling, 16 Ind. 435.

* Nolan v. N. Y., N. H. & H. R. Co., 53 Conn. 461.

* Clark v. Hannibal & St. J. R. Co., 36 Mo. 202; Cannon v. Louisville,
E. & St. L. C. R. Co., 34 Ill. App. 640.

654 LIABILITY UNDER THE STATUTES.

the track;® nor for injuries to animals falling into wells o
pits dug in the company’s right of way without their know]
edge or consent.!° And where the animal went on the track
caught its foot in a hole and broke its leg, the injury was con.
sidered too remote and the company was held not liable.”
But where an animal frightened by a train runs on an un-
fenced track and is injured, the failure to fence is the prox.
imate cause of the injury.??

It is impracticable here to consider all the statutes of the
various States on the subject of fences. Such matters wil!
be treated of only as are of more or less general importance.

The liability of the company for an injury resulting from
its failure to perform its statutory duty of fencing is one that
exists irrespective of further negligence on its own part
or contributory negligence on the part of the plaintiff?

° Sinard 7. Southern R. Co., 101 Tenn. 473.

* TH. Cent. R. Co, v. Carraher, 47 Ill. 333.

The statute was said to be “designed to protect the travelling commun-
ity from accidents occasioned by stock getting upon the road and also
to prevent damage to such stock. They were not required to fence their
right of way to prevent cattle from falling into wells, pits or morasses.”

See, also, Jones v. Western N. C. R. Co., 95 N. C. 328, where, however,
there was no statute in question.

“Nelson v. Chic., M. & St. P. R. Co., 30 Minn. 74.

* Maher v. Winona & St. P. R. Co., 31 Minn. or.

* McKinney v. Ohio & M. R. Co., 22 Ind. 99; Louisville, N. A. & C.
R. Co. v. Whitesell, 68 id. 297; Williams 7. New Albany & S. R. Co., «
id. 131; Lafayette & I. R. Co. v. Shriner, 6 id. 141; Chic. & E. R. Co. 7
Brannegan, 5 Ind. App. 540; Terre Haute & I. R. Co. v. Schaefer, Ibid.
86: Cary v. St. Louis, K. C. & N. R. Co., 60 Mo. 209; Miles v. Hannibal
& St. J. R. Co., 31 id. 407; Smith v. St. Louis, I. M. & S. R. Co.
g1 id. 58; Talbot v. Minneapolis, St. P. & S. S. M. R. Co., 82 Mich.
66; Central Branch Un. Pac. R. Co. v. Nichols, 24 Kan. 242; Becker
v. New York, L. E. & W. R. Co., 10 N. Y. Suppt. 413; Walsh v,
Virginia & T. R. Co., 8 Nev. 110; Cine, N. O. & T. P. R. Co. 2
Stonecipher, 95 Tenn. 311; Gulf, C. & S. F. R. Co. v. Keith, 74 Tex. 287:
Same v. Hudson, 77 id. 494; Same v. Cash, 8 Tex. Civ. App. 569:
Norfolk & W. R. Co. v. Johnson, or Va. 661; Jolliffe v. Brown, 14 Wash
155; McCall v. Chamberlain, 13 Wis. 637; Heller v. Abbot, 79 id. 409

See, also, as to contributory negligence, the cases cited in § 134, supra

GENERAL LIABILITY FOR FAILURE TO FENCE. 655

Where a fence is unnecessary or where a sufficient one has
been erected, negligence must, of course, be shown.!* The
absolute liability imposed by statute applies only where the
loss results either wholly or partly from the failure to fence:
and where the plaintiff, in consequence of his barn being
threatened with fire, turned his horses out and they strayed
on the unfenced track and were killed, and it was shown that,
even if the company had complied with the statute, the fence
would have been destroyed by the fire for which it was not
responsible, it was held that it was not liable for the killing
of the horses.?°

The liability of the company for the erection of a fence be-
gins at the same time with the necessity of protection to the
land-owners, that is, when it begins to run cars over the
road.1® It cannot claim exemption from building fences on
the ground that the road is not completed and that there was
u lack of reasonable time, where a train is moved over the
road, though it is a construction train carrying material.’’

Whether the fence is sufficient in the sense of the statute
depends somewhat on the wording thereof. It is for the
jury to say whether the statute has been complied with.'® It
has been held that the liability for a defect in the fence ex-
tends to all kinds of animals that would be kept from the track
by an ordinary fence, without reference to the question
whether they are large enough to throw a train off the track

“St, Louis, A. & T. H. R. Co. v. Linder, 39 Ill. 433; Indianapolis &
C. R. Co. v. McClure, 26 Ind. 370; New Albany & S. R. Co. wv.
McNamara, 11 id. 543; Louisville, E. & St. L. R. Co. v. Hart, 2 Ind. App.
130; Cleaveland v. Chic. & N. R. Co., 35 Ia. 220; Alger v. Miss. & M. R.
Co., 10 id. 268; Louisville & F. R. Co. v. Milton, 14 B. Mon. (Ky.) 75.

> Cook v. Minneapolis, St. P. & S. S. M. R. Co., 98 Wis. 624.

* Silver v. Kansas City, St. L. & C. R. Co., 78 Mo. 528; Cobb v. Kansas
City, F. S. & M. R. Co., 43 Mo. App. 313; Gordon v. Chic., S. F. & C.
R. Co., 44 id. 201. See Holt v. Melocke, 34 Low. Can. Jur. 309.

% Glandon v. Chic., M. & St. P. R. Co., 68 Ia. 457; Wichita & Colo.
R. Co. v. Gibbs, 47 Kan. 274.

* Parker v. Lake Shore & M. S. R. Co., 93 Mich. 607. And see Welch
vw. Abbot, 72 Wis. 512.

656 LIABILITY UNDER THE STATUTES,

when run over by it® But the company may sometimes
escape liability by showing that a lawful fence would not have
kept off the animals in question.2® The fence should be suffi-
cient to turn not merely ordinary stock, but stock even to
some extent unruly; 7! though the propensities of exception-
ally unruly or breachy beasts need not be guarded against.**
Where hogs are not permitted to run at large, it has been
held that the company is under no obligation to fence against
them.2? But where the statute inflicts a penalty for a failure
to fence against “horses, cattle, mules or other animals,” hogs
are included.24 And the word “cattle” in the English statute
has been held to include pigs.2° “Cattle” has been also held
to include horses,?* mules,?” and asses.28 ‘‘Stock’’ has been
held not to include dogs.?®

It is not necessary that the fence should be so high as never
to be covered with snow: snow-drifts are not to be considered
defects in the fence.2° A fence upon one side only of the road
is not sufficient.*4 But it has been held that a company is not

* Indianapolis, P. & C. R. Co. v. Marshall, 27 Ind. 300. And see Hal-
verson v. Minneapolis & St. L. R. Co., 32 Minn. 88.

*” Mo. Pac. R. Co. v. Baxter, 45 Kan. 520; Atchison, T. & S. F. R. Co.
v. Yates, 21 id. 613.

“Chic. & Alton R. Co. v. Utley, 38 Ill. 410; Pittsb., C. & St. L. R. Co.
v. Howard, 4o O. St. 6.

The company is liable where a frightened horse runs against and breaks
through a railing approaching a bridge, which should have been kept in
repair: Titcomb v. Fitchburg R. Co., 12 Allen (Mass.) 254.

* Leggett v. Ill. Cent. R. Co., 72 Ill. App. 577; Wabash R. Co. v. Ferris,
6 Ind. App. 30.

* Kansas City, Ft. S. & G. R. Co. v. McHenry, 24 Kan. sor; Atchison,
T. &S. F.R. Co. vu. Yates, 21 id. 613.

* Henderson v. Wabash, St. L. & P. R. Co., 81 Mo. 605.

* Child v. Hearn, L. R. 9 Ex. 176.

“McAlpine v. Grand Trunk R. Co., 38 U. C. Q. B. 446.

* Toledo, W. & W. R. Co. v. Cole, 50 Ill. 184.

“Ohio & Miss. R. Co. v. Brubaker, 47 Ill. 462.

“Tex. & Pac. R. Co. uv. Scott, 4 Tex. App. (Civ. Cas.) 476.

* Patten v. Chic., M. & St. P. R. Co., 7g Ia. 459.

” Tredway v. S.C. & St. P. R Co., 43 Ia. 527.

GENERAL LIABILITY FOR FAILURE TO FENCE. 657

required to fence where a pond, embankment, etc., is a suffi-
cient protection.®?

The company may be responsible, under certain circum-
stances, for the erection of a barbed-wire fence on which a
frightened animal is injured ;33 as well as for a failure to fence
resulting in an injury to an animal by running into a barbed-
wire fence.*

The mere fact that the adjacent owner has built a fence
is no excuse for the company’s failure to do so.*° But it has
been held that the company may avail itself of the land-
owner’s fence, if it is a suitable one, and that the fact that no
compensation was paid for the right of way will not prevent
its joining fences.*° The fact that the company’s fence was.
joined on to the land-owner’s fence creates no legal implica-
tion, however, that the latter had assumed any obligation to:
aid in keeping it up.®”

It is not sufficient that the company erect a lawful fence:
reasonable diligence must be used in keeping it in repair.**

® Veerhusen v. Chic. & N. R. Co., 53 Wis. 689. And see Ryan v. Great
S. & W. R. Co., 32 L. R. Ir. 15.

® Louisville & N. R. Co. v. Upton, 18 Ill. App. 605.

4 Mo. Pac. R. Co. v. Gill, 49 Kan. 441. And see Savage v. Chic., M. &
St. P. R. Co., 31 Minn. 419.

Otherwise, where the company is not required to fence: St Louis, I.
M. & S. R. Co. v. Ferguson, 57 Ark. 16.

% Louisville, N. A. & C. R. Co. v. White, 94 Ind. 257; Norfolk & W.R.
Co. v. McGavock, 90 Va. 507; San Antonio & A. P. R. Co. v. Peterson,
8 Tex. Civ. App. 367. And see Atchison, T. & S. F. R. Co. w. Gabbert,
34 Kan. 132.

* Faxton v. Pittsburgh, C. & St. L. R. Co., 26 O. St. 214.

*" Busby v. St. Louis, K. C. & N. R. Co., 81 Mo. 43.

® Lemmon v. Chic. & N. R. Co., 32 Ia. 151; Chic. & N. R. Co. ue
Barrie, 55 Ill. 226; Grand Rapids & Ind. R. Co. v. Monroe, 47 Mich. 152;
Lake Erie & W. R. Co. v. Fishback, 5 Ind. App. 403.

In Antisdel v. Chic. & N. R. Co., 26 Wis. 145, a high degree of diligence
is said to be necessary, not ordinary diligence.

The evidence of negligence in repairing is for the jury: Graves v. Chic.,
M. & St. P. R. Co., 47 Minn. 429.

42

658 LIABILITY UNDER THE STATUTES.

This involves the duty of continuous inspection.2? But a
company was held not liable where a fence was destroyed by
fire after daily inspection had been made and the fact was not
known till the stock were killed.*° In England, a com-
pany which erects a fence more than five years after the open-
ing of its road to separate it from the adjoining land is bound
to maintain the fence and is liable for an injury to an animal
escaping upon the track because of the defective condition
of the fence, though the statute provides that the company
shall not be compelled to make any further or additional
accommodation works after five years from the opening of
the railway.*!

The company is responsible only where it has notice of the
defect and reasonable time in which to make repairs.*? It is
liable where a prudent man would have had time in which to
discover the defect.42 Where the land-owner knows that the
fence is defective and fails to notify the company, he cannot

” Studer 7. Buffalo & L. H. R. Co., 25 U. C. Q. B. 160.

Whether an inspection every two days is sufficient diligence is for the
jury: Evans v. St. Paul & S. C. R. Co., 30 Minn. 489.

“Toledo, C. S. & D. R. Co. v. Eder, 45 Mich. 320.

“ Dixon v. Great Western R. Co., [1897] 1 Q. B. 300, dismissing the ap-
peal from [1896] 2 Q. B. 333.

“Hodge v. N. Y. Cent. & H. R. R. Co., 27 Hun (N. Y.) 304; Clardy
v. St. Louis, I. M. & S. R. Co., 73 Mo. 576; Young v. Hannibal & St.
J. R. Co., 82 id. 427; Aylesworth v. Chic., R. I. & P. R. Co., 30 Ia. 450;
Davis v. Chic., R. I. & P. R. Co., 40 id. 292; Brentner v. Chic., M. & St.
P. R. Co., 58 id. 625; Ill. Cent. R. Co. v. Swearingen, 47 Ill. 206; Chic.
& Alton R. Co. v. Umphenour, 69 id. 198; Same v. Saunders, 85 id. 288;
Toledo & Wabash R. Co. v. Daniels, 21 Ind. 256; Indianapolis, P. & C.
R. Co. v. Truitt, 24 id. 162.

But see Studer v. Buffalo & L. H. R. Co., 25 U. C. Q. B. 160, where the
company was held liable though reasonable time to repair had not elapsed.
See also Pittsburgh, C. & St. L. R. Co. v. Smith, 38 O. St. 410.

As to reasonable time to discover defects, see Varco v. Chic., M. & St.
P. R. Co., 30 Minn, 18; Mayfield v. St. Louis & S. F. R. Co., 91 Mo. 296;
Foster v. St. Louis, I. M. & S. R. Co., 44 Mo. App. 11; Galveston, H.
& S. A. R. Co. v. Walter (Tex. Civ. App.), 25 S. W. Rep. 163.

“ Lainiger v, Kansas City, St. J. & C. B. R. Co., 41 Mo. App. 165. And
see Indianapolis & St. L. R. Co. v. Hall, 88 Ill. 368.

GENERAL LIABILITY FOR FAILURE TO FENCE. 659

recover.** But one who pastures his stock on another’s land
is not chargeable with the land-owner’s failure to complain of
the insecurity of the fence.“° Where the fence as originally
built was defective, no evidence of knowledge by the defend-
ant is necessary.*®

The duty of keeping fences in repair is not shifted to the
owner of stock because the latter, owing to the company’s
neglect, found it necessary to make temporary repairs.*7
Where a company had maintained a fence for years near its
station grounds and had given no notice that it would not be
kept up, it was held estopped from exonerating itself.48 A
company negligently burning a pasture fence is liable for the
stock that escape.*® Where the company ran its trains on
Sunday, it could not claim exemption from the labor of re-
pairing its fence on that day.*°

If animals get through a fence by breaches made by stran-
gers, the company is not liable in the absence of negligence.*
Otherwise, where a gap is made in a fence by persons furnish-
ing supplies to the company.°? But where a gap was used by

“Chic., B. & Q. R. Co. v. Seirer, 60 Il. 295.

But, under the Ohio statute, it was held that where a horse was injured
by a defective fence of which the owner knew and the company did not,
the latter could not escape responsibility by showing that it had no notice
of the actual condition of the fence: Pittsb., Cinc. & St. L. R. Co. v,
Smith, 38 O. St. q1o.

Mo. Pac. R. Co. v. Pfrang (Kan. App.), 51 Pac. Rep. 911.

“Morrison v. Burlington, C. R. & N. R. Co., 84 Ia. 663; Duncan v.
St. Louis, I. M. & S. R. Co., 91 Mo. 67; Gulf, C. & S. F. R. Co. v.
Rowland (Tex. Civ. App.), 23 5. W. Rep. 421.

* Peoria, D. & E. R. Co. v. Babbs, 23 Ill. App. 454; Jeffersonville, M.
& I. R. Co, v. Sullivan, 38 Ind. 262. See Chic., B. & Q. R. Co. v. Seirer,
60 Ill. 295.

“Chic. & E. I. R. Co. v. Guertin, 115 Ill. 466.

“St. Louis, A. & T. R. Co. v. McKinsey, 78 Tex. 208.

“Toledo, W. & W. R. Co. v. Cohen, 44 Ind. 444.

2 Case v. St. Louis & S. F. R. Co., 75 Mo. 668; Walthers v. Mo. Pac.
R. Co., 78 id. 617; Toledo & W. R. Co. v. Fowler, 22 Ind. 316; Chic.
&N.R. Co. v. Barrie, 55 Ill. 226; Perry v. Dubuque S. R. Co, 36 Ia. 102.

* Jacksonville, T. & K. W. R. Co. v. Harris, 33 Fla. 217.

660 LIABILITY UNDER THE STATUTES.

the plaintiff for his own convenience in delivering ties sold to
the company, the latter was held not liable.** And one
having a license from a lessee to pasture his sheep cannot re-
cover from the company for an injury caused by an opening
in the fence made by the lessee for his own accommodation,
unless the opening was made on an agreement by the com-
pany to put in a gate, which it has failed to do within a rea-
sonable time.*+ The removal of the company’s fence by the
defendant is not the proximate cause of the killing of the
cattle of a third person which strayed upon the track and the
company cannot recover from the defendant what it has been
obliged to pay for such killing.®*

The absence of, or insufficiency of, a fence at the place
where the animal went upon the track is the point to be con-
sidered in all these cases, and not the condition of the fence at
the place where the injury occurred.5& The proof and pre-
sumption with regard to this will be considered later.°7

® Clark v. Chic. & W. M. R. Co., 62 Mich. 358.

“McCoy wv. South. Pac. R. Co., 94 Cal. 568. And see Best wv. Ulster
& D. R. Co., 54 N. ¥. Suppt. 305.

© Louisville & N. R. Co. v. Guthrie, ro Lea (Tenn.) 432.

* Toledo, P. & W. R. Co. v. Darst, 51 Ill. 365, 52 id. 89; Great Western
R. Co. v. Hanks, 36 id. 281; Ind., B. & W.R. Co. v. Quick, 109 Ind. 295;
Louisville, N. A. & C. R. Co. v. Goodbar, 102 id. 596; Wabash, St. L. &
P. R. Co. v. Tretts, 96 id. 450; Wabash R. Co. v. Forshee, 77 id. 158;
Jeffersonville, M. & I. R. Co. v. Lyon, 72 id. 107; Louisville, N. A. & C.
R. Co. v. Etzler, 3 Ind. App. 562; Mo. Pac. R. Co. v. Leggett, 27 Kan. 323;
Atchison & N. R. Co. v. Cash, Ibid. 587; Foster v. St. Louis, I. M. &
S. R. Co., 90 Mo. 116; Witthouse v. Atlantic & P. R. Co., 64 id 523;
Henson v. St. Louis, I. M. & S. R. Co., 34 Mo. App. 636; Pearson v. Chic.,
B. & K. C. R. Co., 33 id. 543; Price v. Barnard, 7o id. 175; Miller v.
Wabash R. Co., 47 id. 630; Ehret v. Kansas City, St. J. & C. B. R. Co,
20 id. 251; Green v. St. Paul, M. & M. R. Co., 60 Minn. 134; Sullivan v.
Oreg. R. & N. Co., 19 Oreg. 319.

Where stock enters at a place excepted from the operation of the statute
and wanders along the track to a place not excepted, because of the
failure to erect a suitable cattle-guard, and is killed, the company is liable:
Chic. & E. I. R. Co. v. Blair, 75 Ill. App. 659.

See § 144, infra.

GENERAL LIABILITY FOR FAILURE TO FENCE. 661

A State statute making a railroad company liable for in-
juries resulting from a failure to erect and maintain fences and
cattle-guards is not unconstitutional; and the expenses of
keeping watch in order to guard cattle from straying on un-
fenced lands and of diminution in value of the adjoining land
by reason of the failure to fence, fall within the regulation of
the police power of the State.5® Such a statute is not re-
pealed by a law prohibiting the permitting of animals to run
at large.°®

In so far as these provisions are for the benefit of the land-
owner, they may be waived by his agreement to maintain or
dispense with a fence, thus exonerating the company from
liability.°° Such a contract binds the tenant of the owner
knowing thereof.** And it has been held, where duly re-
corded, to run with the land and to bind tenants and grantees,
as such.®* In another case it was held to bind the lessee of
the owner’s grantee so far that he could derive no advantage
from its breach or claim from the company a higher degree

Minneapolis & St. L. R. Co. v. Emmons, 149 U. S. 364.

See, also, as to the constitutionality of such statutes, Pa. R. Co. v.
Riblet, 66 Pa. St. 164; Il. Cent. R. Co. v. Crider, 91 Tenn. 489; Tex. Cent.
R. Co. uv. Childress, 64 Tex. 346.

” Rockford, R. I. & St. L. R. Co. wv. Irish, 72 Ill. 404; Ohio & Miss.
R. Co. v. Jones, 63 id. 472; Wabash R. Co. v. Perbex, 57 Ill. App. 62;
Holland v. West End N. G. R. Co., 16 Mo. App. 172.

™ Enright v. San Francisco & S. J. R. Co., 33 Cal. 230; Indianapolis,
P. & C. R. Co. v. Petty, 25 Ind. 413; Bond v. Evansville & T. H. R.
Co., 100 id. 301; Whittier v. Chic., M. & St. P. R. Co., 24 Minn. 394;
Pittsburgh, C. & St. L. R. Co. v. Smith, 26 O. St. 124; Ells v. Pacific
R. Co., 48 Mo. 231; Dolan v. Newburgh, D. & C. R. Co., 120 N. Y.
571; Duffy v. N. Y. & H. R. Co., 2 Hilt. (N. Y.) 496; Talmadge v.
Rensselaer & S. R. Co., 13 Barb. (N. Y.) 493.

"St. Louis, V. & T. H. R. Co. v. Washburn, 97 Ill. 253; Cinc., H. & D.
R. Co. v. Waterson, 4 O. St. 424. But not where he has no notice:
Thomas v. Hannibal & St. J. R. Co., 82 Mo. 538.

@ Indianapolis, P. & C. R. Co. v. Petty, supra; Duffy v. N. Y. & H. R.
Co., 2 Hilt. (N. Y.) 496. But see Gilman v. E. & N. A. R. Co., 60
Me. 235.

662 LIABILITY UNDER THE STATUTES.

of care than if the contract had been kept.** On the other
hand, a parol agreement between the owner and the company
to remove or dispense with a fence has been held not to run
with the land or to bind the grantee.** So it has been held
no defence that the party whose cattle were killed was legally
bound to fence under a covenant between his assignor and
the company.® And the company cannot, in any case, es-
cape responsibility to the person whose stock are killed by
setting up a contract with the adjacent land-owner or any
third party by which the latter agrees to erect or maintain
the fence.®*

And, in general, the company cannot divest itself of its re-
sponsibility to its passengers and the public at large by mak-
ing private contracts with the land-holders along the road by
which the Jatter separately agree to make and keep up
fences.®7

Where the company’s obligation to fence arises from con-

@ Easter v. Little Miami R. Co., 14 O. St. 48.
“Wilder v. Me. Cent. R. Co., 65 Me. 332; St. Louis, A. & T. H. R. Co.

v. Todd, 36 Ill. 409. And see Corry v. Great Western R. Co., 7 Q. B. D.
322.

“ Shepard v. Buffalo, N. Y. & E. R. Co., 35 N. Y. 641.

“ Indianapolis, P. & C. R. Co. v. Thomas, 84 Ind. 194; Cine, H. & I.
R. Co. v. Ridge; 54 id. 39; Warren v. Keokuk & D. M. R. Co., 41 Ia. 484;
Neversorry v. Duluth, S. S. & A. R. Co. (Mich.), 73 N. W. Rep. 125;
Gilman v. European & N. A. R. Co., 60 Me. 235; Silver v. Kansas City,
St. L. & C. R. Co., 78 Mo. 528; Berry v. St. Louis, S. & L. R. R. Co., 65
id. 172; Pittsb. C. & St. L. R. Co. uv. Allen, 40 O. St. 206; Gill v. Atlantic
& G. W. R. Co., 27 id. 240. But see Baltimore & O. R. Co. v. Wood,
47 O. St. 431.

In a note on Gilman v. European & N. A. R. Co., supra, it is said:
“But if the animal, in fleeing from the engine, had become so infuriated
as to run over and kill the plaintiff or his child, it might be fairly re-
garded, probably, as too remote a consequence of the negligence to form
the basis of a recovery. And so, too, if in consequence of the loss of his
engagement and, by reason of such default, he had been driven into
bankruptcy and thus lost all his property and business, no one would
dream of making the defendant responsible for the loss:” 12 Am. L. Reg.
N. S. s60 n.

“New Albany & S. R. Co. v. Maiden, 12 Ind. ro.

GENERAL LIABILITY FOR FAILURE TO FENCE. 663

tract, this imposes the same duties and liabilities as a statute
would have done.** The fact that the liability is under con- |
tract does not exempt the plaintiff from his obligation to take
ordinary care for the protection of his animals.°®

139. To What Owners the Company is Liable.—The question
whether the fencing laws were intended as a protection to the
general public or only to the owners or lawful occupiers of
lands adjoining the railway is, to a certain extent, one of
statutory interpretation. The rule that the general public,
and not merely the adjoining land-owners, are to be consid-
ered has been declared in a leading text-book to be the better
one,’ but it is by no means universally followed. It should
be noted that by the general public, in this connection, is.
meant only the owners of animals not belonging on adjacent
lands. Passengers and the owners of goods carried on trains
are not here referred to: it has been already stated that it was’
largely for their benefit that the statutes regulating fences.
were enacted."!

In England, a railway company is bound to maintain fences:
for the protection of the cattle of the “owners or occupiers”
of adjoining land, and this would include one having a license
from the owner to graze his cattle there.’7 The owner of
sheep trespassing on an adjoining close is not within the pro-
tection of the statute.7* But where the company is obliged
by statute to keep gates closed, an animal on a highway is

@ Gulf, C. & S. F. R. Co. v. Washington, 49 Fed. Rep. 347.

The agreement need not be under seal: Vandegrift v. Delaware R. Co.,
2 Houst. (Del.) 287. A covenant to build a good and sufficient fence,.
in consideration of the grant of right of way, runs with the land: Lake
Erie & W. R. Co. v. Griffin (Ind. App.), 53 N. E. Rep. 1042.

* Joliet & N. I. R. Co. v. Jones, 20 Ill. 221.

” See 1 Thompson Negl. 517. Cf. 1 Redf. Rys. (6th ed.) 530. See also,
in connection with this section, the cases on contributory negligence cited
in § 134, supra.

7 See § 138, infra. ™ Dawson v. Midland R. Co., L. R. 8 Ex. 8.

” Ricketts v. East & West India Docks Co., 12 C. B. 160.

664 LIABILITY UNDER THE STATUTES.

deemed lawfully there as against it, whether such animal is
straying or passing.**

In Canada, too, the statute protects only the owner or
occupant of adjoining lands and there can be no recovery
thereunder unless the animals were rightfully on such lands
or on the highway from which they escaped to the track.’®

The law in England and Canada has thus been summarized :
“The obligation on railway companies to fence their line is
regulated by statute, and the liability for damage resulting
from neglect of their duty in that respect is to be deter-
mined by the extent of such obligation. The rule to be
gathered from the cases is that, unless the statute clearly im-
poses a greater obligation on the company, it is responsible
only to the adjoining owner between whose land and the
‘railway line the defect in its fence exists by reason of which
loss happens. So, if there is a defect in the company’s fence
‘at a certain point, and cattle trespassing on the adjoining land
at that point get through the defective fence on the track and
are killed, the company is not liable to the owner of the cattle.
‘On the other hand, if the statute clearly imposes an unquali-
fied general duty on the company to protect its line at cer-

“ Dickinson v. London & N. W. R. Co., 1 H. & R. 390; Faweett v.
York & N. M. R. Co., 16 Q. B. 610; Midland R. Co. v. Daykin, 17
Cc. By 126.

See Manchester, S. & L. R. Co. v. Wallis, 14 C. B. 213; Luscombe
v. Great Western R. Co., 107 L. T. 161.

*® Douglass v. Grand Trunk R. Co., 5 Ont. App. 585; Daniels v. Same,
ir id. 471; Conway v. Can. Pac. R. Co., 12 id. 708; Duncan v. Same, 21
‘Ont. 355; Griffith v. Same, 15 Leg. News (Can.) 119; Roux v. Grand
Trunk R. Co., 14 Low. Can. 140; Gillis v. Great Western R. Co., 12
U. C. Q. B. 427; McLennan v. Grand Trunk R. Co., 8 U. C. C. P. 411;
Ferris v. Can. Pac. R. Co., 9 Ma. 501; Westbourne Cattle Co. v. Ma. &
N. R. Co., 6 id. 553; McMillan v. Same, 4 id. 220.

But see St. John & M. R. Co. v. Montgomery, 21 N. B. 441, where
the obligation to fence was held to be general and not merely as against
adjoining land-owners.

Where the adjoining land is unoccupied the company need not fence:
McFie v. Can. Pac. R. Co., 2 Ma. 6.

TO WHAT OWNERS THE COMPANY IS LIABLE. 665

tain places, and it neglects to do so, the owners of animals
which get upon the track through such neglect and are in-
jured may recover against the company, although the ani-
mals were not lawfully on the land from which they escaped
on to the railway line.” 76

In New York a company is liable for an injury to any ani-
mal by its agents or engines, owing to a failure to fence,
whether the owner of the animal is an adjoining proprietor or
not."* Itis not liable for injuries to animals caused by them-
selves by falling into a hole, etc., when they stray on an un-
fenced track through land not belonging to the plaintiff."®
But it is liable for injuries to animals caused by themselves
when they belong to an adjoining proprietor or one using his
land by his license, as the failure to fence is in that case the
neglect of a statutory obligation due to the plaintiff.7° The
company is compelled to fence even where it owns the adjoin-
ing land, unless there is some physical barrier that will keep
animals off.®°

In Massachusetts it was held in an early case that the fenc-
ing statute was designed for the safety of the public and the
protection of all domestic animals whether rightfully or
wrongfully out of their owner’s enclosure, and that the com-
pany was, accordingly, liable though the cattle killed had been
trespassing on the adjacent land.*1_ But in a later case it was
said that the above case was decided under a statute of Con-
necticut and did not decide that the plaintiff's negligence

16 Can. L. Times, 149. Article by R. M. Macdonald.

™ Corwin v. N. Y. & E. R. Co., 13 N. Y. 42. .

So, where an animal was wrongfully in a highway: Waldron v. Rens-
selaer & S. R. Co. 8 Barb. (N. Y.) 390.

See, also, the cases cited in § 134, supra.

™ Knight v. N. Y., L. E. & W. R. Co., 99 N. Y. 25.

* Graham v. Delaware & H. Can. Co., 46 Hun (N. Y.) 386; French
v. Western N. Y. & P. R. Co., 72 id. 460.

© Klock v. N. Y. Cent. & H. R. R. Co., 62 Hun (N. Y.) 291.

® Browne v. Providence, H. & F. R. Co., 12 Gray (Mass.) 55. See the
«unfavorable comments on this case in 1 Redf. Rys. (6th ed.) 530. ;

666 LIABILITY UNDER THE STATUTES.

would not bar recovery. It was held that the Massachusetts.
statute protected only adjoining land-owners and travellers
on the road, and that the company was not liable to the owner
of sheep that strayed on another’s land and thence through a
defective fence that the company was bound to repair on to
the track.6* It is otherwise where the injury is wanton or
malicious.®?

In Missouri, the statute is for the protection of adjoining
land-owners only and the company is not liable where the ani-
mal killed had passed through the property of others before
reaching the track; ** unless it was on an adjoining field with
the consent of the owner thereof.8° But there is no such
thing in that State as a trespass on unenclosed lands and, ac-
cordingly, if the field adjoining the unfenced track was not.
surrounded with a proper fence, the owner of the animal
passing through such field to the track may recover.®® <A.
similar rule exists in Jllinois.§*

In Minnesota it was held that the fact that cattle were tres-
passing on the land from which they passed to the unfenced
track was no defence to an action by the owner. The court.
said, “Of the cases that consider statutes of this kind, we think.
those are decided upon the better reason which hold that
such statutes are police regulations, designed for the protec-
tion of all, and not merely rules for constructing division

“Eames v. Salem & L. R. Co., 98 Mass. 560.

® See McDonnell v. Pittsfield & N. A. R. Co., 115 Mass. 564; Maynard’
v. Boston & M. R. Co., Ibid. 458.

“Ferris v. St. Louis & H. R. Co., 30 Mo. App. 122. And see Bran-
denburg v. St. Louis & S. F. R. Co., 44 id. 224.

* Hendrix v. St. Joseph & St. L. R. Co., 38 Mo. App. 520.

“ Kaes v. Mo. Pac. R. Co., 6 Mo. App. 397; Duke v. Kansas City,.
F.S. & M. R. Co., 39 id. 105; Dean v. Omaha & St. L. R. Co., 54 id.
647; Berry v. St. Louis, S. & L. R. Co., 65 Mo. 172; Harrington v. Chic.,
R. 1. & P. R. Co, 71 id. 384; Peddicord v. Mo. Pac. R. Co., 85 id. 160..

So, where the animal passed along a public road: Emmerson v. St.
Louis & H. R. Co., 35 Mo. App. 62r.

"Til. Cent. R. Co. v. Arnold, 47 Ill. 173.

TO WHAT OWNERS THE COMPANY IS LIABLE. 66T

fences between adjoining owners, for neglect of which only
an adjoining owner may complain.” *

In Ohio, also, the company’s duty to fence is not confined to
adjoining owners but extends to the public generally.8° The
same rule exists in Indiana,®° Wisconsin,®! and Kansas.®?

In Maine the statutory obligation of the company to fence
is limited to the owners of stock rightfully on the adjoining
land, and the owner of a runaway horse which ran into a mu-
nicipal park and was killed on a track running through the
park was not allowed to recover.®*

In New Hampshire, too, the company. is compelled to
fence only as against animals rightfully on the adjoining
land.°* This is also the rule in Vermont, ®* and in Nevada.*®

In Oklahoma the company is liable for failure to fence only
to an abutting owner who has constructed a fence on all sides
of the land, except on the right of way, and has notified the
company to erect one there.%”

* Gillam v. Sioux City & St. P. R. Co., 26 Minn. 268.

© Pittsburg, C. & St. L. R. Co. v. Allen, 4o O. St. 206; Marietta & C.
R. Co. v. Stephenson, 24 id. 48.

© Indianapolis & C. R. Co. v. Townsend, 10 Ind. 38.

See Cinc., W. & M. R. Co. uv. Stanley (Ind. App.), 27 N. E. Rep. 316.

*" McCall v. Chamberlain, 13 Wis. 637; Curry v. Chic. & N. R. Co.,
43 id. 665.

"Mo. Pac. R. Co. v. Roads, 33 Kan. 640.

% Allen v. Boston & M. R. Co., 87 Me. 326,—on the ground that the
animal was not rightfully in the park, even though the owner exercised
great care to prevent its escape.

* Morse v. Boston & L. R. Co., 66 N. H. 148; Giles v. Boston & M.
R. Co., 55 id. 552; Mayberry v. Concord R. Co., 47 id. 391; Cornwall
zv. Sullivan R. Co., 28 id. 161; Woolson v. Northern R. Co., 19 id. 267.

The company is not liable for the killing of an animal escaping from
the highway: Woolson v. Northern R. Co., 19 N. H. 267; Towns v.
Cheshire R. Co., 21 id. 363.

® Smith v. Barre R. Co., 64 Vt. 21; Bemis v. Conn. & P. R. R. Co,
42 id. 375; Morse v. Rutland & B. R. Co., 27 id. 49; Jackson v. Same,
25 id. 150.

*® Walsh v. Virginia & T. R. Co., 8 Nev. IIo.

“McCook v. Bryan (Okla), 46 Pac. Rep. 506.

668 LIABILITY UNDER THE STATUTES.

In all these cases one lawiully occupying the adjoining land
as tenant or under a license is as fully protected as the owner
would be.*S

140. Crossings; Gates.—It is a general rule that railway com-
panies are not required to fence their tracks at highway cross-
ings which the public convenience demands should remain
unobstructed for purposes of traffic.®® This rule applies
to highways de facto and de jure;1°° and to all parts of the
road, not merely to that part in actual use by the public.t°
It has been held also that where a railway is located on part
of a highway, the remainder of which is still used as such, the
company is not bound to fence its right of way.1° But where
there 1s a-travelled road running parallel to the line of rail-

“See Veerhusen v. Chic. & N. R. Co., 53 Wis. 689; French v. Western
N. Y. & P. R. Co., 72 Hun (N. Y.) 469; Mo. Pac. R. Co. v. Pfrang
(Kan. App.), 51 Pac. Rep. 911; McCoy wv. South. Pac. Co. (Cal.), 26
Pac. Rep. 6209.

“ Mobile & O. R.Co. v7. Moore, 34 Ill. App. 519; Lafayette & I. R. Co.
wv. Shriner, 6 Ind. 141; McPheeters v. Hannibal & St. J. R. Co., 45
Mo. 22.

A company constructing an insufficient crossing is liable, though the
fright of the animal contributed to the injury: Hanson v. Chic., St. P.
& K, C. R. Co., 94 Ia. goo.

* Luckie v. Chic. & A. R. Co., 76 Mo. 639; Brown v. Kansas City,
St. J. & C. B. R. Co., 20 Mo. App. 427; Carter v. Kansas City, Ft. S. &
M. R. Co., 69 id. 295; Soward v. Chic. & N. R. Co., 33 Ia. 387; Long
v. Cent. Ia. R. Co., 64 id. 657; Atchison, T. & S. F. R. Co. wv. Griffis,
28 Kan. 539; Mo. Pac. R. Co. v. Kocher, 46 id. 272.

But not to an abandoned canal intersecting the track: White Water
Valley R. Co. v. Quick, 30 Ind. 384, 31 id. 127.

*” Ehret v. Kansas City, St. J. & C. B. R. Co., 20 Mo. App. 251.

The fence should extend to the cattle-guard at the crossing: Jefferson-
ville, M. & I. R. Co. v7, Avery, 31 Ind. 277.

™ Louisville, N. A. & C. R. Co. v. Francis, 58 Ind. 389; Coy v. Utica &
S. R. Co., 23 Barb. (N. Y.) 643.

But see Sarver 7. Chic., B. & Q. R. Co., 104 Ia. 59.

In Missouri the company is not excused from fencing its track under
such circunmistances: it is not the right of way which the law requires to
be fenced, but the “road”: Emmerson v. St. Louis & H. R. Co., 35 Mo.
App. 621.

CROSSINGS ; GATES. 669

way but at a sufficient distance from the track to permit of the
construction of a fence, the company is not excused from en-
closing its road with a good and lawful fence to keep off
animals.19?

A railway company need not erect fences where its track
passes through and crosses the streets of cities, towns or
villages,’°* even where the streets are unused. But a com-
pany is not excused from fencing through a large block of
ground, not intersected with streets and alleys, simply because
it is within the limits of a city.1° It has the same right to
fence land lying within the corporate limits of a city, but out-
side of streets or highways, as if the corporation did not exist,
unless, possibly, a municipal ordinance controls the right.'°7
And where the town exists only on paper the company is
liable for failure to fence.°* It has been held in Missouri
that where, within the limits of a town, lands dedicated to
public use on a railway are occupied and used for farming
purposes, such occupancy does not make it lawful for the
company to fence across them.’

There appears to be a variance in the decisions as to
whether it is the company’s duty to erect gates and bars at

Mo. Pac. R. Co. v. Eckel, 49 Kan. 794.

™ Toledo, W. & W. R. Co. v. Spangler, 71 Ill. 568; Ewing v. Chic.
& A. R. Co., 72 id. 25; Chic. & A. R. Co. v. Engle, 58 id. 381; Flint &
P.M. R. Co. v. Lull, 28 Mich. 510; Bowman v. Troy & B. R. Co., 37
Barb. (N. Y.) 516; Rippe v. Chic, M. & St. P. R. Co., 42 Minn. 34;
Ohio, I. & W. R. Co. v. Heady (Ind. App.), 28 N. E. Rep. 212; Blan-
ford v. Minneapolis & St. L. R. Co., 71 Ia. 310; Ryan v. Northern Pac.
R. Co. (Wash.), 53 Pac. Rep. 824; Internat. & G. N. R. Co. v. Dunham,
68 Tex. 231.

® Lathrop v. Cent. Ia. R. Co., 69 Ia. 105.

© Toledo, W. & W. R. Co. v. Howell, 38 Ind. 447.

And see Cleveland & P. R. Co. v. McConnell, 26 O. St. 57; Nashville,
C. & St. L. R. Co. v. Hughes, 94 Tenn. 450; Crawford v. N. Y. Cent.
& H. R. R. Co., 18 Hun (N. Y.) 108; Iba v. Hannibal & St. J. R. Co.,
45 Mo. 469.

™ Coyle v. Chic, M. & St. P. R. Co., 62 Ia. 518.

28 Gerren v. Hannibal & St. J. R. Co., 60 Mo. 405.

Elliott v. Hannibal & St. J. R. Co., 66 Mo. 683.

670 LIABILITY UNDER THE STATUTES.

private farm crossings as a part of the statutory obligation to
fence!° In Indiana, the company has been held to be bound
to fence at private crossings, but not as against one for whose
benefit the crossing is maintained, nor as against one who has
undertaken to keep up the fence,!*! nor where a fence would
exclude land-owners from their private passage to a high-
way.1!2 But, under a late statute, the erection of gates and
keeping them locked are obligations imposed on land-owners,
for the violation of which they are liable. The company has no
control over the construction and use of farm crossings and
is not liable whether there are gates or not, unless the injury
was caused by the negligence of its servant,’!* or the company
had agreed to fence in consideration of the right of way,'!*
or to keep the gates closed and in proper repair.11°

In Tennessee a railway company is not required to fence
at private crossings.17® It is otherwise in Ohio.427 In Texas
it has been held that there is no implied reservation of power
in the legislature to compel a company fencing its track ac-
cording to previous laws to construct crossings within en-
closures for the benefit of land-owners.448 But an owner who
has granted the right of way is entitled to such crossings as
are reasonably necessary.14° In Minnesota it was held that
where the right to an open crossing existed by contract be-
tween the company and the land-owner, the former might

“°See 1 Thomp. Negl. 525.

™ Evansville & T. H. R. Co. v. Mosier, 101 Ind. 597; Louisville, N. A.
& C. R. Co. v. Consol’d. Trunk Line Co., 4 Ind. App. qo. And see
Baltimore, O. & C. R. Co. v. Kreiger, 90 Ind. 380.

™ Croy v. Louisville, N. A. & C. R. Co., 97 Ind. 126.

*° Louisville, N. A. & C. R. Co. v. Etzler, 119 Ind. 39; Pennsylvania
Co. v. Spaulding, 1r2 id. 47.

™ Chic. & A. R. Co. v. Barnes, 116 Ind. 126; Toledo, St. L. & K. C.
R. Co. v. Burgan, 9 Ind. App. 604.

™ Evansville & T. H. R. Co. v. Mosier, 114 Ind. 447.

™* Mobile & O. R. Co. v. Thompson, 101 Tenn. 197.

“Pittsburg & L. E. R. Co. v. Cunnington, 39 O. St. 327.

™ Gulf, C. & S. F. R. Co. v. Rowland, 70 Tex. 208.

™ Gulf, C. & S. F. R. Co. uv. Ellis, 70 Tex. 307.

CROSSINGS ; GATES. 671

tun its trains as if no such right existed, subject only to the
duty of looking out for cattle and avoiding injury to them,
if discovered.1*° In Illinois, it is the duty of the company at
a private farm crossing to place gates and bars to keep animals
within the enclosure off the track.!#4

A gate is a part of a fence and the duty of erecting and
maintaining fences includes the duty of keeping gates in re-
pair and closed as against stock.!22_ The gate must be suffi-
cient to keep out animals,‘?* Where the fastenings are in-
sufficient, contributory negligence in the plaintiff or his serv-
ant will bar his recovery.1*4 But the mere knowledge of the
land-owner that they were insufficient and his failure to notify
the company of the fact, have been held not to prevent his
recovering damages where his animals strayed and were killed
as a consequence of such insufficiency.1*°> It is otherwise
where the owner has changed the gate and hung it so as to
suit his own convenience.*® The fact that the company
knew that a gate was out of repair is evidence of negli-
gence.!2* But the fact that it continued to use a fastening
in which there was nothing intrinsically or necessarily dan-
gerous, which had been for nine years without mischievous re-

1 Whittier v. Chic, M. & St. P. R. Co., 26 Minn. 484.
aN 1 Peoria, P. & J. R. Co. v. Barton, 80 Ill. 72.

12 West v. Mo. Pac. R. Co., 26 Mo. App. 344; Estes v. Atlantic & St.
L. R. Co., 63 Me. 308; Mackie v. Cent. R. Co. of Ia., 54 Ia. 540; Chic. &
A. R. Co. uv. O’Brien, 34 Ill. App. 155; Wabash R. Co. v. Kime, 42 id.
272; Mo. Pac. R. Co. v. Hackett, 54 Kan. 316.

In Matson v. Baird, 3 App. Cas. 1082, it was held that a railway be-
‘Jonging to private owners was not obliged by statute to make and main-
tain gates across highways.

28 Charman v. South-Eastern R. Co., 21 Q. B. D, 524.

™ Haigh v. London & North-Western R. Co., 1 F. & F. 646.

8 Dunsford v. Mich. Cent. R. Co., 20 Ont. App. 577; McMichael v.
Grand Trunk R. Co., 12 Ont. 547; Toledo, St. L. & K. C. R. Co. v. Bur-
gan, 9 Ind. App. 604.

™ Chic., B. & Q. R. Co. v. Dannel, 48 Ill. App. 251.

”" Brooks v. London & North-Western R. Co., 33 W. R. 167. And
see Fitterling v. Mo. Pac. R. Co.. 79 Mo. 504.

672 LIABILITY UNDER THE STATUTES.

sults on the gate on which the animal was injured and was
of the same kind that was in general use elsewhere, was held
not to be evidence of negligence.1** The question as to
fastenings is whether they are reasonably sufficient and, if not,
if the stock got on the track and were killed by reason thereof,
and also whether such fastenings would be considered safe
by a man of ordinary prudence.’*® Where a gate has not a
statutory latch, the rule that the company should have a rea-
sonable time in which to discover its condition is not appli-
cable.12° And, in general, where there was a defect in the
construction of the gate, no notice need be shown."*?

The duty to maintain fences with gates at crossings is
wholly independent of the duty to erect and maintain such
crossings: the former may exist whether the latter does or
not.!82. Where the statute makes it the duty of the company
to construct and maintain safe crossings over its track, it is
liable to a traveller whose mule takes fright while driven over
a bridge across the track and, in consequence of the absence
of a railing where one is reasonably required, is thrown from
the bridge and injured.1*"

The variance in the decisions on the question of the duty
of erecting fences and gates at private crossings extends to
the question of responsibility in keeping such gates in repair
and closed. It is held in many cases that such responsibility
rests with the company.134 The latter is entitled to a reason-

“S Great Western R. Co. v. Davies, 39 L. T. N. S. 475.

™ Payne v. Kansas City, St. J. & C. B. R. Co., 72 Ta. 214.

* Duncan v. St. Louis, I. M. & S. R. Co., 91 Mo. 67.

™ Chic., B. & Q. R. Co. uv. Finch, 42 Ill. App. go.

* Murphy v. Grand Trunk R. Co., 1 Ont. 619.

* Georgia R. & Bkg. Co. v. Mayo, 92 Ga. 223.

™ Wabash R. Co. v. Perbex, 57 Ill. App. 62; Wait v. Burlington, C. R.
& N. R. Co., 74 Ia. 207; Morrison v. Kansas City, St. J. & C. B. R. Co,
27 Mo. App. 418; Marfell v. South Wales R. Co., 8 C. B. N.S 525.

A section hand may recover for injuries to his cattle caused by the com-
pany’s failure to close a gate, though he know it to be open,—it not
being his duty to close it except under orders: May v. Chic. & N. R. Co.
(Wis.), 79 N. W. Rep. 31.

CROSSINGS; GATES. 673

able time in which to discover that the gate is open or out of
repair ;'*° and the plaintiff must have been free from negli-
gence in the use thereof: '*° if he persistently keeps the gate
open, the company may be released from liability.127 Rea-
sonable care and diligence only are required on the part of the
company : /°* it need not keep a patrol.!3® But it is not re-
lieved from liability by the fact that the animal had escaped
from control.14° Where a horse strayed on another’s land
and then on the track through a barway in a fence, which had
been opened long before, though it did not appear by whom,
the company was held liable.141 Where gates have been
erected where a company was not obliged to put them, and
are out of order, the company is bound to take more than
ordinary precautions to prevent the public, accustomed to
rely on the gates, from being injured, and is liable for neglect
to do so.1#

8 Nicholson v. Atchison, T. & S. F. R. Co., 55 Mo. App. 593; Wait v.
Burlington, C. R. & N. R. Co., supra; Hungerford v. Syracuse, B. &
N. Y. R. Co., 46 Hun (N. Y.) 339; Chic., B. & Q. R. Co. v. Sierer,
13 Ill. App. 261; Lake Erie & W. R. Co. v. Beam, 60 id. 68; Ill. Cent.
R. Co. v. Arnold, 47 Ill. 173.

™ Magilton v. N. Y. Cent. & H. R. R. Co., 11 N. Y. App. Div. 373;
Chic., B. & Q. R. Co. v. Dannel, 48 Ill. App. 251.

And he is responsible for the negligence of his servants: Ranney v.
Chic., B. & Q. R. Co., 59 Ill. App. 130.

1 Manwell v. Burlington, C. R. & N. R. Co., 80 Ia. 662. And see
Bartlett v. Dubuque & S. C. R. Co., 20 id. 188; Tyson v. K. & D. M.
R. Co., 43 id. 207; Hook v. Worcester & N. R. Co., 58 N. H. 251; Rich-
ardson v. Chic. & N. R. Co., 56 Wis. 347; Indianapolis, P. & C. R. Co. v.
Shimer, 17 Ind. 295.

™ Peoria, D. & E. R. Co. v. Babbs, 23 Ill. App. 454. And see Mears
v. Chic. & N. R. Co., 103 Ia. 203.

© Chic., B. & Q. R. Co. v. Sierer, 13 Ill. App. 261.

“ Taft v. N. Y., P. & B. R. Co., 157 Mass. 297.

4 Connolly v. Cent. Vt. R. Co. 4 N. Y. App. Div. 221. Herrick, J.,
dissented on the ground that a company “should not be liable to the
same extent for an open gate or barway provided for the private use
of adjoining proprietors that it is when a portion of the fence is broken
down, burned or otherwise destroyed.” This case was affirmed in 52
N. E, Rep. 1124.

~ Hleming v. Can. Pac. R. Co., 31 N. B. 318.

674 LIABILITY UNDER THE STATUTES.

Many of the cases hold, however, that where the gate is put
in simply for the land-owner’s use and convenience he, and
not the company, is liable for injuries to animals caused by its
being left open: 1* unless it was left open by the company’s
servants.14# But this does not change the liability of the
company to third persons: as to them it must keep the gate
closed.1#° And in many cases the general rule is laid down
that the land-owner, and not the company, is responsible for
injuries to animals resulting from leaving gates open at pri-
vate crosings.1#® And the owner, by his agreement to main-
tain a gate, may, in any case, exonerate the company from all
liability to him not caused by gross negligence or an inten-
tional act.1*7 Where a gate was left open by a third person,
the company, in the absence of negligence, is not liable, at
least before it has notice of the fact or reasonable time for as-
certaining it: it is not expected to stand perpetual guard over

“ Diamond Brick Co. v. N. Y. Cent. & H. R. R. Co., 58 Hun (N. Y.)
396; Bond v. Evansville & T. H. R. Co., reo Ind. 301; Louisville, N. A.
& C. R. Co. v. Goodbar, 102 id. 596; Davis v. Wabash R. Co., 46 Mo.
App. 477; San Antonio & A. P. R. Co. v. Robinson (Tex. Civ. App.), 43
S. W. Rep. 76; Great Western R. Co. v. Vilaire, rr U. C. C. P. 509.

' Spinner v. N. Y. Cent. & H. R. R. Co., 6 Hun (N. Y.) 600, 67
N.Y. 153.

“Wabash R. Co. v. Williamson, 104 Ind. 154; Galveston, H. & S. A.
R. Co. v. Wessendorf (Tex. Civ. App.), 39 S. W. Rep. 132.

But now, in Indiana, as was said supra, the company is not liable for
any animals going through gates at private farm crossings unless they
were injured or killed by negligence: Hunt v. Lake Shore & M. S. R.
Co., 112 Ind. 69; Pennsylvania Co. v. Spaulding, Ibid. 47; Crum v. Con-
over (Ind. App.), go N. E. Rep. 644.

In Kansas it has been held that the owner of a trespassing animal has
no greater rights than the land-owner: Adams v. Atchison, T. & S. F. R.
Co., 46 Kan. 161; Rouse v. Osborne, 3 Kan. App. 1309.

“° Hunt v. Lake Shore & M. S. R. Co., supra; Truesdale v. Jensen, gt
Ia. 312; Tyson v. K. & D. M. R. Co., 43 id. 207; Hook v. Worcester &
N. R. Co., 58 N. H. 251; Richardson v. Chic. & N. R. Co., 56 Wis. 347;
Rouse v. Osborne, 3 Kan. App. 139.

™ Lake Erie & W. R. Co. v. Weisel, 55 O. St. 155. And see Tex.
& Pac. R. Co. v. Smith (Tex. Civ. App.), 41 S. W. Rep. 83.

CROSSINGS : GATIS. 675

the gate to keep it closed against the act of a third person.'#8
Otherwise, where cattle went through a gate the fastening of
which had been negligently left by the company so that a
stranger passing through could not and did not shut it.14®
But where the owner of stock left them in a fenced pasture
with no one in charge and went to another State, and the ani-
mals went through a gate left open by trespassers and were
negligently injured by a train, it was held that he was not
guilty of contributory negligence and might recover against
the company.’°°

A statute allowing land-owners to construct farm crossings
across a railroad track and, if the track is fenced, to erect
gates, does not repeal a law making railroad companies liable |
for killing stock on an unfenced, or insufficiently fenced,
track.15"

141. Cattle-Guards.—Railway companies are generally re-
quired by statute to construct and keep in repair sufficient
cattle-guards wherever the track is intersected by a high-
way,'5? and, in some cases, wherever the track enters or

“8 Morrison v. Kansas City, St. J. & C. B. R. Co., 27 Mo. App. 418.
And see Binicker v. Hannibal & St. J. R. Co., 83 Mo. 660; Harding
v. Chic., M. & St. P. R. Co., 100 Ia. 677; Tex. & Pac. R. Co. v. Glenn
(Tex. Civ. App.), 30 S. W. Rep. 845; Lambert v. Grand Trunk R. Co.,
28 Low. Can. Jur. 3.

49 Chisholm v. Northern Pac. R. Co., 53 Minn. 122.

*™ Toledo, W. & W. R. Co. v. Milligan, 52 Ind. 505.

™ Louisville, N. A. & C. R. Co. v. Hughes, 2 Ind. App. 68; Ohio &
Miss. R. Co. v. Wrape, 4 id. 108.

“2 Wabash, St. L. & P. R. Co. v. Tretts, 96 Ind. 450; Grand Rapids
& I. R. Co. v. Jones, 81 id. 523; Evansville & C. R. Co. v. Barbee, 74
id. 169; Pittsburgh, C. & St. L. R. Co. uv. Eby, 55 id. 567; Atchison, T.
& S. F. R. Co. v. Shaft, 33 Kan. 521; McGhee v. Guyn, 98 Ky. 200;
Younger v. Louisville & N. R. Co. (Ky.), 41 S. W. Rep. 25; Lake Shore
& M.S. R. Co. v. Sharpe, 38 O. St. 150; Miller v. Northern Pac. R.
Co., 36 Minn. 296; Houston & G. N. R. Co. v. Meador, 50 Tex. 77; Hun-
ter v. Chic., St. P., M. & O. R. Co.. 99 Wis. 613.

But see Layne v. Ohio River R. Co., 35 W. Va. 438.

676 LIABILITY UNDER THE STATUTES.

leaves improved or fenced land.1** But the statutes do not
generally require that guards should be constructed at private
crossings.1°* In New York it was held that they should be
constructed in village streets as well as on country highways,
but it was said that, where the street crossed a railway running
on another street, cattle-guards were not to be constructed
longitudinally along the track so as to impede passage along
the street crossing it.15> A company is not bound to place
guards around a cut away from a public street within city
limits to prevent animals unlawfully grazing there from fall-
ing down the bank.1°* Nor is the company liable where the
highway has not been legally laid out.1°7 And cattle-guards
are not to be constructed where they would be dangerous to
the employees of the company.15* And it was held in a Mis-
sissippi case that, where the stock law was in force, it was.
unnecessary to erect stock gaps and cattle-guards.1" The
company is not obliged to provide places for stock to leave
the track.1® The question of constructing cattle-guards or
fences at or near station grounds will be discussed in the next
section.

The object of a cattle-guard is to insure the safety of both

*™ Mo. Pac. R. Co. v. Morrow, 32 Kan. 217; Kan. City, M. & B. R. Co.
v. Jones, 73 Miss. 397. And see 2 Rap. & Mack. Dig. Ry. Law, 504.
Otherwise, in Georgia: Rossignoll v. Northeastern R. Co., 75 Ga. 354.

™ See Bartlett v. Dubuque & S. C. R. Co., 20 Ia. 188; Pennsylvania Co.
v, Spaulding, 112 Ind. 47; Bond v. Evansville & T. H. R. Co., 100 id. 3o1.

Otherwise, in New Hampshire: Chapin v. Sullivan R. Co., 39 N. H.
564.

* Brace v. N. Y. Cent. R. Co. 27 N. Y. 269. See Vanderkar v.
Rensselaer & S. R. Co., 13 Barb. (N. Y.) 300; Parker v. Same, 16 id.
315.

“ Clary v. Burlington & M. R. Co., 14 Neb. 232.

“ Hunter v. Chic., St. P., M. & O. R. Co., 99 Wis. 613.

™ Pearson v. Chic. B. & K. C. R. Co., 33 Mo. App. 543; Chic. &
E. I. R. Co. v. Modesitt, 124 Ind. 212; Ft. Wayne, C. & L. R. Co. v.
Herbold, 99 id. 91; Pennsylvania Co. v. Lindley, 2 Ind. App. I1t.

™ Canton, A. & N. R. Co. v. French, 75 Miss. 9309.

Gilman v. Sioux City & P. R. Co., 62 Ia. 299.

CATTLE-GUARDS. 677

passengers and animals.’*' Such guards are sometimes con-
sidered a necessary part of the fence which railway companies
are required to construct.1®* But, where a company is liable in
double damages for injuries resulting from a failure to fence,
it was held that a cattle-guard was not an essential portion
of a fence, within the meaning of the statute, and that single
damages only were recoverable for a failure to keep such a
guard in repair.

A cattle-guard means such an appliance as will be effectual.
A pit under the track is not sufficient: the guard should
extend across the entire right of way.1®* Where the track
is fenced, cross-fences are often a necessary part of the cattle-
guard in order to make the enclosure effectual.1®* And where
cattle entered the track from an unfenced space between the
highway and the cattle-guards and were killed, it was held
that the fact that it would have been difficult or expensive
to enclose such space was no excuse.1®* The question is not
could an animal under any circumstances cross the guard,
but rather, will the guard, under all ordinary circumstances,
prevent animals from getting on the track??® So under
the Illinois statute it was held that cattle-guards need be sufh-
cient only to turn ordinary stock under ordinary circum-

Wait v. Bennington & R. R. Co., 61 Vt. 268.

® New Albany & S. R. Co. v. Pace, 13 Ind. 411; Pittsburgh, C. & St.
L. R. Co. v. Eby, 55 id. 567; Grand Rapids & I. R. Co. v. Jones, 81 id.
523; Toledo, St. L. & K. C. R. Co. v. Franklin, 53 Ill. App. 632.

8 Moriarty v. Cent. Ia. R. Co., 64 Ia. 696.

4 Mo. Pac. R. Co. v. Manson, 31 Kan. 337; Heskett v. Wabash, St. L.
& P. R, Co., 61 Ia. 467; Kansas City, M. & B. R. Co. uv. Spencer, 72 Miss.
49; Grace v. Gulf & C. R. Co. (Miss.), 25 South. Rep. 875. And see
Louisville, N. A. & C. R. Co. v. Porter, 97 Ind. 267.

“© Edwards v. Kansas City, St. J. & C. B. R. Co., 74 Mo. 117.

“ Fort Wayne, C. & L. R. Co. v. Herbold, 99 Ind. 91. And see Nelson
v. Great Northern R. Co., 52 Minn. 276.

7 Wait v. Bennington & R. R. Co., 61 Vt. 268.

And see, as to sufficiency, Timins v. Chic., R. I. & P. R. Co, 72
Ta. 94; Strong v. Chic. & N. R. Co., 95 id. 278.

678 LIABILITY UNDER THE STATUTES.

stances.1®° The company is not liable where live-stock jump
over a guard sufficient to turn ordinary cattle.'° A com-
pany was held liable for an injury to a cow which escaped
through a culvert, though at the ordinary height of the
water the culvert was a sufficient barrier: it should have fenced
the line in front of the culvert or constructed a barrier.'”®
But a company acquiring a right of way over lands has been
held not to be bound to plank or cover a culvert or drain so
as to prevent cattle from getting fastened therein, and not to
be responsible for killing a cow thus fastened, if it was duly
diligent.1"?

Where a statute provided that any cattle-guard which
should be approved by the commissioner of railroads should
be sufficient, it was held not to be necessary that the commis-
sioner should approve every guard in use upon the various
railroads, but that a company might use a guard which he ap-
proved by name where such name applied to one of a definite
description.1*”

A company cannot for an unreasonable time permit its
guards to remain filled with snow or ice.17? In a Vermont
case, it was held that the test of the company’s liability was
not whether the guards were “clear of snow or ice” but
whether, in their maintenance, the company was negligent,

Balt. & O. S. W. R. Co. v. Abbott, 59 Ill. App. 609; Chic., B. &
Q. R. Co. v. Evans, 45 id. 79.

*® Chic., B. & Q. R. Co. v. Farrelly, 3 Ill. App. 60; Chic. & A. R. Co.
v. Utley, 38 Ill. 410. And see, to the same effect, Jones v. Chic., B. &
K. C. R. Co., 59 Mo. App. 137; Barnhart v. Chic., M. & St. P. R. Co,
97 Ia. 654. See, however, Green v. St. Paul, M. & M. R. Co., 60 Minn.
134. ;

™ Keliher v. Conn. River R. Co., 107 Mass. 411.

™ Memphis & C. R. Co. v. Lyon, 62 Ala. 71. And see Whitsky v-
Chic. & G. T. R. Co., 62 Mich. 245.

™ La Flamme v. Detroit & M. R. Co., 109 Mich. 509.

Indiana, B. & W. R. Co. v. Drum, ar Ill. App. 331; Dunnigan v.
Chic. & N. R. Co., 18 Wis. 28. And see Chic., B. & Q. R. Co. uv. Ken-
nedy, 22 Ill. App. 308; Robinson v. Chic., R. I. & P. R. Co., 79 Ia. 495:
Giger v. Chic. & N. R. Co., 80 id. 4o2.

CATTLE-GUARDS. 679

which must be determined by the jury under all the circum-
stances in the case, e. g., the location of the road, the position
and condition of the guard, the number of animals which
might reasonably be apprehended to be at large, the pre-
vailing storms, the nature and character of the weather
and all other facts bearing upon the question.174 In Minne-
sota, the rule is that, except under extraordinary circum-
stances, reasonable care does not require the company to re-
move snow and ice from cattle-guards.1"°

It should be shown that the company had notice of the
defect, or by ordinary diligence might have had notice thereof
and have.repaired the same before the injury was inflicted.1"®
Where the company, by agreement with the land-owner.
maintains cattle-guards and wing fences, the grantee of the
company is chargeable with notice of such guards and fences
and is thereby warned that there is some claim of right con-
nected therewith.?""

The land-owner is not negligent in leaving the whole mat-
ter of constructing and repairing cattle-guards to the com-
pany which has impliedly contracted to perform the work.'”*
And a statute authorizing a land-owner to repair cattle-guards
where the company fails to do so, imposes no duty on him
and he is not guilty of contributory negligence with regard
to damage caused by cattle entering his land.*7° But a land-
owner having knowledge that straying animals may pass over
defective cattle-guards and destroy his crops cannot re-

™ Wait v. Bennington & R. R. Co., 61 Vt. 268.

"© Stacey v. Winona & St. P. R. Co.. 42 Minn. 158: Blais v. Minne-
apolis & St. L. R. Co., 34 id. 57.

¥8 Chubbuck v. Hannibal & St. J. R. Co., 77 Mo. 591. And see Kansas
City, F. S. & M. R. Co. v. Grimes, 50 Kan. 655.

™ Toledo, St. L. & K. C. R. Co. v. Fenstemaker, 3 Ind. App. 151.

® Texas & St. L. R. Co. v. Young, 60 Tex. 201. And see Mo. Pac. R.
Co. v. Lynch, 31 Kan. 531.

See, as to the contributory negligence of the plaintiff's tenant, La
Flamme v. Detroit & M. R. Co., 109 Mich. 509.

19 San Antonio & A. P. R. Co. v. Knoepfli, 82 Tex. 270.

680 LIABILITY UNDER THE STATUTES.

cover without using every means an ordinarily prudent per-
son would use to protect them.’

An agreement of a company to keep and maintain cattle-
guards on each side of a person’s land to prevent stock run-
ning at large from trespassing, is limited by the time it should
operate its road over his land and need not be in writing under
the provision of the Statute of Frauds requiring an agreement
not to be performed within one year to be in writing.?81

In some cases, the fact that the animal was in the highway
unlawfully or through the owner’s negligence has been held
not to prevent recovery for an injury resulting from a de-
fective cattle-guard.18* This was formerly the rule in Can-
ada,1*° but the statute has been changed and now the com-
pany is not liable unless the animals got on the track from a
“place where they might properly be.” 1+ And a similar
rule is followed in some of the States.1®

Statutes requiring railroad companies already in existence
to construct cattle-guards are constitutional.18* And a statute
requiring a company to put in a cattle-guard when a land-

* Ward v. Paducah & M. R. Co., 4 Fed. Rep. 862; Mo. Pac. R. Co. v.
Cox, 2 Tex. App. (Civ. Cas.) 217.

* Ark. Midland R. Co. 7. Whitley, 54 Ark. 199.

White v. Utica & B. R. R. Co., 15 Hun (N. Y.) 333; Sheaf v. Same,
2 Thomp. & C. (N. Y) 388; Harwood v. Bennington & R. R. Co., 67 Vt.
664.

See Hance v. Cayuga & S. R. Co., 26 N. Y. 428,—said in 1 Thomp. Negl.
530, to be disregarded in later opinions of the Supreme Court.

™ Pontiac Pac. Junc. R. Co. v. Brady, Montr. L. Rep. 4 Q. B. 346;
Huist v. Buffalo & L. H. R. Co., 16 U. C. Q. B. 290.

™ Nixon v, Grand Trunk R. Co., 23 Ont. 124; Can. Pac. R. Co. v.
Cross, Rap. Jud. Quebec, 3 B. R. 170; McKenzie v. Can. Pac. R. Co.,
14 Leg. News (Can.) 410; Simpson v. Great Western R. Co., 17 U. C.
Q. B. 57; Whitman v. W. & A. R. Co., 6 Russ. & Geld. (Nov. Sco.) 271.

** Chapin v. Sullivan R. Co., 39 N. H. 564; Hill v. Concord & M. R.
Co. (N. H.), 32 Atl. Rep. 766; Maynard v. Norfolk & W. R. Co., 40
W. Va. 331.

“ Thorpe v. Rutland & B. R. Co., 27 Vt. 140; Gulf, C. & S. F. R. Co.
uv. Rowland, 70 Tex. 298.

CATTLE-GUARDS. 681

owner asserts that it is necessary to prevent the depredation
of stock on his farm, is not unconstitutional because it leaves
the determination to the owner.'8? But a statute giving
damages where all stock pass through cattle-guards and com-
mit depredation is unconstitutional as imposing an absolute
liability irrespective of negligence or want of compliance with
a statute.188

142, Where Fences are Necessary; Station Grounds.—The sub-
ject of fencing in cities and villages and at crossings generally
has already been considered.'8® Where a statute requires
fences to be constructed along “occupied lands” only, this
has been held to mean lands adjoining a railway actually or
constructively occupied up to the line of the railway by rea-
son of the actual occupation of some part of the section or lot
by the person who owns it or is entitled to possession of the
whole.1® A statute has been held to require fencing only
where the track runs through or alongside of the land of pri
vate individuals; 191 and another statute has been held to ap-
ply where land is not under cultivation but is occupied by
farmers and forms a part of tracts which were under cultiva-
tion.1®?_ Where a statute requires a company to erect fences
where the road passes along enclosed or cultivated fields or
unenclosed prairie lands, this requires fences on both sides of
the road, but does not extend to timber lands from which
‘timber has been cut, but which are not cultivated.’

Where a company was required to fence, except at places
where the railroad commissioners deemed it unnecessary, it
~was held not to be obliged to fence where the track ran paral-
lel to and fifty feet away from another track, though the com-

” Birmingham Mineral R. Co. v. Parsons, 100 Ala. 662.
*2Tbid. See § 140, supra.

™ Davis v. Can. Pac. R. Co., 12 Ont. App. 724.

* Walsh v. Virginia & T. R. Co., 8 Nev. 110.

* Stimpson v. Un. Pac. R. Co., 9 Utah 123.

™” Tiarks v. St. Louis & I. M. R. Co., 58 Mo. 45.

682. LIABILITY UNDER THE STATUTES.

missioners had not excused it from fencing there.** But
where the duty to fence was imperative it was held to be no
defence that the stock strayed across the unfenced track of
another company and that a fence between the tracks would
be dangerous to human life.?°®

The question of convenience is an important one to be
considered in deciding whether a company has been negli-
gent in failing to fence. Where there was a saw-mill fiity feet
from the track and the intervening ground was used by the
owners of the mill for piling lumber and loading it on cars.
and by the public for passing to and from the mill with logs.
and lumber and piling wood to be sold to the railroad com-
pany, it was held that no fence was necessary and the com-
pany was not liable for the death of an animal that got upon
the track.19° So, where an action was brought to recover
for the loss of a horse and cart by falling into a river through
the negligence of the company in not providing cap-logs
for its pier, it was held that the company might show that
such logs would interfere with the loading of vessels in the
course of its business.1®* And, in general, a company is not
required to fence at places where a fence would interfere with
its own rights in operating its road or transacting its business,
nor where the rights of the public in travelling or doing busi--
ness with the company would be interfered with, nor where
a fence would imperil the lives of its employees.°* And it
was held that it need not fence where the result of fencing”
would be to cut itself off from the use of its own land or
leased property or buildings, although the buildings might
not be in proper use.1°® The burden of proof is on the com--

™ Gallagher v. N. Y. & N. E. R. Co., 57 Conn. 442.

™ Kelver v. N. Y., C. & St. L. R. Co., 126 N. Y. 365.

*° Pittsburg, C. & St. L. R. Co. v. Bowyer, 45 Ind. 496.

* Philadelphia & R. R. Co. v. Ervin, 89 Pa. St. 71.

**8 Evansville & T. H. R .Co. v. Willis, 93 Ind. 507; Donald v. Minne--
apolis, St. P. & S.S. M. R. Co., 113 Mich. 484.

*” Jeffersonville, M. & I. R. Co. v. Beatty, 36 Ind. 15.

WHERE FENCKS AKEK NECESSARY. 633

pany to show that it could not fence on account of danger to
its employees or inconvenience to the public.2%

In a Texas case, however, it was held that where a fence
would not obstruct a street or highway, the company cannot
avoid liability by showing that a fence at that point would
cause much inconvenience to its servants in loading and un-
loading cars and in operating trains.2°' And, by maintain-
ing a fence for years, a company may be estopped to exoner-
ate itself for a failure to repair it on the ground that it would
be dangerous to its employees.?°*

It is on the ground of inconvenience and danger that a
company is excused from erecting fences in the grounds
around its station buildings, with the adjacent tracks and
switches.2°* And it is no defence that the accident occurred
on station grounds, unless it appears that a fence would in-
terfere with business or public convenience.*°* So, the mere
convenience of the company is not a sufficient reason for not
fencing parts of its station grounds which are not required

* Toledo, St. L. & K. C. R. Co. v. Jackson, 5 Ind. App. 547; Indian-
apolis, D. & W. R. Co. wv. Clay, 4 id. 282; Cox v. M.,S.S.M. & ALR.
Co., 41 Minn. tor.

*™ Houston & T. C. R. Co. v. Simpson, 2 Tex. App. (Civ. Cas.) 591.
And see Bradley v. Buffalo, N. Y. & E. R. Co., 34 N. Y. 427; Wabash R.
Co. v. Howard, 57 Ill. App. 66, cited infra.

Chic. & E. I. R. Co. v. Guertin, 115 Ill. 466.

78 Galena & C. U. R. Co. v. Griffin, 31 Ill. 303; Terre Haute & I. R.
Co. v. Grissom, 60 II]. App. 114; Toledo, St. L. & K. C. R. Co. v. Frank-
lin, 53 id. 632; Indianapolis, P. & C. R. Co. v. Crandall, 58 Ind. 365; Ind.,
B. & W. R..Co. v. Quick. 109 id. 295; Bechdolt v. Grand Rapids &
I. R. Co., 113 id. 343; Smith v. Chic, R. 1. & P. R. Co., 34 Ia. 506;
Hooper @. Chic., St. P., M. & O. R. Co., 37 Minn. 52: Jennings v. St.
Joseph & St. L. R. Co., 37 Mo. App. 651; Chic, B. & Q. R. Co. ».
Hogan, 27 Neb. 801: Hyatt v. New York, L. E. & W. R. Co., 64 Hun
(N. Y.) 542: Moses v. Southern Pac. R. Co., 18 Oreg. 385; Gulf, C. &
S. F. R. Co. v. Wallace, 2 Tex. Civ. App. 270; Swanson v. Melton, 4 Tex.
App. (Civ. Cas.) 450: Roberts 7. Great Western R. Co., 4 C. B.N. S.
506.

*4 Chouteau v. Hannibal & St. J. R. Co., 28 Mo. App. 556; Peyton v.
Chic., R. I. & P. R. Co., 70 Ia. 522. And see Brandenburg v. St. Louis
& S. F. R. Co., 44 Mo. App. 224.

684 TIABILITY UNDER THE STATUTES.

to be kept open for the convenience of the public in the use
of the road.2°° And it was held in New York that the fact that
a railroad crossing was at or near the station and that to place
a cattle-guard there would inconvenience the company will
not excuse it from complying with the positive requirements
of the statute.2°* But, ordinarily, cattle-guards need not be
constructed at stations.2°* Nor is a company negligent in
not placing fences or screens in station grounds to prevent
the frightening of horses.*°8

The question of the proper extent of station grounds is one
for the jury to determine.?°® But this cannot be done col-
laterally, where the material facts are undisputed.?*° Station
grounds prima facie include all the right of way left unfenced
between the switches and cattle-guards on either side of the
platform, with the switches and side-tracks, unless they are
shown to be unreasonable in extent.211_ Land not necessary
for station grounds or switch-yards, though used as such,
must be fenced.*1® And an indefinite intent to use ground ©
for a public purpose is not sufficient to relieve the company
from liability.?1%

*° Wabash R. Co. v. Howard, 57 Ill. App. 66.

*“ Bradley v. Buffalo, N. Y. & E. R. Co., 34 N. Y. 427.

*" Robertson 7. Atlantic & P. R. Co., 64 Mo. 412; Pearson v. Chic.,
B.& K.C.R. Co., 33 Mo. App. 543: Pierce z. Andrews, 13 O. Cire.Ct. 513.

™ Flagg v. Chic, D. & C. G. T. J. R. Co., 06 Mich. 30; Simkin v.
London & N. W. R. Co., 21 Q. B. D. 453:

*°'Wabash R. Co. v. Howard, supra; Pearson v. Chic., B. & K. C. R.
Co., supra; Dinwoodie v. Chic., M. & St. P. R. Co., 70 Wis. 160.

”’ McGrath v. Detroit, M. & M. R. Co., 57 Mich. 555,—followed in
Rinear v. Grand Rapids & I. R. Co., 70 id. 620.

™ Mills & Le Clair Lumber Co. v. Chic., St. P., M. & O. R. Co., 04
Wis. 336.

™ Atchison, T. & S. F. R. Co. v. Shaft, 33 Kan. 521; Chic, R. I. &
P, R. Co. @ Green, 4 Kan. App. 133; Tex. & Pac. R. Co. v. Billingsly
(Tex. Civ. App.), 37 S. W. Rep. 27; Rinear v. Grand Rapids & I. R.
Co., supra.

See Eaton v. McNeilly, 31 Oreg. 128, where the fact that the station
grounds were larger than the law allowed was held immaterial.

™" Cox v. Minneapolis, S. S. M. & A. R. Co., 41 Minn. ror,

WHERE FENCES ARE NECESSARY. 685

Failure to fence the following places has been held not to
constitute negligence on the part of the company:—the engine
house, machine shop, car house and wood yard; *!* as much
of the track and grounds outside of the switches as was nec-
essary for reaching the side-tracks upon which were coal
sheds; ?!° grounds at a flag station at which trains were regu-
larly stopped whenever there were pasengers, freight or ex-
press to be taken, though no station building was erected
thereon ; 7*° places used for loading or discharging freight ;?17
a station used as such only at irregular intervals by picnic
parties and for camp meetings.*!®

The company was held liable where the following places
were not fenced :—a side-track and platform, where there was.
no station building and where no tickets were sold or freight
billed; 4° a place at some distance from the station where
some freight was received and discharged.22° Evidence that
an animal was killed on a branch road, one hundred yards
from the station, near a siding, was held not to be conclusive
proof that the track could not have been fenced.?#4

It is the duty of the company to maintain suitable guards
and fences to prevent an animal from passing from the station
grounds to the space on the track outside of such grounds.*”?
In Illinois, the company must fence at a station not within the
limits of an incorporated town.”%

™ Indianapolis & C. R. Co. v. Oestel, 20 Ind. 231.

See, also, Peters v. Stewart, 72 Wis. 133.

“8 Grondin v. Duluth, S. S. & A. R. Co., 100 Mich. 598.

4° Schneekloth v. Chic. & W. M. R. Co., 108 Mich. I.

27 Cornell v. Manistee & N. E. R. Co. (Mich.), 75 N. W. Rep. 472.

48 Stewart v. Pennsylvania Co., 2 Ind. App. 142.

“° Anderson v. Stewart, 76 Wis. 43. And see Jaeger v. Chic., M. & St.
P. R. Co., 75 id. 130; Southern Kansas R. Co. v. McKay (Tex. Civ. App.),
47 S. W. Rep. 479.

20 Moser v. St. Paul & D. R. Co., 42 Minn. 480.

™ Gulf, C. & S. F. R. Co. v. Weems (Tex. Civ. App.), 38 S. W. Rep.
1028,

8 Kobe v. Northern Pac. R. Co., 36 Minn. 518.

“2 Chic., M. & St. P. R. Co. v. Dumser, rog Il. 4o2.

686 LIABILITY UNDER THE STATUTES.

The burden of proof is on the defendant to show that the
animal was killed within the station grounds.”2* Where
this is shown, there can be no recovery in the absence of evi-
dence showing the want of ordinary care.*?*

148. Action; Parties; Pleading.—It was held in an Illi-
nois case that an action for injuries to stock caused by the
failure of a railroad company to maintain fences along the
track is transitory in its nature, whether brought under the
statute or at common law.??6 But under the Indiana statute
such an action is local and must be brought in the county in
which the injury occurred.??* The owner of animals may, as
a rule, in such cases elect whether to base his action upon the
statute or upon common-law grounds of negligence.228 An
action based on, and claiming double damages under, the
fencing statutes of one State cannot be maintained in another
State.2’° Where sheep, getting through a defective fence,
were killed by a train, the engineer of which had orders to
travel at a certain rate of speed per hour, it was held that the
remedy was in case, not in trespass.?°°

A railroad company is not liable to its own tenants for the
loss of cattle caused by its failure to fence its land.234_ But
where, owing to a failure to fence, an animal gets on a track

™ Wilder v. Chic. & W. M. R. Co., 70 Mich. 382.

® Internat. & G. N. R. Co. v. Dunham, 68 Tex. 231; Swearingen v. Mo.,
K. & T. R. Co., 64 Mo. 73; Robertson v. Atlantic & P. R. Co., Ibid. 412;
Indianapolis & St. L. R. Co. v. Christy, 43 Ind. 143; Cleaveland v. Chic.
& N. R. Co., 35 Ia. 220.

“Til. Cent. R. Co. v. Swearingen, 33 Ill. 280.

“Terre Haute & I. R. Co. v. Pierce, 95 Ind. 496; Louisville, N. A.
& C. R. Co. v. Davis, 83 id. 89. The complaint should aver that the
animal was killed or injured in the county in which suit is brought:
Toledo, W. & W. R. Co. v. Milligan, 52 Ind. sos. And see Jacksonville,
T. & K. W. R. Co. v. Wellman, 26 Fla. 344.

™ Rockford, R. I. & St. L. R. Co. v. Phillips, 66 Ill. 548.

™ Bettys v. Milwaukee & St. P. R. Co., 37 Wis. 323.

“™ Sharrod v. London & North-Western R. Co., 4 Exch. 580.

™ Potter v. N. Y. Cent. & H. R. R. Co., 60 Hun CN. Y.) 313.

ACTION ; PARTIES; PLEADING. 687

and causes the derailment of a train, an employee injured may
sue the company,—the statute being designed to protect per-
sons on trains as well as cattle owners.?*? He cannot, how-
ever, in such a case recover from the owner of the animal.2%*

The question as to who are proper defendants to a common-
law action based on negligence has been already discussed,2*+
and many of the decisions thereon are applicable to statutory
actions based on the failure to fence. In New York the com-
pany owning the road is liable for the omission to erect fences
and cattle-guards, and not the company having permission
to run trains over the road, by lease or otherwise ; ?*° though
this rule does not apply where the charter rights of the latter
company are practically equivalent to ownership.22* In some
States both the company owning and the company operating
the road are liable.*87 In others, the company owning the
road remains liable for the killing of animals by another com-
pany on unfenced portions of the road.*** In Iowa, the rule
was formerly similar to that in New York, but by later legis-

™ Atchison, T. & S. F. R. Co. v. Reesman, 60 Fed. Rep. 370. The
defence that the injury was caused by the negligence of a fellow-servant
was held not applicable, as the duty cast by the statute on the company
cannot be delegated by it to its servants.

*3 Child v. Hearn, L. R. 9 Ex. 176. ** See § 135, supra.

> Edwards wv. Buffalo, R. & P. R. Co., 8 N. Y. App. Div. 390; Parker
v. Rensselaer & S. R. Co., 16 Barb. (N. Y.) 315.

*5 Tracy v. Troy & B. R. Co., 55 Barb. (N. Y.) 529, as distinguished in
Edwards v. Buffalo, R. & P. R. Co., supra. This case was affirmed in
38 N. Y. 433.

*7 Bast St. Louis & C. R. Co. v. Gerber, 82 Ill. 632; Ill. Cent. R. Co. v.
Kanouse, 39 id. 272; Sinclair v. Mo., K. & T. R. Co., 70 Mo. App. 588;
Price v. Barnard, Ibid. 175; Eaton v. Oreg. R. & Nav. Co., 19 Oreg. 391;
Oreg. R. & Nav. Co. v. Dacres, 1 Wash. 195. See McCall v. Chamber-
lain, 13 Wis. 637; Vermont R. Co. v. Paquette, 2 Leg. News (Can.) 390.
See, also, 58 Amer. St. Rep. 152 n.

28 Fontaine v. South. Pac. R. Co., 54 Cal. 645; Kansas City, Ft. S. &
G. R. Co. v. Ewing, 23 Kan. 273. And see Wymanv. Penobscot & K. R.
Co., 46 Me. 162.

A company that has leased its road is liable to the owner of a field for
damages to crops caused by its failure to construct proper cattle-guards:
St. Louis, W. & W. R. Co. v. Curl, 28 Kan. 622.

688 LIABILITY UNDER THE STATUTES.

lation liability has been extended to lessees operating or run-
ning the road.28° In Indiana, the lessee running the road in
its “own name” is not liable for killing stock on an unfenced
track; otherwise, where it runs it “in the corporate name of
the owner”: there it is liable jointly and severally with the
owner.”?°

Where the company has gone into the hands of a receiver,
he is the proper defendant.2* Under the Indiana statute an
action lies against the company for an injury resulting from
its failure to fence though the road is controlled and run by a
receiver in bankruptcy.24* Under the Kansas statute the
company may be sued after the receiver is discharged for
stock killed while the road was in his hands, where the com-
pany might have fenced before he was appointed but failed
to do so.?#*

A contractor for the construction of a road is liable as
an “agent of the corporation” when he throws down fences
by which animals go on the track and are killed.4* But a
company is not liable for stock escaping from unfenced land
and killed by the employees of the contractor building the
road.74°

™ See Clary uv. Ia. Midland R. Co., 37 Ia. 344; Stephens v. Davenport
& St. P. R. Co., 36 id. 327; Stewart v. Chic. & N. R. Co., 27 id. 282;
Liddle v. Keokuk, Mt. P. & M. R. Co.. 23 id. 378.

* Pittsburgh, C. & St. L. R. Co. v. Bolner, 57 Ind. 572. And see Cinc.,
H. & I. R. Co. v. McDougall, 108 id. 179; Pittsburgh, C., C. & St. L.
R. Co. v. Thompson, 21 Ind. App. 355.

“Tf it is sought to hold the owner of the road liable for its lessee’s act,
the relation between the roads must be pleaded, with the appropriate facts
necessary to create the liability’: Lake Erie & W. R. Co. v. Rooker,
13 Ind. App. 600.

™” Brockert v. Central Ia. R. Co., 82 Ia. 369; Internat. & G. N. R. ea
v. Bender, 87 Tex. 99.

” Indianapolis, C. & L. R. Co. uv, Ray, 51 Ind. 260.

*” Kan. Pac. R. Co. v. Wood, 24 Kan. 610.

Gardner v. Smith, 7 Mich. 410. And the fact that the owner turned
his sheep into the field while the contractor was throwing down fences
was held not to affect the liability of the latter: Ibid.

* Gordon v. Chic., S. F. & C. R. Co., 44 Mo. App. 201.

ACTION ; PARTIES ; PLEADING. 689

A company is liable only for injuries to animals caused by
trains on its own line owing to a failure to fence the track
and not for injuries caused by the trains on a parallel and con-
tiguous line.*** But a company owning the central tracks
among a number of parallel ones is liable for the death of an
animal by one of its trains owing to a failure to fence the ex-
terior tracks.?4*

The plaintiff in an action under the statute should allege
that the road was not fenced at the place where the animals
entered, and no other negligence need be averred.*4#* But
the failure to fence should appear from the statement, by im-
plication at least, to have been the cause of the killing.24® An
averment that the animal was killed at an unfenced place is
not sufficient, the place of entry being the decisive test.?°°
But this defect may be cured by the verdict.?54

Some of the cases go further and hold that the plaintiff
must also negative any statutory exceptions and allege that
the animals entered at a place where the company could have

“6 Fouchon v. Ontario & Quebec R. Co., 11 Leg News (Can.) 74.
Daoust v. Can. Pac. R. Co., 15 id. 382.
“7 Kelver v. N. Y., C. & St. L. R. Co., 126 N. Y. 365.

See Gallagher v. N. Y. & N. E. R. Co., 57 Conn. 442, cited in § 142.
supra.

“8 Terre Haute, A. & St. L. R. Co. v. Augustus, 21 Ill. 186; Balt., P-
&C. R. Co. v. Anderson, 58 Ind. 413; Toledo, W. & W. R. Co. v. Weaver,
34 id. 298; Kan. Pac. R. Co. v. Taylor, 17 Kan. 566; Bigelow v. North
Missouri R. Co., 48 Mo. 510; Gulf, C. & S. F. R. Co. v. Washington,
49 Fed. Rep. 347; 1 Rap. & Mack Dig. of Ry. Law 257. See Indian-
apolis & V. R. Co. v. Sims, 92 Ind. 496.

Where there is no statute requiring railroad companies to fence, the
omission to do so is not prima facie evidence of negligence: Stevenson v.
N. O. Pac. R. Co., 35 La. Ann. 498.

“© Dryden v. Smith, 79 Mo. 525; Bowen v. Hannibal & St. J. R. Co, 75
id. 426; Toledo, P. & W. R. Co. v. Darst, 52 Ill. 89. And see, as to a
cattle-guard, Riley v. Chic., M. & St. P. R. Co., 104 Ta. 235.

*™ T.ouisville, N. A. & C. R. Co. v. Quade, 91 Ind. 295.

But see Jeffersonville, M. & I. R. Co. v. Chenoweth, 30 id. 366. And
see the cases cited in § 144, infra, as to the presumption: that the place
of killing was the place of entry.

1 T ouisville, N. A. & C. R. Co. v. Goodbar, 102 Ind. 596.

44

690 LIABILITY UNDERK THE STATUTES.

fenced. and were required by law to do so.?°* This is the
rule in Missouri where the plaintiff seeks to recover double
damages under the statute, but not where he sues in an ordi-
nary action for single damages only.***? But most of the cases
hold that the fact that the company need not have, or could
not have, fenced is a matter of defence only and one that the
plaintiff is not required to negative in his statement.*°* The
fact that a sufficient length of time had not elapsed, after the

fence became defective, to allow the company an opportunity
to repair it is also a matter of defence and need not be nega-

tived by the plaintiff.2°°

If the land-owner has received a specific sum for fencing
along the line or has agreed to. build and maintain a lawful
fence, or has received compensation for so doing by way of
damages in the condemnation of the land, the burden is on
the company to show such fact in defence, and not on the
plaintiff to negative it.2°° Where a statute required cattle-
guards to be erected at certain points, the petition in an action

*““Ohio & Miss. R. Co. v. Brown, 23 Ill. 94; Chic., B. & Q. R. Co.
wv. Carter, 20 id. 390.

* Ward v. St. Louis, I. M. & S. R. Co., gt Mo. 168; Mayfield v. St.
Louis & S. F. R. Co., Ibid. 296; Radcliffe v. St. Louis, I. M. & S, R. Co.,
90 id. 127; Tickell v. Same, Ibid. 296; Jones v. Same, 44 Mo. App. 15;
Brassfield v, Patton, 32 id. 572; Briscoe v. Mo. Pac. R. Co., 25 id. 468.

See Hamilton v. Mo. Pac. R. Co., 87 Mo. 85, where it was held that,:
in an action to recover double damages, the burden is on the company to
show any circumstances exempting it from its duty to fence.

™ Cine. L, St. L. & C. R. Co. v. Parker, 109 Ind. 235; Evansville & T.
H. R. Co. v. Mosier, ror id. 597; Jeffersonville, M. & I. R. Co. v. Lyon,
72 id. 107; Ohio & M. R. Co. v. McClure, 47 id. 317; Lake Erie & W.
R. Co. v. Rooker, 13 Ind. App. 600; Un. Pac. R. Co. v. Dyche, 28 Kan.
200; Internat. & G. N. R. Co. v. Dunham, 68 Tex. 231; Blomberg v.

Stewart, 67 Wis. 455; Cox v. Minneapolis, S.S. M. & A. R. Co., 41 Minn.
IOI.

* Busby v. St. Louis, K. C. & N. R. Co., 81 Mo. 43; Jeffersonville, M.
& I. R. Co. v. Sullivan, 38 Ind. 262.

See Perry v. Dubuque S. R. Co., 36 Ia. 102; Townsley v. Mo. Pac;
R. Co., 89 Mo. 31.

“Toledo, P. & W. R. Co. v. Pence, 68 Ill. 524.

ACTION > PARTIES 5 PLEADING. 691

based on a failure to keep a cattle-guard in repair was held
demurrable for not alleging that the guard was one that the
defendant was required to keep in repair.?*7

General allegations of the continuous operation of the road
and the continuous neglect to fence it and that damages re-
sulted therefrom, are sufficient to authorize a recovery for
such natural mischiefs as invariably follow the destruction of
fences and exposure of lands and cannot easily be itemized.7°§
An allegation that the damage was caused by the defendant’s
failure to maintain a good and sufficient fence will cover any
defect in the fence without special mention.**® But an aver-
ment that a barbed-wire fence was so constructed as to create
a snare and that stock were injured on the wires was held not
to charge that the fence was negligently constructed.?°°

A petition uniting a cause of action for not maintaining
fences, for failure to signal and for negligence, has been held
bad for duplicity.2°! Otherwise, where a petition alleged a
failure to maintain fences with an opening and gates therein,
and to maintain cattle-guards: the plaintiff might recover on
proof of either charge.*®* But allegations of negligence in
such cases may be treated as surplusage and the action re-
garded as a statutory one for failure to fence.***

An allegation that the road was “not fenced according to
law” was held insufficient, as stating a mere conclusion of
law.264 Otherwise, where the allegation was that the road
was “not securely fenced as required by law.” ?°

It has been held that in an action for the death of an ani-

*7 Southern R. Co. v. Harrell (Ga.), 30 S. E. Rep. 821.

*8 Grand Rapids & I. R. Co. v. Southwick, 30 Mich. 444.

*° McCoy v. Southern Pac. R. Co. (Cal.), 26 Pac. Rep. 629.

2 Texas M. R. Co. v. Hooten (Tex. Civ. App.), 50 S. W. Rep. 499.
22 Harris v. Wabash R. Co., 51 Mo. App. 125.

22 Woods v. Mo., K. & T. R. Co., 51 Mo. App. 500.

28 Jeffersonville, M. & I, R. Co. v. Lyon, 55 Ind. 477.

4 Indianapolis, P. & C. R. Co. v. Bishop, 29 Ind. 202.

*° Indianapolis, B. & W. R. Co. v. Lyon, 48 Ind. 119.

692 LIABILITY UNDER THE STATUTES.

mal owing to a failure to fence, the acts of the plaintiff ex-
cusing such neglect are not available under a general
denial.2®* A tender of damages pleaded as a distinct defence
admits that the company ought to have fenced.?*7

144, Evidence; Damages.— Although the material fact in the
plaintiff's case is the entry of his animals on the defendants’
track at a place where it should have been fenced, it has been
held that, where the evidence shows the injury or killing to
have occurred at an unfenced place, it will be presumed that
the animals entered on the track at that spot.2°* And, in
general, the plaintiff is not bound to show by positive evi-
dence where the animals entered: it will be sufficient if that
fact can be inferred.2®® But, in the absence of some kind of
evidence, there can be no presumption as to the place of in-
jury.27° If the place of entry was one which the company
was required to fence, and was capable of being fenced, the
presumption is that the company had done its duty in regard
to fencing it.27! Where the road was not fenced, it will be
presumed that the injury was caused by the failure to fence.?7?
Where the statute provides that the failure to fence is prima
facie evidence of negligence, proof that the train was running

* Kingsbury v. Chic., M. & St. P. R. Co., 104 Ia. 63.

*" Taylor v. Chic., St. P. & K. C. R. Co., 76 Ia. 753.

*® Wabash R. Co. v. Pickrell, 72 Ill. App. 601; Patrie v. Oreg. Short-
Line R. Co. (Ida), 56 Pac. Rep. 82; Asher v. St. Louis, I. M. & S. R.
Co., 89 Mo. 116; Duke v. Kansas City, F. S.& M. R. R. Co., 39 Mo. App.
105; Pearson v. Chic., B. & K. C. R. Co., 33 id. 543; McGuire v. Mo. Pac.
R. Co., 23 id. 325. See Brenner v. Green Bay, S. P. & N. R. Co., 61
Wis. 114.

® Evansville & T. H. R. Co. v. Mosier, ror Ind. 597.

Otherwise, where it is proved that the animals were killed where the
company was not obliged to fence: Sullivan v. Oreg. R. & Nav. Co., 19
Oreg. 319.

™ Croddy v. Chic., R. I. & P. R. Co., or Ia. 508.

™ Louisville, N. A. & C. R. Co. wv. Quade, gt Ind. 295.

™ Wood v. Kansas City, F. S. & M. R. Co., 43 Mo. App. 294; Mayfield
v. St. Louis & S. F. R. Co., 9t Mo. 206.

EVIDENCE ; DAMAGES. 693

at a lawful rate of speed and with proper appliances and that
the collision was unavoidable, will overcome the presump-
tion of negligence.?”*

Where the action is brought for common-law negligence,
the fact that the road was not fenced cannot be shown.?7*
And, conversely, where the petition sets up merely that the
injury was caused by the want of a fence, the plaintiff is not
entitled to have the question of general negligence adjudi-
cated.275

Where the facts are undisputed, the question of the neces-
sity of fencing is one of law for the court.2"° Where the evi-
dence as to such necessity is conflicting, the verdict of the
jury will not be disturbed.?””

Where the fence has been shown to be insecure and notsuch
as good husbandmen generally keep, it need not be shown
that the particular part where the stock passed was inse-
cure.278 Where the evidence fails to show that defects in a
fence or crossing had any bearing on the question of the de-
fendant’s negligence, evidence of such defects is inadmis-
sible.27° Evidence of repairs made by the company to a gate
after cattle were killed, owing, as alleged, to the bad condition
of the gate, is admissible.?®° But evidence of the character
and kind of fence subsequent to the injury is not admissible
without showing that there had been no change in its con-

8 Dickey v. North. Pac. R. Co., 19 Wash. 350.

** Pittsburg, C. & St. L. R. Co. v. Stuart, 71 Ind. 500; Dickey v. North.
Pac. R. Co., supra.

28 Acbach v. Chic., B. & Q. R. Co., 74 Ia. 248.

7 Hyatt v. New York, L. E. & W. R. Co., 64 Hun (N. Y.) 542.

27 Terre Haute & I. R. Co. v. Schaeffer, 5 Ind. App. 86. And see
Snook v. Clark, 20 Mont. 230.

*8 T ouisville, N. A. & C. R. Co. v. Spain, 61 Ind. 460.

See, as to evidence of insecurity, McGuire v. Ogdensburgh & L. C. R.
Co., 18 N. Y. Suppt. 313.

*® Galveston, H. & S. A. R. Co. v. Dyer (Tex. Civ. App.), 46 S. W.
Rep. 841.

Page y. Great Eastern R. Co., 24 L. T. N. S. 585.

694 LIABILITY UNDER THE STATUTES.

dition since the injury.?8! Where the company claims that
the animal was such that a good and lawful fence would be no
protection against it, the burden is on the compay to show
this.28?

The bad condition of fences in other places is not a material
fact.288 But evidence of the insufficiency of a similarly con-
structed cattle-guard some miles away is admissible.?8* So,
evidence is admissible that the same make of cattle-guards is
in general use among railways and is regarded as being the
best-known make.?8> But in an action against a company
for injuries to crops resulting from a defective cattle-guard it
was held that evidence that another guard. similarly con-
structed, had proved sufficient, was properly rejected.?*°
Evidence that other animals had got on the track owing to
the alleged defects in a fence or cattle-guard is admissible.?57

It is proper to ask competent witnesses whether a particu-
lar fence was such a one as good husbandmen usually keep.?88
But the mere opinion of a witness that a bank was a good pro-
tection was held not admissible.28° And it has been held
that witnesses cannot testify as to the sufficiency of a cattle-
guard: their testimony should be confined to its actual con-
dition, leaving the question of sufficiency for the jury.2% So,

™ Brentner v. Chic., M. & St. P. R. Co., 58 Ia. 625.

Mo, Pac. R. Co. v. Bradshaw, 33 Kan. 533. And see Gulf, C. &
S. F. R. Co. v. Hudson, 77 Tex. 404, where it was held that a company
that has not fenced its road cannot show that the killing would have
occurred even if there had been a fence.

™ Chic., B. & Q. R. Co. v. Farrelly, 3 Ill. App. 60.

™ New York, C. & St. L. R. Co. vw. Zumbaugh, 11 Ind. App. 107.

™ Lake Erie & W. R. Co. v. Murray, 60 Ill. App. 274.

*’ Downing v. Chic., R. T. & P. R. Co., 43 Ia. 06.

™ New York, C. & St. L. R. Co. v. Zumbaugh, supra; Chic. & N. R.
Co. v. Hart, 22 Ill. App. 207; Lake Erie & W. R. Co. »v. Murray, supra;
Bowen v. Flint & P. M. R. Co., 110 Mich. 445; Jebb v. Chic. & G. T.
R. Co., 67 id. 160.

™ Louisville, N. A. & C. R. Co. v. Spain, 61 Ind. 460.

™ Veerhusen v. Chic. & N. R. Co., 53 Wis. 680.

™ Kansas City, M. & B. R. Co. v. Spencer, 72 Miss. 491; Grace v, Gulf
& C. R. Co. (Miss.), 25 South. Rep. 87s.

EVIDENCE ; DAMAGES. 695

the testimony of an expert that, in his opinion, a cattle-guard
or barrier was necessary at a particular point, is incompe-
tent.2*? Likewise, the opinion of an expert that a cattle-guard
could. not have been maintained without injury to em-
ployees.*°* In an Illinois case it was held that a witness hav-
ing no more knowledge of cattle-guards than is possessed by
ordinarily intelligent and observant farmers living by a rail-
road, is not competent to testify as an expert as to the suffici-
ency of a guard.?%8

It was held in an Indiana case to be no defence that the
company had paid the owner for fencing the land as part con-
sideration for the right of way.29* But, in Georgia, an award
of land damages showing that the land-owner received com-
pensation for the increased expense of fencing, incurred by
reason of the construction of the railroad, was held admissible
in defence, as showing his liability for the consequences of
defects in the fences.2%

A release in a right-of-way deed of all damages by reason
‘of the “location, construction and operation” of the railway
over the lands was held not to constitute a defence to an
action by the grantor for damages for the killing of stock
owing to the failure to build a statutory fence.*%®

A statute making a railroad company liable for all the con-
sequences of its failure to fence is not unconstitutional.?**
Nor is a statute making a company liable in double damages.

7 Amstein v. Gardner, 134 Mass. 4.

™ Chic. & E. I. R. Co. v. Modesitt, 124 Ind. 212; Pennsylvania Co. v.
Lindley, 2 Ind. App. 111.

The burden of showing that a cattle-guard or fence would have been
dangerous to employees is on the company: Toledo, St. L. & K. C. R.
Co, wv. Jackson, 5 Ind. App. 547.

8 Take Erie & W. R. Co. v. Helmericks, 38 Tl. App. 14t.

4 New Albany & S. R. Co. v. McNamara, 11 Ind. 543.

™ Georgia R. & Bkg. Co. v. Anderson, 33 Ga. 110.

© Stoutimore v. Chic.,.M. & St. P. R. Co., 39 Mo. App. 257.

. ™ Minneapolis & St. L. R. Co, v. Emmons, 149 U. S. 364; Bielenberg
@. Mont. Un. R. Co., 8 Mont. 271.

696 LIABILIYY UNDER THE STATUTES.

for such failure unconstitutional as a denial of the equal ‘pro-
tection of the law.2°8 Double damages in such a case may be
recovered not only for the depreciation in value of the stock
resulting from their injuries but also for the value of the care
and attention properly bestowed in curing them.2°? The
proper practice has been said to be for the jury to find a ver-
dict for single damages and the court may then render judg-
ment for double damages.2°° It has been held that, where
jurisdiction is dependent on the amount in dispute, it is gov-
erned by the sum claimed as single damages and not by that
amount doubled.3%!

The measure of damages is the value of the cattle killed, and
not the cost of erecting and maintaining a secure fence.?%?
The expense of keeping watch to guard cattle from straying
and of the diminution in value of the adjoining land by reason
of the failure to fence, falls within the police power of a
State.°°? But where the statute limits the damages to in-
juries caused by the train, expenses incurred in watching or
herding cattle before the accident on account of the bad state
of the fences are not recoverable.2°* The company is not lia-
ble, by reason of its failure to fence, for the loss of flesh of

8 Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26; Mo. Pac.
R. Co. v. Humes, 115 id. 512; Spealman v. Mo. Pac. R. Co., 71 Mo. 434;
Tredway v. S. C. & St. P. R. Co., 43 Ia. 527.

But, see Atchison & N. R. Co. v. Baty, 6 Neb. 37; Denver & R. G.
R. Co. v. Outcalt, 2 Colo. App. 395.

™ Manwell v. Burlington, C. R. & N. R. Co., 80 Ia. 662.

*° Wood v. St. Louis, K. C. & N. R. Co., 58 Mo. 109.

But see Memphis & L. R. Co. v. Carlley, 39 Ark. 246, cited in § 137,
supra.

| Williams v. Hannibal & St. J. R. Co., 80 Mo. 507.

™ Chic. & A. R. Co. vw. Barnes, 116 Ind. 126. So, of a cattle-guard:
Ind. Cent. R. Co. v. Moore, 23 id. 14.

°° Minneapolis & St. L. R. Co. v. Emmons, 149 U. S. 364. And see
Raridan v. Cent. Ia. R. Co., 69 Ia. 527; Nelson wv. St. Louis & S. F.
R. Co., 49 Kan. 165; Chic, K. & N. R. Co. v. Behney, 48 id. 47.

™ Young v. Erie & H. R. Co., 27 Ont. 530; Fouchon v. Ontario &
Q. R. Co., 11 Leg. News (Can.) 74.

EVIDENCE ; DAMAGES. 697
cattle caused by fright when they were on the company’s
land.205

It was held in a Tennessee case that in an action by the
company against the owner of the abutting land for removing
a fence which it was bound to maintain, it could not recover
the value of the stock of a third person for which it had paid,
as the killing of such stock was not a direct consequence of
the removal of the fence.2°* But, in an Iowa case, where
the defendant wrongfully removed a gate which the plaintiff
company had erected to keep animals off its right of way over
the former’s Jand, and the animal of a third person was in-
jured, and the plaintiff, by reason of its negligence in not re-
placing the gate, was compelled to pay the value of such ani-
mal, it was held that the plaintiff's negligence did not consti-
tute the omission of any duty which it owed the defendant,
and that it could recover from the latter the amount paid for
the animal.?°”

In Texas it was held that the damages to which one was
entitled who was cut off from reaching his cattle on the op-
posite side of a railroad track by the company’s wrongful
closing up of gates, were the additional expense of feeding
the cattle by another and more circuitous route.>°*

A company failing to construct cattle-guards is liable for
resulting injuries to crops by cattle to the extent of the actual
value of the crops destroyed.2°? A reasonable compensation
should be allowed for the time and labor necessarily expended
in trying to save the crops from destruction and the expense
of fitting them for market, and the value of the portion saved,

®® Dooley v. Mo. Pac. R. Co., 36 Mo. App. 381.

°° T ouisville & N. R. Co. v. Guthrie, 10 Lea (Tenn.) 432.

°% Chic. & N. R. Co. v. Dunn, 59 Ia. 619.

% Tex. & Pac. R. Co. v. Newton (Tex. Civ. App.), 30 S. W. Rep.

475.
* Donald v. St. Louis, K. C. & N. R. Co., 44 Ia. 157; St. Louis, W. &

W. R. Co. v. Curl, 28 Kan. 622; Houston, E. & W. T. R. Co. v. Adams,
63 Tex, 200.

698 LIABILITY UNDER THE STATUTES.

if.any, should be deducted.#!® But the plaintiff ought not to
be allowed compensation beyond the loss that might have
been occasioned had no effort to protect his crop been made
by him.322

Where a company breaks its contract to fence its right of
way, the land-owner may recover the cost of erecting a fence,
damages for animals killed and for injuries by trespassing ani-
mals and loss of pasturage.3??

In Illinois it has been held that damages for the killing
of stock through negligence are compensatory only. To-
authorize more, circumstances of aggravation must be shown,
and interest is not recoverable.2!3 In other States interest
is recoverable on the value of an animal killed by reason of
failure to fence.31#

The question as to whether or not a reasonable attorney’s.
fee is to be allowed has been already discussed.315

se Smith v. Chic., C. & D. R. Co., 38 Ia. 518.

= St. Louis & S. F. R. Co. v. Ritz, 33 Kan. 404.

*8 Louisville, N. A. & C. R. Co. v. Summer, 106 Ind. 55.

™° Toledo, P. & W. R. Co. v. Johnston, 74 Ill. 83.

™ Lackin v. Delaware & H. Canal Co., 22 Hun (N. Y.) 309; Jebb v
Chic. & G. T. R. Co., 67 Mich. 160.

‘See, also, the cases on interest cited in § 137, supra.

™5 See § 137, supra.

TABLE OF CASES.

Abbett. v. Johnson Co.
Commrs
Abbott v. Freeman
Aberdeen Arctic Co. v. Sut-
ter
Abrams La Milwadhee, L. S.
& WwW Co., 469, 470,
Acker v. eae Co.
Adam vy. Richards
Adams v. Adams
v. Atchison, T. & S. F.
R. Co.
vy. Burton
v. Hall
v. Natick
v. Nichols
v. Snyder
Adams Exp. Co. v. Tackson
Adcock v. Murrell
Addison v. Row
Agnew vy. Corunna
Ainsby v. Gt. North. R. Co.
Akers v. George
cere he ianta & W. P.

590,
Ala. Gt. South. R. Co. v.
Chapman
v. Killian
v. McAlpine 607, 638,
v. Moody 586, 589,
v. Powers 588, 6
v. Roebuck
v. Smith 5
v. Thomas 464, 484,

Ala. ae R. Co. v. Mc-
i
Alair v. North. Pac. R. Co.
Albany v. Watervliet Turnp.
; & R. Co.
‘Albee v. Chappaqua Shoe
Manufg. Co.

Albert vy. qoiseher St., etc.,

R. Co.
Alderson v. State
Aldrich vy. Gorham
v. Tripp 225,

Aldrich vy. Wright 134, 135,
Alexander v. Dutton
v. Gibson
v. Pa. R. Co.
v. State, 60 Miss 953 173,
v. State, 24 Tex. App. 126
Alexandria & M. R. Co. v.
Miles
Alferitz vy. Ingalls 102,
v. Perkins
Alger v. Miss. & Mo. R. Co.,

267,
Allan v. Mullin
Allday v. Great West. R. Co.
Allen v. Allen
. Boston & M. R. Co.
. Delano
Fox
. Hancock
. Leighton
Smith
State, 42 Tex. 517
State, 8 Tex. App 360
. Truesdell
. Wyckoff
v. Young
Ailizon v. Brookshire
Alpers v. Brown
v. San Francisco
Alston v. Northwestern Live-
Stock Ins. Co.
Alvah, The
Alvord v. Smith
Amer. Cent. Ins. Co. v. Haws
Amer. Dist. Tel. Co. v.
Walker
Amer. Exp. Co. v. Peoole
Amer. Preservers Co. v.
Drescher
Amick v. O’Hara
Amory v. Flyn 39,
Amstein v. Gardner 612,
Anderson v. Bath
v. Buckton
v. Locke
vy. Smith 129,

699

Ss S85 84e464< 4

700 TABLE OF CASES.

PAGE PAGE
Anderson v. Stewart 685 Atchison v. Cupello 609
¥., U.S. 75 v. Dill 478
v. Worley 307 v. Ditnars 493, 495
Andrews v. Cox 40 v. Edward 584
v. Crandell 450 y. Elder 585
v. Keith 422 v. Gabbert 611, 644, 647, 657
v. Mason City & Ft. v. Grant 517
D. R. Co. 508 v. Griffis 668
Angell v. Hill, 262, 27 v. Ireland 578. 646
vy. Simmons 314 v. Jones 584
Angus v. Radin 287 v. Mason 478
Annapolis & Balt. S. L. R. vy. Reesman 653, 687
Co. v. Pumphrey 596, 640 v. Riggs 611
Annapolis & E. R. Co. v. v. Shaft 675, 684
Baldwin 628 vy. Tanner 579, 648
Anscomb v. Shore 320 v. Temple 510
Anthony v. Anthony 311 vy. Walton 638
Antisdel v. Chic. & N. R. Co. oe v. Yates 656
Aplin v. Porritt 527 Atkinson v. Chatham 213
Applebee v. Percy 399 v. Mott 260
Archambault v. Montreal 228 Atlanta v. Wilson 207
Archer v. Baertschi 323 Atlanta & W. P. R. Co. v.
Arendale v. Morgan 444 Hudson 155, 164, 648
Argersinger v. Lever 395 Atlanta Cotton-Seed Oil
Arkadelphia v. Clark 350 Mills v. Coffey 164
Ark. Midland R. Co. v. Whit- Atlantic & Gulf R. Co. v.
ley 680 Burt 503
Ark, retest Co. v. Ratteree 254 Atlantic Coast Elec. R. Co. v.
Ark. Val. Land & Cattle Co. Rennard 641
v. Mann 43 Atterbury v. Fairmanner 96
Armbruster v. Wilson 304 Atwater v. Lowe 286
Armstrong v. Brown 322 Atwood v. Bangor, O. & O.
vy. Chic, M. & St. P. R. T. R. Co. 590
Co. 468, 509, 515 Atzroth v. State 187
y. Reeves 542 Auchmuty v. Ham 407
v. Traylor 312 Augusta v. Hudson 207, 226
Arnold v. Mundy 32 Augustus v. Lynde 156
v. Norton 307 Auld v. Travis IIl, 440
Arnot vy. Branconier 424 Auprix v. Lafleur 385
Arthurs v. Chatfield 264 Austin v. Manchester, S. & L
Artman me Kansas Cent. R. R. Co. 471
249 v. Miller 433
Sieh v. 7. Chie, B.& Q.R. Austin & N. R. Co. v. Slator 491
Co. 693 Averill v. Chadwick 567
Ashendon v. London, B. . oe v. Santa Fé Reers. 586
C. R. Co. 474 Avery v. Maxwell 281
Asher v. St. Louis. I. M. & 5 v. Peo. 535
R. Co. 692 v. Popp 104
Askew v. Peo. 50 Aydlett v. FFlizabeth City 313
Aspegren v. Kotas 140, 158 Ayer v. Norwich 222, 231
Atchison & N. R. Co. v. Baty Aylesworth v. Chic. R. I. &
647, 696 P. R. Co. 300, 658
\. Cash 660 Aylmore v. Kahn II
v. Loree 508 Ayres v. Chic. & Northwest-
Atchison, T. & S. F. R. Co. ern R. Co. 499, 521
v. Bryan 500
v. Cahill 639 Babcock v. N. J. Stock Yard
v. Consold. Cattle Co. 504 Co. 356

TABLE OF CASES.

PAGE
Babson v. Rockport 194
Backer v. West Chic. Park
Comms. 408
Badali v. Smith 388
Badgley v. St. Louis 256
Badkin v. Powell 317
Bagley v. State 362
Bagshawe v. Goward 116
Bailey v. Belfast 255
v. Davis 441
v. Forrest 93
y. Hartford & C. V. R.
Co. 590, 600
Bain v. Strang 427
Baird vy. Vaughn 295
Baker v. Berkeley 573
v. Chic., B. & Q. R. Co. 590
v. Kinsey 408
v. Louisville & N. R. Co. 463
\. Mims 164
vy. North East Borough 239
ye Robbins 261
Williams 358
Buleon v. aubuans & S.C.
R. 611
Baldridge & C. Bridge Co. v.
Cartrett 211
Baldry v. Bates 84
Baldwin v. Casella 300
vy. Ensign 295
vy. Greenwoods Turnp. Co. 205
v. Peo. 180
Ball v. Ray 358
Ballard v. Brown 364
Ballentine v. North Mo. R.
Co. 502
v. Webb 355
Balt. & H. Turnp. Co. v.
Bateman 209
Balt. & O. R. Co. v. Lam-
born 262, 612
v. Mulligan 612
v. Schultz 647
v. Thompson 578, 649
v. Wood 662
Baltimore & O. & C. R. Co.
v. Evarts 609
y. Kreiger 670
Baltimore & O. S. W. R. Co.
v. Abbott 678
Balt. & R. Turnp. Road v.
State 254
Balt. & Y. Turnp. R. v.
Crowther 256
Balt, P.. & C. R. Co. v.
Anderson 689
v. Thomas 581
Bamberg v. So. Car. R. Co. 505

Banbury Urban
Auth. v. Page
Banfield v. Whipple

Sanitary

PAGE

28

Bank of Scotland v. Watson "a
Bankard vy. Balt. & O. R. Co.

03, SI

Banks v. State ke ae

Bannon vy. State 641, 646

Bantwick v. Rogers 232

Barber v. Mensch 264

Barclay v. Hartman 403

Bard v. Yohn 413, 428

Baren vy. Cain 42.

Barnes v. Chapin 288

y. State 171

v. Woodbury 51, $2
Barnhart v. Chic., M. & St.

P. R. Co. 678
Barnhill v. Howard 71
Barnum v. Terpening 389, 305

v. Vandusen 349
Barr v. Hannibal & St. J. R.

Co. 595, 597
Barret v. Hampton 361
Barrett v. Lightfoot 116

v. Malden & M. R. Co. 408
vy. Walworth 221
Barringer Be i Y. Cent. &

H. Co. 606
Pace v. oe 128
Barrows v. Fassett 315
Barse Live Stock Comm. Co.

v. Adams 443
Bartholomew v. Wiseman 545
Bartlett v. Budd 25, 26

v. Dubuque & S.C. R.

Co. 673, 676
v. Hooksett 225
v. Kittery 219
v. Pittsb., C. & St. L. R.

Co. 503
Baskin v. Wayne O09
Bass v. Cantor 425
Bassett v. Collis 94

v. St. Joseph 2ir
Bates v. Fremont, E. & M.

R. Co. 623, 640

v. Horner 227

v. McCormick 528, 538

v. Sabin 438

v. Smith 47

Bauer v. Lyons 397
Baughman v. Louisville, E. &

St. L. R. Co. 47
Baxter v. Chic, R. I. & P.

R. Co. 605

y. Louisy., N. A. & C. R.

Co. 510

702 TABLE

PAGE

Bayless v. Lefaivre 117
Baylor v. Balt. & O. R. Co. 618

Baynes v. Chastain 273
Bazell v. State 48
Beall v. Athens Tp. 218
Bean v. Johnson TIO
Beatty v. Davis 575
Beattyville & C. G. R. Co. v.
Maloney 590

Beauchamp (Earl) v. Winn 571
Beaumont Pasture Co. v. Sa-

bine & E. T. R. Co. 600

Beavers v. State 174
Bechdolt v. Gd. Rapids & I.

R. Co. 683

Beck v. Dyson 403
ve US. 56
Becker v. New York, L. E. &

W. R. Co. 654
Beckett v. Gridley 98
Beckham v. Brown 354
Beckwith v. Shordike 277
Bedden vy. Clark 288
Beeson v. Tice 204
Beiling v. Evansville 354
Bélanger v. Quiner 435
Belcher v. Mo., K. & T. R.

Co. 498, 504, 517
Béliveau v. Martineau 428, 455
Belk v. Peo. 332
Bell v. Leslie I, 428

Bellefontaine R. Co. v. Reed 609
Bellefontaine & Ind. R. Co.

v. Schruyhart 581
Bellows v. Elmendorf 567
Belt v. San Antonio & A. P.

R. Co. 606
Bemis v. Arlington 217

v. Conn. & P. R. R. Co.
585, 591, 667

v. Temple 239
Benford v. Sims 545
Benjamin v. Holyoke St. R.

Co. 603, 604
Bennefield v. State 554
Benner Livery & U. Co. v.

Busson 324, 449
Bennett v. American Exp. Co. 567

v. Blackmore 156

v. Blezard 128

v. Fifield 225

v. Ford 328

v. Hazen 252

v. O’Brien 419, 420, 424

State 171
Benoit v. Troy & L. R. Co.

325, 331
Benson v. Gray 483

OF CASES.

PAGE
Berg v. State 168
Bergeron v. Brassard 444

Berkley v. Chic., R. I. & P
R. Co. 635
Berrill vy. Smith 432
Berry v. Marix 447

v. St. Louis, S. & L. R.
R. Co. 662, 666

v. San Francisco & N. P.
R. Co. 279
v. Shannon 99
Bertelson v. Bower 71
Bertwhistle v. Goodrich 294
Besozzi v. Harris 372, 374
Bessette v. Howard 156
Best v. Flint 83
v. Osborne 95

v. Ulster & D. R. Co. 660
ae Raleigh & A. R.

oO. 616
Betts v. Chic., R. I. & P. R.

Co. 490, 515

v. Farmers’ Loan & T.

Co. 469, 489, 490
Bettye v. Houston & C. T.

Co. 638
Bettys v. Milwaukee & St. P.

R. Co. 686
Bevan v. Waters 442
Beyman v. Black 48
Biegler v. Merch. Loan &

Trust Co. 3609
Bielenberg v. Mont. Un. R.

Co. 650, 695
Bigbee v. Coombs 433
Bigelow v. North Missouri

. Co.

v. Reed 326
Bignell v. Clarke 315
Bileu v. Paisley 429
Billman v. Indianapolis, C. &

R. Co.
Bills v. ‘Kaukauna 240, 251

v. Kinson 317
v. N. Y. Cent. R. Co.
Bingham v. Salene
Binicker v. Hannibal & St. i
R. Co. 631, 675

Binns v. Pigot 457, 459
Binstead v. Buck
Bird v. Higginson 569
Birkbeck v. Paget $71
Birket v. Williams 260
Birmingham Mineral R. Co.
v. Harris 586, 607, 638
v. Parsons 681

Birmingham R. & Elec. R.
Co. v. City Stable Co. 593

TABLE

Bishop v. Banks 355
Belle City St. R. Co. 603
v. Chic, M. & St. P. R.

Co, 616

v. Fahay 142

vy. Schuylkill 196
Bissel v. Southworth 271

Bissell v. Pearce 109, I11, 440
Bitting v. Maxatawny Tp 108, 251
Bittle v. Camden & A. R.

Co. 508
Bixby v. Deemar 505
Black v. Brennan 459

v. Chic., B. & Q. R. Co.
. 504, 505
v. Elliot 126
v. State 49
v. Vaughan 73
Blackburn v. State 117, 176
Blacklock v. Milliken 276
Blackman v. Simmons 386
Blades v. Higgs II, 12, 18
Blain v. Manning III
Blaine v. Chesapeake & O.
R.C 267, 618

. Co.
Blair v. Forehand 58, 141, 142
vy. Small 304
Blais v. Minneapolis & St. L.
R. Co

: : : 679
Blaisdell v. Stone 285
Blakeley v. Baker 244
Blakeslee v. Consold. St. R.

Co, 602
Blanchard v. Chic. & A. R.
Co. 500

v. Ingram 112
Blanford v. Minneapolis & St.

L. R. Co. 669
Blaxton v. Pye 362

Bledsoe v. Thompson 362, 363
Bleil v. Detroit St. R. Co. 210
Blewett v. Wyandotte, K. C.

& N. R. Co. 641

Bliss v. Wilbraham 255

Blizzard v. Walker 305

Blomberg v. Stewart 690

Bloor v. Delafield 228, 240
Blower v. Gt. West. R. Co.

460, 506

Blyth v. Topham 152

Board v. St. Louis, I. M. &

S. R. Co. 267
Board of Health of Raritan

Tp. v. Henzler 356
Boaz v. Cent. R. Co. 406
Boden v. Roscoe 304
Bodger v. Nicholls 74, 340
Bodurtha v. Phelon 88

OF CASES. 703

Boecker v. Lutz 129
Boehl v. Chic., M. & St. P.
R. Co 513

Boggs v. Stanky

10
Boing v. Raleigh & G. R. Co. fan
Bolden v. Brogden 89, 94
Bollard v. Spring 573
Bollinger v. Com. 362
Boltz v. Sullivan 242
Bond v. Evansville & T. H.
R. Co. 661, 674, €76
Bonner v. DeLoach 259, 313
Bonney v. Smith 188

Boone City Bank v. Ratkey 102
Boone Co. Comms. - v.

Mutchler 208, 214
Booth v. Sanford 124
Boothby v. Boston & M. R.

Co. 508
Borer v. State 171
Bormann v. Milwaukee 380
Borst v. Lake Shore & M. S.

R. Co. 598, 601, 602
Bost v. Mingues 135
Bostwick v. Minneapolis & P.

R. Co. 262, 616, 619
Bott v. Pratt 325
Boulester v. Parsons 387
Boulston’s Case 572
Bourne v. Ashley 26
Bourrett v. Palo Alto County 146
Bowden v. Dugan IIo

Bowen v. Flint & P. M. R.

Co. 604

v. Hannibal & St. J. R.

Co.

Bower v. Robinson 370
Bowers v. Fitzrandolph 131
v. Horen 136, 145, 166
Bowes v. Boston 216
Bowie v. B. & O. R. Co. 482
Bowles v. Abrahams 208
Bowman v. Brown 319

v. Chic. & A. R. Co. 593,
14, O19
v. Troy & B. R. Co. 626, 669
Bowser v. Toledo 240
Boyce v. Wabash R. Co. 631
Boyd v. Burkett 157
v. State 551
Boyle v. McWilliams 328
vy. Mo. Pac. R. Co: 614

y. New York, L. E. &
W. R. Co. 588
v. Tamlyn 274
Boylen v. Everett 405
Bozeman v. Fields 102

Brace v. N. Y. Cent. R. Ca. 676

704 TABLE
PAGE
Brackenridge v. Fitchburg 251
Bradbury v. Lawrence 425
Bradford v. Dawson 368
v, Floyd 207, 345, 349
v. McKibben 135

v. Mo., K. & T. R. Co.
346, 493

Bradley v. Buffalo, N. Y. &
E. R. Co. 683, 684
v. Myers 391
v. Rea 342
Brady v. Ball 286
v. M’Argle 530

v. Rensselaer & S. R. Co.
616, 626
v. Todd 84, 85
v. Williams 433
Branch v. State 536, 548

Brandenburg v. St. Louis &
Ss.

F. R. Co. 666, 683
Branigan v. Hendrickson 72
Brantford City, The 492
Brassfield v. Patton 690
Bratfisch v. Mason Tp. 210

Brauer vy. Compania de
Navign. La Flecha 516, 522

Braun v. State 355
Braxton v. Hannibal & St.

J. R. Co. 507

Bray v. Mayne 425
v. Wise 451
Brendlinger_ v. New Han-

over Tp. 243

Brennan y. Friendship 240,
251, 250

Brenner y. aren Bay. S. P.
N. R. Co. 692
Brent v. Kimball 129

Brentner v. Chic., M. & St. P.

R. Co. 639, 647, 658, 604
Brewer vy. State 535
Brice v. Bauer 402
Briggs v. Hunton 445, 446

v. St. Louis & S. FR.
; Co. 642, 649
Brightman v. Grinnell 318
Brill v. Flagler 136, 145, 164, 360

Brinckerhoff v. Starkins 32

Brintnall v. Smith 452
Brees v. State 181
riscoe v. Alfrey 304
v. Mo. Pac. R. Co. 690

Bristol v. Galway 92
Brittain, John S., Dry-Goods
Co. v. Blanchard

103
Britton v. Cummington 202
Broadfoot v. Fayetteville 313
‘Broadwater v. Blot 434

OF CASES.

PAGE
Brock v. Copeland 383, 380

Brockert v. Cent. Ia. R. Co.

! Brockway v. Amer. Exp. Co.
464, 487, 496
Broder v. Saillard 358
Broderick v. Higginson 403

Broennenburgh v. Haycock
77. 94
Brogan v. Worton 379

Bronson Agricul. & Breeders’
Assn. v. Ramsdell
Brooke v. Peo. 48

Brooks v. Acton 217
v. Hannibal & St. J. R.
Co. 586, 62
v. Hassall 86
vy. London & North-
Western R. Co. A7r
v. Petersham 249
vy. State 48
v. Taylor go, 416
Brookville & C. Turnp. os
v. Pumphrey 223
Brophy v. Hyatt 321
Broquet v. Tripp 342
Broughton v. Singleton 558
Brouillet v. Coté 444
Browder v. State 556
Brown v. Bailey 528
v. Bigelow 94, .99
v. Carpenter 144, 203
vy. Collins 328
v. Cooper 156
v. Doyle 82
v. Eastern & M. R. Co. 239
v. Elkington 93
v. Ellis 76
v. Giles 297
vy. Glascow 211
Vv. Green 99, 417
y. Hannibal & St. J. ae
Co. 614, 638
Vv. Hoburger 165
v. Howard 306, 307
v. Kan. Gis St. J. & €.
B. R. 668
v. Kendall” 386
v. Laurens Co. 207, 226
vy. Patch 368
v. Renton 538, 539
v. Southbury 257
v. State, 86 Ga. 633 180
Vv State, 26 O. St. 176
553, 554

v. State, 88 Tenn. 566 366

v. Sylvester 307

v. Wabash, St. L. & P. R.
Co. 578

TABLE OF CASES. 705

PAGE
Brown v. Wilmington City
. Co. 648
Browne v. Powell 320
v. Providence, H. & F. R.

Co. 665
Bruce v. Fiss, Doer & Carroll

Horse Co. 100

v. Prosser 571
v. Smith 26
Brush v. Clarendon Land, I.

& A. Co. 434, 435
Bryan v. Eaton 137
Bryant v. Southwestern R. Co 495
Buchanan v. Parnshaw 9

v. Smith 426
Buck v. Davenport Savings

Bk. 102

v. Moore 277

v. Young 102

Buckley v. Clark 156, 158

v. Gee 388

v. Leonard 307

Buckmaster v. Cool 260

v. Smith 46

Budd v. Fairmaner 89

v. McLaughlin 81, 340

v. Power 72

Buddington v. Shearer 414

Budge v. Parsons 528, 520, 538

Buford v. Houtz 265, 209

Buis v. Cook 427
Bulkley v. N. Y. & N. H.R.

Co. 620
Bullard v. Mulligan 140
Bullington v. Newport News

& M. V. Co. 588
Bullock v. Geomble 308
Bulpit v. Matthews 260
Bunch v. Kennington 306
Bundschuh v. Mayer 405, 410
Bunnell v. Davison 440

v. Rio Grande W. R. Co.
585, 594, 627
Burch v. Spencer 83
Burdett v. Allen 312
Bureau Junction v. Long 209
Burge v. Stroberg 87
Burger v. St. Louis, K. & N.
R. Co. 579, 646
v. State I7I
Burgher v. Chic., R. I. & P.

R. Co. 407
‘Burgman v. State 543, 556
‘Burgwyn v. Whitfield 207
Burke v. Daley 374
‘Burlington v. Stockwell 350
Burlington & Mo. River R.

Co. v. Brinkman 615

45

PAGE

Burlington & Mo. River R.

Co. v. Franzen G15
v. Shoemaker 584
v. Webb 615
v. Wendt 638
Burnby v. Bollett 82
Burnett v. Oechsner 141
Burnham v. Strother 405, 406
Burns v. Farmington 240
Burrell Tp. v. Uncapher 198
Burton v. Moorhead 393
v. Young o1
Busby v. St. Louis, K. C. &
N. R. Co. 657, 690
Bush vy. Brainard 148
v. Wathen 386, 406
Buster v. Newkirk 5
Buswell v. Fuller 121
Butcher v. W. Va. & P. R.

Co. 507, 628
Butchers & D. Stock Yards
Co. v. Louisv. & N. R.

0. 481
Butchers’ Union Co. v. Cres-
cent City Co. 352
Butler v. Milwaukee & St. P.
R. Co. 25
v. Oxford 224
Butterfield v. Burroughs 77, 93
v. Forrester 250
Button v. Frink 320, 330
Buxendin v. Sharp 376, 301
Buxton v. North Eastern R.
Co. 652, 653
Byerly v. Anamosa 207
Byrd v. State 48
Byrne v. Morel 309
Bywater v. Richardson 78
Cabaness v. Holland 74, 79
Cadwell v. Arnheim 329
Cage v. Franklin Tp. 198
Cahoon v. Chic. & N. R. Co. 600
v. Miers 106
Cairncross v. Pewaukee 249
Cairo & St. L. R. Co. v.
Murray 609
v. Woosley 609, 629
Caldwell v. Bridal 341
v. Felton 478
v. State 544
v. Trowbridge 102
v. Tutt 452
Caledonia, The 502, 518, 521

Callaghan v. S. P. C. A. 539

Calland v. Nichols 434
Cameron v. Bryan 402
v. State 178

706 TABLE

Camoys (Lord) v. Scurr 423

Camp vy. Flaherty 305

y. Scott 305

Campau v. Langley 309

Campbell v. Bridwell 263

. MA ie 391, 416

. Evans 309

vy. Great West. R. Co. His

vy. Manchester

ve N.Y. & N. E. R. Co. ae

vy. Page 385

vy. State 185

y. Stillwater 211

y. Trimble 413
Can. Pac. R. Co. v. Cross

592, 619, 680

y. Falardeau 633

‘Canefox v. Crenshaw 136
Cannon v. Louisville, E. &

St. L. R. Co. 653
Cantling v. Hannibal & St. J.

R. Co. 485, 514
Canton, A. & N. R. Co. v.

French 676
Canton, C, & H. Turnp. Co.

y. McIntire 209
Cantrell v. Kansas City, M. &

B. R. Co. 613

ae v. Case 416

. Columbia Tp. 198

v. Ellsworth 220

‘Cardinal v. Edwards 451, 452
‘Carey & Chic., M. & St. PLR
oO.

R 621
Cargill v. Mervyn 278
Carlotta, The 495
Carlton v. Wilmington & W.
R. Co. 586
Carpenter v. Cook 269, 270
\. Latta 150
y. Lippitt 130
Carr v. Black 245
vy. Lancashire & Y. R.
Co. 471
Carraher v. San Francisco
Bridge Co. 601, 628
Carrier v. Dorrance 427
Carrington v. Taylor IIQ, 572
Carroll vy. Eivers 349
v. Mo. Pac. R. Co. 407
Carruthers v. Hollis I4I
Carskaddon v. Mills 158
Carstens v. Burleigh 408
Carstesen v. Stratford 241, 249
€arter v. Cole 78
v. Harden 81
v. Kan. City, Ft. S. & M.
R. Co. 668

OF CASES.

PAGE
Carter v. Toussaint 72
Carthage v. Rhodes
Carver v. Detroit & S. Plank-
Road Co. 254
Cary v. St. Louis, K. C. & N.
R. Co. 653, 654
Case v. Allen IO, III
vy. Cent. R. Co. of N. J. 615
v. Cleveland, C., C. & St.

L. R. Co. oe 510
v. St. Louis & S.
Co. * Gas; 659
v. Stevens 100
Casey v. Suter 425
Caster v. Kan. City, Ft. S. &
M. R. Co. 586
Caswell v. Coare 99, 00
v. Johnson 33
Cate v. Cate 322
Cateril v. Un. Pac. R. Co. 650
Catlin v. Valentine 354
Caulkins v. Mathews 152, 261
Cave v. Coleman 86
Cavender v. Fair 444
Cecil v. Preuch 435
Cent. Branch Un. Pac. R. Co.
v. Ingram 630
v. Lea OI
v. Nichols 649, 654
v. Walters ’ 637
Central Ohio R. Co. v. Law-
rence 594
Cent. R. & Bkg. Co. v. Bry-
ant — 469, 497
v. Davis 622
v. Ingram 502
v. Lee 586
v. Pickett 510
v. Russell 593
v. Smitha , 4690
v. Summerford 591
yv. Warren 648
Centralia v. Scott 256
Chadsey v. Greene 77, 92
Chaffee v. Harrington 117
Challand v. Bray . 361
Chambas v. Gilbert 351
Chamberlain v. Enfield 224,
; 255, 404
v. Litchfield 298, 328
v. Smith 421
Chamberlin v. Cobb 420
Chambers v. Matthews 262
v. Warkhouse 58
Champion v. Vincent 135, 163

Champlin v. Penn Yan 237, 239
Chapin v. Sullivan R. Co 676, 680
Chapman v. Allen 440

TABLE OF CASES.

PAGE

Chapman v, First Nat. Bk. 109
v. Gwyther 78
v. Withers 97
v. Zanesville St. R. Co. 602
‘Chappell v. State 554
Charlebois v. Raymond 6
Charles v. Neigelsen 109
Charlwood v. Greig 384, 305
Charman y. South-Eastern R.
Co. 671
Chartiers Tp. v. Phillips 197
Chase v. Chase 2607
vy. McDonald 301
vy. Putnam 304
Chattanooga v. Norman 298
Chattanooga S. Co. v.
Daniel 588, 638
Chavez v. Ty 47, 48
Cheek v. Com. 303
Cheesum v. State 361
Chenette v. Teehan 432
Cheney v. Ryegate 256
Cheny v. State 184
Chesapeake & O. R. Co. v.
Amer. Exch. Bank 460,
476, 481, 487, 488
Chesnut v. Peo. 49
Chesterman v. Lamb 100
Chew v. Jones 427
Chicago v. Hoy 223
v. Rumpff 354
y. Union Stockyards &
T. Co. 361
Chic. & Alton R. Co. vw.
Barnes 670, 696
v. Engle 608, 669
vy. Erickson 344, 501
v. Gasaway 343
vy. Grimes 469, 509
v. Hanley 507, 642
v. Hill 641
vy. Hogarth 587, 624
yv. Kellam 588
v. Legg 642
vy. O’Brien 671
y. Saunders 658
y. Scranton 605
vy. Umphenour 658
v. Utley 656, 678
Chic. & East. Ill. R. Co. v.

Blair 660
vy. Guertin 659, 683
v. Katzenbach 477
v. Modesitt 676, 695
v. Peo. 583
y. Pratt 485

Chic. & Erie R. Co. v.
Brannegan 654

Chic. v, Cummings

707

PAGE

642

Chic. & I. R. Co. v. DeBaum 579

Chic. & Northwestern R. Co.
v. Barrie 588, 638, 657,
v. Dunn
v. Goss
vy. Harris
v. Hart
v. Prescott
v. Shultz
v. Van Dresar
& R. I. R. Co. v.
Hutchins
Chic., Burlington & Q. R. Co.
v. Bradfield
Carter
Cauffman
Cox
Dannel
Dickson
Evans
Farrelly
Finch
Haggerty
Hale
Hogan
Kennedy
Magee
Seirer
Sierer
Sims
. Yorty
Chic, K. & N. R. Co. v.

Behney
Chic, K. & W. R. Co. v.
Prouty
v. Totten
Chic., M. & St. P. R. Co. v.
Dumser
v. Phillips 590,
v. Wallace
Chic, R. I. & P. R. Co. v.
Green
v. Harmon
v. Lee
v. Reidy
Vv.
v

635.

671,
604,
678,

593,

aa8e844848888858

492, 506,

. Witty
. Woodworth
Chic., St. L. & N. O. R. Co.

v. Abels 471,
v. Jones 139, 585,
Chic., St. L. & P. R. Co. v.
Barnes
v. Fenn 595,
v. Nash 610, 619, 620,
Chic, W. & M. R. Co. v.
Stanley
Chickering v. Lord

659
697
620

628

694
606

632
489

633

708

Child v. Greenhill
v. Hearn 289, rap
Childers v. Louisville, N. A
& C. R. Co.
Childress v. Yourie
ites = vy. Progress P. & P.

oO.

Chippendale v. Lancashire &
Y. R. Co.

pear vy. North. Pac. R.

Choate v. Southern R. Co. 587,

Chouteau v. Hannibal & St.
J. R. Co.

Christy v. Hughes

Chubbuck & Hannibal & St.
J. R.

Chunot v. ea

Churchhill v. Evans

Churchward v. Studdy 8,
Cicero & P. St. R. Co. v.
Meixner 390, 609,
Cine. & Z. R. Co. v. Smith
580,
Cinc., H. & D. R. Co. v. Bun-
nell
v. Street
v. Waterson
Cine, H. & I. R. Co. v.
Jones
Vv. Mees
v. Ridg
Cine., I., St lz Reo
v. Case
v. Parker
Cine., N. O. & T. P. R. Co.
v. Stonecipher
v. Webb
Cine, W. & M. R. Co. v
tanley 0;

Citizens’ R. Co. v. Hair
Citizens’ Rapid Transit Co. v.
Dew 166,
Citizens’ St. R. Co. v. Lowe
Clampitt v. Johnson
Clardy v. ae Louis, I. M. &
S. Co.
Clare v. ae
Clarendon Land Inv. & re
Co. v. McClelland 268,
: 276, 349,
Claridge v. South Stafford-
shire Tramway Co.
Clark v. Adams
v. Armstrong 374;
v. Barrington
v. Boston & M. R. Co.

593;

TABLE

PAGE

28
687

” 382
238

368
477

675
636

683
124

679
287
305

II

629

OF CASES.

PAGE

Clark v. Chic. & W. M. R.

Co.
v. Draper 72
v. Hague 539
v. Hannibal & St. J. R.
Co. 653
v. Keliher 135, 138
v. Lebanon 219
v. Lewis 317
v. St. Louis, K. C. & N.
R. Co. 469, 514
vy. Syracuse & U. R. Co. 616
v. Union Ferry Co. 248
Clarke v. Crowder 574
v. Rochester & S. R. Co. 506
v. State 171
Clary v. Burlington & M. R.
Co. 676
v. Ia. Midland R. Co. 634, 688
v. Willey 454
Claunch v. Osborn 279, 288
Clay v. State 184
Clayards v. Dethick 250
Clayton v. Jennings 362
Cleary v. DeVesci 572
Cleayeland v. Chic. & N. R.
590, 655, 686
Clem v. “Waal R. Co. 614
Clement v. Milner 302
Cleveland v. Bangor 203
v. Koch 105, 108
v. Wolff 363
Cleveland & P. R. Co. v. Mc-
Connell 669
Cleveland, C. & C. R. Co. v.
iott 262
Cleveland, C., C. & I. R. Co.
v. Crossley 651
v. Scudder 621
v. Wynant oie 598, 605
Cleveland, C., C. & St. L

Co. v. Ahrens 609

vy. Ducharme 628
v. Heath 505
y. Patterson 497
Cleveland, P. & A. R. Co. |
y. Curran 467, 469
Clore v. McIntire 385
Clowdis v. Fresno Flume &
Irrign. Co. 338
Coates v. Stephens
Cen, Han City, F. S. & MM. .
55
v. Me eaclish 243
Cochran v. Shepherdsville 246
v. State 172
v. Walker 427, 433

Cochrane v. Frostburg 301, 339

TABLE OF CASES.

Cock v. Weatherby 20
Cockerham v. Nixon 308
Cockfield v. Singletary 400
Cockrell v. Warner 72
Coffin v. Field - 316, 320

v. Vincent 322
Coggins v. State 288
Coggswell v. Baldwin 391
Cogswell v. Murphy 286
Cohen v. Hume 461

v. Manuel 456
Colam v. Pagett 526
Colden v. Eldred 270
Cole v. Chic. & N. R. Co. 629

y. Hall 65

vy. Newburyport 238
Coleman v. Bathurst 569
Colget v. Norrish 309
Collingill v. Haverhill 408
Collins v. Fox 318

v. Hatch 298

v. Larkin 311
Collman v. Mills 532
Colp v. Halstead 311, 320
Colquitt v. Kirkman III, 450
Colt v. Webb 558
Coltherd v. Puncheon 95
Colton v. Wise 420, 421
Colvin v. Sutherland 154

Sonny London & S. W. R.

oO. 490
Comer v. Columbia, N. & L.

R. Co. 497
Comly v. Hillegass 304
Com. v. Beale 319

v. Beaman 30, 183
vy. Bean 209
v. Brahany 65
v. Brooks 554
v. Chace 22
v. Clancy 362
v. Cramer 548
v. Curry 533
v. Curtis 298
v. Depuy 62
v. Dow 293
v. Edwards 181
v. Gorman 65
v. Hall 565
v. Hazelwood 64
v. Healey 362
v. Hiller 56
v. Leach 547
v. Lewis 538
vy. Lufkin 530
v. McClellan 543, 544, 545
v. Maclin 550
v. Magoon 530, 531

Com. v. Markham
Mason
Perry
Porter
Shelton
Sowle
T. J. Megibben Co.
Thornton
Tilton
Turner
Van Sickle
Walden
Whitman
. Wilkinson
. Wood
Compania de Navigation La
Flecha v. Brauer 476,
516,
eounahaels Des Moines V.
. Co.
Conard v. Crowdson
Congdon v. Cent. Vt. R. Co.
Connell v. McNett
Connemara, The
Conners v. Loker
Connolly v. Cent. Vt. R. Co.
Connyers v. Sioux City & P.
R. Co. 504, 610,
Conradt v. Clauve
Conway v. Can. Pac. R. Co.
v. Grant
Cook v. Atlanta
v. Charlestown 215, 216,
v. Minneapolis, St. P. &
S. S. M. R. Co.

528,

tdd44444844885

v. Montague
v. Moseley
v. Shattuck
Cooke v. Waring
Cool v. Crommet
Copley v. Grand Trunk R.

°.
Coolidge v. Choate 166,
Coombes v. Dibble
v. State
Coombs v. Topsham
Cooper v. Barton
v. Raleigh & G. R. Co.
Ex parte ;
Cooper-Dean v. Stevens
Coor v. Rogers
Copeland v. Draper
v. Hamilton
Corbett v. Chic., St. P., M. &
O. R. Co.
Coriolanus, The ;
Coristine v. Montreal City
Pass. R. Co.

228

710 TABLE

PAGE
Corliss v. Smith 309
Cornelius v. Grant 530

Cornell Bi Detroit Elec. R.

604, 627
v. Tomes & N. E.R.
Co. 685

Corner v. Champneys 138
Corning v. Ashley III
Cornwall v. Sullivan R. Co. 667

Cornwell v. Fraternal Acc.
Assn. of Amer. 568

Corrigan v. Coney Island
Jockey Club 80, 370

vy. Great Northern and
Manchester, S. & L. R.
Cos. 474
Corry v. Great Western R.
Co. 662
Corson v. Neatheny 361, 363
Corwin v. N. Y. & E. R.
Co. 616, 665
Cory v. Dennis 309
v. Little 140
Costello v. Ten Eyck 437

Cotting v. Kansas City Stock-

yards Co. 346, 481
Cotton v. New York, L. E. &

. R. Co. 578

v. Reed 83

v. Walpole 402

Couch v. Crawford 188

Coughey v Willamette St. R.

625
Coup v. Wabash, St. L. & P.

R. Co. 461
Coupé Co. v. Maddick 420
Coupland v. Housatonic R.

Co. 489, 505. 506
Courson v. Chic., M. “e St. P,

P. R. Co. * 503
Court v. _ Connor 52

v. Snyd 74
Cousins v. THeauibal & St. J.

R. Co. 633
Coventry Mut. Live-Stock

Ins. Assn. v. Evans 161
Covington Stockyards Co. v.

Keith 480, 481
Cowan v. Dalziel 407
Coward v. State 174
Cowles v. Balzer 270
Cox v. Beck 106, 108, 113

v. Burbridge 301
v. McGuire 440
v. Minneapolis, S. S. M.
& A. R. Co. 620, 683,
684, 690
Coxe vy. Robbins 262

OF CASES. ,
PAGE
Coxon v. Gr. Western R. Co. 464
Coy v. Utica & S. R. Co. 668
Coyle v. Baum 127
v. Chic. & A. R. Co. 343.
v. Chic. M. & St. P. R.
Co. 669
v. Conway 349
v. McNabb 312
Coyne v. Brady 530
Crafton v. Hannibal & St. J.
R. Co. 579
Cragin v. N. Y. Cent. R. Co.
463. 471
Crain v. Petrie 342
Crandall v. Eldridge 150
Crane v. Ellis 275
v. State 359
Cranston v. Cince., H. & D. R.

Co. 617

Crawford v. Crawford 135
v. Hughes 273

v. Internat. & GN. R.
Co. 163,
v. Maxwell B75

v. N. Y. Cent. & H. R.
R. Co. 669
v. Williams 278
Crawfordsville v. Smith 207
Credit v. Brown 131
Cressey v. North. R. Co. 621
Crisfield v. Neal 102
Crisman v. Masters 275
Crocker v. McGregor 239
v. Mann 302

Croddy v. Chic., R. I. & P. R.

Co. 643, 692
Croft v. Cresse 349
Crook v. Peebly 117
Croom v. State 174
Crosby v. Warren 309
Cross v. London Anti-Vivi-

section Society 542

v. McFaden 404
Crossan v. N. Y. & N. E. R.

Co. 466
Crossman v. Johnson 86
Crouch v. Culbreath 92
Crowe v. Steeper 299
Crowell v. State 49
Crowhurst v. Amersham

Burial Board 149
Croy v. Louisville, N. A. & C.

R. Co. 581, 670
Croyle v. Moses 79
Crum v. Conover 674
Crumbaugh yv. Williams 440
Cryer v. State S51

Cuddeback v. Jewett

TABLE OF CASES. T1t
Cc 7 PAGE PAGE
ullen v. Lord 6 Davis v. State, 1
Cully v. Louisv. & N. R. Co. aa 707 ears t&1
Culp v. Atchison & N. R. v. State, 12 Tex. App. 11 535
Co. 508 v. State, 13 Tex. App. 215 187
Culver v. Streator 143 Vv. State, 23 Tex. App. 210 180
Cumberland Bank v. Baker 105 v. Tex. & Pac. R. Co. 499
Cummings v. Mastin 435 v. Wabash R. Co. ‘580, 674
v. Perham 142 v. Walker 346
v. Riley 405 v. Williams 237
Cuney v. Campbell 307, 402 Dawley v. Potter 72
Curran v. Midland Gr. West. Dawson v. Chamney 454
R. Co. 473 496, 512 v. Midland R. Co. 663
Curry v. Chic. & N. a: fa v. St. Louis, K. C. & N.
. o 7 R. Co.
Curtis v. Hannay 79 Dawson’s Case ae
v. Mills 384, 380 Day v. Bather 455
Cushing v. Bedford 217 v. New Orleans Pac. R.
Cutler v. Bonney 454 Co. 38, 652
Dayhoff v. Internat. & G.
Dacres v. Oreg. R. & N. Co. 650 R. Co. 634
Dalby v. Wolf 300 Dayton & Mich. R. Co. v.
Daly v. Arrol Bros. 388 Miami Co. Infirmary 620
v. State : 268 DeGraff vy. Queen Ins. Co. 160
Dandurand v. Pinsonnault 384 De La Guerra v. Newhall 307
Danforth v. Crookshanks 74, 80 DeVoin v. Mich. Lumber Co. 426
Daniel v. Janes 137 Dean v. Branthwaite 429
Daniels v. Aholtz 289 v. Chic. & Northwestern
v. Grand Trunk R. Co. 664 R. Co. 518
Danner v. So. Car. R. Co. 640 v. Keate 42
Daoust v. Can. Pac. R. Co. 689 v. Morey 77
D’Arcy v. Miller 260, 270 v. Gna & St. L. R. Co. 666.
Darden v. Oneal 80 v. State 555
Dargan v. Waddill 358 Deane v. Clayton 137
Darling v. Rodgers 261 Deaver v. Bennett 362, 363
vy. Westmoreland 230 Debardeleben v. State 366
v. Wilson 106, I07 Debbs v. State 171
Darlington v. Ward 357 Decatur Bank v. St. Louis
Darnell v. State 186 Bank _ 528
Danger v. Chic., M. & St. Decker v. Fisher 33
R. Co. 641 y. Gammon 286
Bidiecs v. Cent. Ia. R. Co. 877 v. Holgate 136
Davies v. Mann 245 Deggs v. State 171
v. Powell 35, 40 Deirks v. Wielage 307
Davis v. Bangor 220 Delaney v. Errickson 267, 288
v. Campbell 139 Delier v. Plymouth Co.
v. Can. Pac. R. Co. 681 Agricul. Soc. 364
v. Cent. R. Co. 643 Delk v. State 170, 174
v. atlas R.~ & P. R. Delta Electric Co. v. Whit-
658 camp 586
v. Cain 550 Demetz v. Benton 340
v. Dallas Nat. Bk. 73 Denison v. Lincoln 301
v. Davis 268, 274 Denison & P. S. R. Co. v.
v. Dudley 193, 194, 207, 242 O’ Maley 361
v. Kallfelz 324 Dennis v. Muyck 446
v. Longmeadow 243 yv. Louisville, N. A. & C.
v. McNair 566 Pe, Co. 587, 619
vy. Seymour 418 Denny v. Correll 413
v. P...G. As 534, 541 Dent v. Ross 320

712 TABLE OF CASES.

PAGE PAGE

Denver v. Peterson 232, 247 Doak v. Saginaw Tp. 210
Denver & R. G. R. Co. v. Doan v. St. Louis, K. & N.

Henderson 637, 639 R. Co. 470, 486

v. Nye 583, 588 Dobson v. State 187

v. Olsen 608 Dockerty v. Hutson 389

v. Outcalt 647, 650, 696 Dodge v. Baker 323

y. Stewart 608 Dodson v. Mock 138, 144, 146

v. Thompson 650 Doe dem. Douglass v. Lock 569

v. Wheatley 577, 650 Doggett v. Catterns 368
Denver, T. & G. R. Co. v. vy. Richmond & D. R.

Robbins 598 Co. 504
Desany v. Thorp 46, 102, 106 Doherty v. Sweetser 330
Desmond v. Smith 360 Dolan v. Newburgh, D. & C.
Desrousseau v. Boston & M. R. Co. 626, 633, 661

R. Co. 508 Dolfinger v. Fishback 325
Detroit, E. R. & Ill. R. Co. v. Dolph v. Ferris 374, 381, 415, 436

Barton 610, 631 Domnau v. Green 450
Deville v. South. Pac. R. Donahoo v. Scott 164

Co. 626 Donald v. Minneapolis, St. P.
Devonshire, Duke of, v. &S.S. M. R. Co. 682

Lodge 57I v. St. Louis, K. C. & N.

v. O’Connor 569 R. Co: 697
Dewell v. Sanders 21, 120 Donathy v. Crowther 450
Dexter v. McCready 323 Donnelly v. Fitch 325, 330
Deyo v. Hammond 72 Donohue v. Warren 201

-y. Stewart 270 Donovan v. Hannibal & St. J.
Diamond v. East Hants 240 R. Co. 614
Diamond Brick Co. v. N. Y. v. Vicksburg 308

Cent. & H.R. R. Co. 674 Doolan v. Midland R. Co. 473
Dicas v. Hides 455 Dooley v. Mo. Pac. R. Co. 607
Dickens v. State 289 v. 17.500 Head of Sheep 286
Dickerson v. Rogers 454 Doolittle v. Shaw 431, 432
Dickey v. North. Pac. R. Co. Doran v. Chic., M. & St. P.

' 618, 693 R. Co. 620
Dickhaut v. State 566 Dorrington v. Edwards 7
Dickinson v. Follett 93 Doss v. State 172

vy. London & N. W. R. Doster v. Charlotte St. R. Co. 603

Co. 664 Douglas v. E. Tenn., V. & G.
Dickson v. Gt. North. R. Co. R. Co. 589

461, 471 Douglass v. Grand Trunk R.

v. McCoy 330 Co. 664

vy. Omaha & St. L. R. v. Hannibal & St. J. R.

Co. 653 Co. 501

every 49 v. Moses 99
Dillard v. Webb 312 Dovaston v. Payne 281
Dillaree v. Doyle 45 Dove v. State 168
Dillon v. Raleigh ail Dover v. Winchester 404
Dilts v. Kinney 415 Dow v. Portland S. P. Co. 512
Dimmit Co. v. Frazier 146 Downey v. Taylor 70
Dimmock v. Allenby 277 Downing v. Chic, R. I. & P.
Dimock v. Suffield 222 R’ Co. 604
Dinwiddie v. State 549 Doyle v. Detroit Omnib. Line
Dinwoodie v. Chic., M. & St. Co. 325, 331

P. R. Co. 684 Dreher v. Fitchburg 199
Dist. of Col. v. Bolling 251 Drew v. Spaulding 314
Divine v. McCormick 82 Drolet v. Laferriére 96
Dixon v. Dalby 458 Drury v. Defontaine 74

vy. Great Western R. Co. 658 Dryden v. Smith 689

TABLE

PAGE

Drysdale v. Dugas 358
Duckett v. State 176
Duckworth v. Walker 95
pal v. Canal Bank 246

. Flushing Jockey Club at
. Love 138
v. McKenzie ce
Duffees v. Judd
Duly = NY Be Ce oor
Duggan v. Hansen 285, 205
Duke v. Kan. City, F. S. &

M. R. Co. 666, 692
Dunbar v. Woodcock 44
Duncan vy. Can. Pac. R. Co. 664

vy. Pope 531
v. Rodger 400
v. St. Louis, I. M. & S.
oO. 659, 672
y. Starr 117
vy. Toms 541
Dunlap v. Snyder 145, 146, i165
Dunlop v. Waugh 89
‘Dunn v. Barnwell 226
v. Hannibal & St. J. R.
Co. 497
v. State 170
v. Wilmington & W. R.

Co. 602
Dunnigan v. Chic. & N. R.

Co. 678
Dunning v. Bird 135
Dunsford v. Mich. C. R. Co.

G21, 671
Duntley v. Boston & M. R.

Co. 470
‘Dunton v. Reed 321
‘Durham v. Goodwin 272

v. Musselman 123
Durocher v. Maunier 447
Durrell v. Johnson 308
Duval v. State 178
‘Duvall v. Balt. & O. R. Co. 602
Dwyer, Re 3604
Dyer v. Hutchins 413

y. State 105
Eads v. Marshall 208, 212
‘Eames v. Salen & L. R.

oO. 666

v. Tex. & N. O. R. Co.

580, 585
Earhart v. Youngblood 386
‘Earl v. Van Alstine 383
Early v. Wilson 431
Earp vy. Faulkner 349
East Kingston v. Towle 418

East St. Louis & C. R. Co.
v. Gerber

OF CASES.

East St. Louis & St. L. E. St.
Co. v. Wachtel 603,

604,
East Tenn & Ga. R. Co. v.
Whittle 461,
E. Tenn., Va. & Ga. R. Co.
v. Baker
v. Bayliss 586, 580, 638,
v. Burney
vy. Culler
v. Deaver 503,
v. Feathers
v. Hale
v. Henderson
v. Herrman
v. Johnston 463, 460,
v. Scales
v. Selcer 585,
v. Watson 586, 580,
Easter v. Goyne

v. Little Miami R. Co.
Eastman v. Rice

v. Sanborn
Easton v. McNeilly
Eastwood v. La Crosse City

. Co.
v. Miller
Eaton v. Lancaster
v. Oreg. R. & N. Co.
v. Winnie
Eaves v. Dixon
Eberhart v. Reister
Eck v. Hocker
Eddy v. Evans 267, 595,
vy. Farmers’ Mut. Ins. Co.
v. Kinney
v. Lafayette
Edgerly v. Bush
vy. Concord
Edmonds v. State
Edmonston v. Wilson
Edward v. State
Edwards oS Buffalo, R. & P.
R.

Vv. Hannibal & St. J. R.
Co.

v. Irvin

yv. Kan. City, St. J. & C.
B. R. Co.

yv. Phila. & R. R. Co.

Eells v. ne Louis, K. & N.

W. Co.

225,

Egerton v. oe

Eggleston v. Columbia
Turnp. Co.

Ehret v. a City, St. J. &
C. Co. 660,

El Dante Stee v. Meiss

713

PAGE

628
482

586
645
589
643
594
506
516
632

480
489
590
592
595

3
368
446
687
348

92
390
284
609
161
150
638
104
226
174
a

687

653
5I

677
626

470
363

221

55

714 TABLE

EI Paso v. Dolan

Eley v. Lytle 126
Elgin Co. Road Trustees v.

Innes 153
Elliott v. Hannibal & St. J. R.

Co. 6690

v. Herz 417

v. Kitchens 291

v. Martin 459

v. Osborn 531

Ellis v. Beale 362

v. Chinnock 100

v. Hilton 163

v. Loftus Iron Co. 277, 375

‘v. Lynn & Boston R. Co. 603

v. Reaves 105

v. State 44

Ells v. Pac. R. Co. 661

Elmore v. Fitzpatrick 46

Elmsley v. Ga. Pac. R. Co. 587

Elton v. Brogden 90, 93

v. Jordan 90, 93, 94

Elwood v. McDill 100

Emerson v. Brigham 82

vy. St. L. & H. R. Co. 490
Emmerson vy. St. Louis & H.

Co. 666, 668

v. State 177

Emmerton v. Matthews 82
Engesether v. Ga. North. R.

Co. 510
Engle v. Sohn 56
English v. Mo. Pac. R. Co.

256, 649
Enright v. Dodge 106
v. San Fran, & S. J. R.

Co. 661
Enrique, The 476
Erbes v. Wehmayer 288
Erdman v. Gottshall 264, 280
Ericson v. Duluth & I. R. Co. 613
Erskine v. Adeane 149
Estes v. Atlantic & St. L. R.

oO. 671
Estey v. Cooke 443
Estill v. N. Y., L. E. & W.

R. Co. 507
Euripides, The 495
Evans v. Dunbar 508

v. Fitchburg R. Co. 506
v. Mason 431
v. Pratt 368
v. St. Paul & S.C. R.

Co. 621, 658
v. Sherman, S&S. Rk

Co. 618
Evans-Snyder-Buell Co. v.

Turner 102

OF CASES.

Evansville & C. R. Co. v.

Barbee 675.
Evansville & T. H. R. Co. v.
Mosier 670, 600, 692°
v. Willis 682
Everitt v. Davies 533
Evertson v. Frier 430
Ewart v. Graham 569°
Ewing v. Chic. & A. R. Co.
. 609, 669.
v. Versailles Tp. 198
Eyers v. Haddem 98
Fairchild v. Bentley 307
v. Rich 418

Fairmount Un. Jt. Stock
Agricul. Assn. v.

Downey 371
Fake v. Addicks 386, 403
Falardeu v. Couture 417
Falconer v. European & N.A.

R. Co. 590:
Fales v. Cole 122°

Falkland Islands Co. v. Reg. 37
Fallon v. O’Brien 323, 338, 415

Faris v. Lewis 342
Farkas v. Powell. 430
Farley v. Chic., M. & St. P.
R. Co. 344
v. Picard 388
vy. St. Louis, K. C. & N.
R. Co. 633
Farmer v. Findlay St. R. Co. 250
v. State 536:

v. ee & W. R.

oO. 616:
Farmers’ High Line Canal &

R. Co. v. Westlake 202
Farney v. Kerr IIO, 442°
Farr v. Gt. West. R. Co. 471
Farrar v. Eash 189°

v. Greene 195
Farrell v. Oldtown 219:

v. Un. Trust Co. 634
Farrer v. Nelson 70°
Faulk v. Iowa County 207
Fawcett v. York & N. M..R.

Co. 664.

Fein v. Ty. 180°
v. me Loan & a

, 444
Baibars v. Del, L. & W. ze

Co. 505.
Feltman vy. Chinn 441
Fenn v. Harrison 84
Fennell v. Ridler 74

v. Seguin St. R. Co. 148:

Fennings v. Granville 24.

TABLE

PAGE
Fenton v. Montgomery 267

peas v. Miami Powder

oO. 148
v. Miller 17, 19
Ferrias v. Peo. 533, 544
Ferris v. Can. Pac. R. Co. 664
v. St. Louis & H. R. Co. 666
Ferriss v. Schreiner 451
Ficken v. Jones 281
Field v. Adames 305
v. Bogie 314
Fielder v. Starkin 96
Filburn v. Peo. Palace &
Aquar. Co. 373
Fillmore v. Booth 261
Filson v. Crawford 358

Findlay v. Bear 62

Fink v. Evans 5902
Finley v. Bradley 268, 274
Finnem v. State 539
Finney v. Curtis 391
Firemen’s Fund Ins. Co. v.

West Refrg. Co. 162

First Nat. Bk. v. Barse
Commn. Co. 440, 443
v. Brown 73
v. Erreca 106
vy. Hughes 81
v. Robinson 84
v. Scott 110
v. Western Mort. & Inv.
Co. 105, 1c6, 109
Firth v. Bowling Iron Co.
124, 125, 149
Fishell v. Morris 452
Fisher v. Clark 348
y. Farmers’ Loan &
Trust Co. 620, 628
v. Kyle 430
v. Pa. R. Co 596
vy. Porter 102
v. Steward 17
Fitch v. Casler 458
Fitchett v. Canary ASI
Fitterling v. Mo. Pac. R. Co. 671
Fitzgerald v. Brophy 405
Fitzwater v. Stout 316
Flagg v. Chic., D. & C. G.

T. J. R. Co. 605, 625, 684
Flaherty v. Harrison 604
Flansburg v. Basin 306, 413
Flattes v. Chic, R. I. & P.

R. Co. 590
Fleeming v. Orr 381, 412
Fleet v. Hegeman 30, 32

Fleming v. Can. Pac. R. Co. 673
Fletcher v. Jacob Dold Pack-
ing Co. 75

OF CASES.

A.

: 604,
Flint v. Luhrs
Flint & P. M. R. Co. v.
Lull
Flower v. Adam
Flowers v. Franklin
Floyd v. P. & R. R. Co.
Flushing v. Carraher
Fogg v. Nahant
Foley v. East Flamborough

Flewelling v. Lewiston &
R. Co

p.

Folger v. Hinckley

Folmar v. Curtis 312,

Folsom v. Concord & M. R.
Co.

Fondren v. Durfee

Fontaine v. South. Pac.
Co.

Fonville v. Casey

Houle Atlantic & N.C. R.

oO.
Ford v. Ford
v. McGregor
v. Oliphant
vy, St. Louis, I. M. & S.
R. Co.
vy. Taggart
v. Tynte
v. Wiley 534,
Fordyce v. Hardin
v. McFlynn 461, 482, 486,
Forget vy. Laverdure
Forks Tp. v. King
Forman v. Proctor
Forney v. Geldmacher
Forsyth v. Walsh
Fort v. Goodwin
Ft. Scott, W. & W. R. Co. v.
Holman
vy. Sparks
Fort Smith v. Dodson
Ft. Wayne, C. & L. R. Co, ¥.
Herbold 676,
v. O’Keefe
v. Woodward
Ft. Wayne, M. & C. R. Co. ¥.
Hinebaugh
Ft. Worth & D. C. R. Co. v.
Daggett 495, 497,
. Greathouse 500,
. McAnulty
. Williams
. Word
Forth v. Simpson
Fortune v. Harris
Foshay v. Glen Haven
Fossett v. State

R.

<<<<

715

PAGE

628
450

716 TABLE

PAGE

Foster v. St. Louis, I. M. &
S. R. Co. 582, 658, oe

v. State 185, I

Swope 154
echer v. Ont. & Queb. R.

Co. 689, 696
Fowler v. Linquist 208
Fox v. Dunckel 309

v. McGregor 459

vy. Mohawk & H. R.
Humane Soc. 541
v. Young 426
Frammell v. Little 405
Fraser v. Bell 307

v. Hood 376, 388, 390
Frazee v. Milk 347
Frazer v. Kimler 325
Frazier v. Goar 316

v. Nortinus 267

v. State 174
Fremont, E. & M. V. R. Co.

v. Pounder 584

French v. Cresswell 263
v. Vining 126, 163
v. Western N. Y. & P.R.

Co. 665, 668
Friedmann v. McGowan 399, 402
Friday v. Floyd 312, 313
Fritsch v. a es 237
Fritts v. N. Y. & N. E. R. Co.

597, 627
Fritz v. Milwaukee & a Pe

R. Co. 610
Frost v. Milwaukee & N. R.

Co. 588, 624

vy. Plumb 432
Frout v. Hardin 308
Fry v. Hubner 263
Fuller v. Pt. Royal & A. R.

Co. 640
Fulliam v. Hagens 434
Fulton Co. Commrs. v. _

Rickel 223
Fultz v. Wycoff 348, 447
Funk v. Paul 107
Furness v. Union R. Co. Sor
Gabay v. Lloyd 163
Gage v. Pontiac, O. & N. R.

Co. 210
Galena & C. U. R. Co. v.

Griffin 683
Galer v. Rawson 232
Galesburg Elec. Motor &

Power Co. v. Man-

ville 602, 603
Gallagher v. N. Y. & N. E.

~ R. Co. 682, 689

OF CASES.

PAGE

Galpin v. Chic. & N. R. Co.
we 628, 640

Galveston, H. & S. A. R. Co.

v. Armstrong 405
v. Balkam 505
v. Dyer 693
vy. Freeman 632
v. Herring 497, 499
v. Houston 465
v. Ivey 496, 497
v. Jackson 479, 480
v. Johnson 515, 516
v. Kelley 522
vy. Short 510
v. Tuckett 517
v. Walter 658
v. Warnken 487
vy. Wessendorf 674
v. Williams 510
v. Wink 5890

Galveston Land & Imp. Co. v.

Pracker 154
Galvin v. Parker 412
Gamble v. Mullin 164
Gann vy. Chic. Gt. Western’R.

Co. 499, 502, 519
Gannon v. Wilson 336
Gans v. Williams 44
Garabrant v. Vaugh 118
Garcia v. Gunn 14, 557, 570
Gardiner v. Colyer 573

v. State 171
Gardner v. Hart 406

v. Smith 688
Garment v. Barrs 89
Garrity v. Detroit Citizens’

St. R. Co. 627
Garver v. Hawkeye Ins. Co. 162
Gaskill v. State 554
Gates v. Parrott 440
Gay v. State 357
Gearns v. Baker 570
Geddes v. Remington 79
Gee v. Lucas 87
Geer v. Conn. 557, 559
Gelley v. Clerk 457
Gelvin v. Kan. City, S. J. &

C. B. R. Co. 518, 519
Gempp v. Bassham 358
Gentry v. Little 322

Ga., M. & G. R. Co. v. Harris 590
Ga. Pac. R. Co. v. Fullerton

645, 646, 647
Ga. R. & Bkg. Co. v. Ander-
son 637, 638, 695
v. Beatie 475
v. Bird 639

v. Clary 595

TABLE OF CASES. 717

Ga. R. & Bkg. Co. v. Mayo

. Middlebrooks

Monroe

Neely

Parks

Spears

Walker

Wall

Wilhoit 590,

Gerdes v. State

German v. Chic. & North-
western R. Co.

German Ins. Co. v. Fairbank

es Hannibal & St. J.

aen84885;

Gettring v. Morgan
Ghen vy. Rich
Ghent v. State
Gholston v. State
Gibbons v. Gouverneur
v. Van Alstyne
Vv. ye ee & S. St.

a v. Coykendall

- State
Giblin v. Nat. Steamship Co.
Gibson v. Stewart
Gifford v. Hulett
Giger v. Chic. & N. R. Co.
Gilbert v. Mo. Pac. R. Co.

v. Stephens 295,
Gilbertson v. Richardson
Gilchrist v. Reg.

v. Schmidling
Giles v. Boston & M. R. Co.
Giles Loring, The
Gill v. Atlantic & G. W. R.

Co.
Gillam v. ao City & St. P.
R.

Gillet v. on 8 17,
Gillett v. Western R. Corp.
163, 257,
Gilliland v. Chic. & A. R. Co.
Gillis v. Great Western R.
Co.
Gillum v. Sisson
Gilman v. European & N. A.
R. Co. 661,
v. Noyes
v. Sioux City & P. R. Co.
Gilmore v. Federal St. & P.
V. Pass R. Co.
v. Hannibal & St. J. R.
Co.
v. Holt
v. Newton
Gilson v. Fisk

PAGE

Giroux vy. Stedman 83
Givens v. Paris 143
Gladman v. Johnson 40
Glancy v. Glasgow & South-

Western R. Co. 509
inden ue M. & St. P.

R. 655
ace v. Chic. & A. R.

Co. 519
Gleckler v. Slavens 75
Glidden v. Moore 382

v. Pooler 81, 101
Godden v. Coonan 158
Godding v. Colo. Springs

Live-Stock Co. 438

Godeau v. Blood 396

Godfrey v. Streator R. Co. 246
Godwin 4 palmingion & W.
°

gc 645
Goener v. Woll 202
Goff v. Kilts 17, 19
Goggin v. Kan. Pace. R. Co. 508
Golding v. Stocking 284
Goldrich v. Ryan 83
Goldsmith v. Tower Hill

Steamship Co. 520, 521
Gomez v. State 184
Gooch v. Bowyer 15

v. Faucett 306
v. State 171
Good v. Galveston, H. & S.

A. R. Co. 508, 510
Goodburn v. Marley 362
Goode v. Martin 402
Goodfellow v. Meegan 435
Gooding v. Atchison, T. & S.

F. R. Co. 62
Goodman v. Gay 205
Goodrich v. Peo. 83

v. Willard 440
Goodsell v. Dunning 316:
Goodwin v. Toucy 542
Goodwyn v. Cheveley 302
Gordon v. Boston & M. R.

Co. 606

vy. Chic. S. F.& K. CLR.

Co. 655, 688

vy. Great Western R. Co. 504
Gorman v. Pac. R. Co. 207
v. Williams 451
Gosselink v. Campbell 309°
Gottwald v. Bernheimer 329
Gougeon v. Contant 328
Gould v. Bangor & P. R. Co. 156:
v. Schermer 207, 255
Gove v. Watson 433

Gowan v. St. Paul, S. & T. F.
R. Co. 272:

718 TABLE
PAGE
Grace .. Gulf & C. R. Co.
677, 694
v. McElroy 363
y. Willets 32
Gracie v. Hedderwick 380, 412
Graham v. Chautauqua Co.
Commrs. 5!
v. Delaware & H. Can.
Co. 581, 665
vy. Frazier 76
v. Payne 382
v. Smith 58
y. Spettigue 302
y. Winchell! 441
Grand Rapids & I. R. Co. v.
Cameron 613
y. Jones 675, 577
v. Monroe 657
yv. Southwick 691
Grand Trunk R. Co. v.
Bourassa 627
v. Rosenberger 596
y. Sibbald 584, 599
vy. Vogel 469
Grange v. Silcock 130
Grannan yv. Westchester Rac-
ing Assn. 370
Grant v. Barclay 130
vy. Hannibal & St. J. R.
Co. 589
v. Ricker 412
State 178
raises v. Chic., M. & St. P.
R. Co. 657
v. Moses 424
v. North. Pac. R. Co. 650
Gray v. Henry County 359
v. North British R. Co.
493, 518
v. Second Ave. R. Co. 626
v. Tompkins 320
eo v. Lynch 349, 350
Whatley 301
Grent Northern R. Co. v.
Morville 471
v. Swaffield 485
Great Western R. Co. v.
Davies 672
vy. Decatur 5098
v. Geddis 505
vy. Hanks 660
vy. Hawkins 489
v. McCarthy 470, 474
v. Thompson Say
Vilaire 674
Ceesleon, Fed. St. & P. V. P.
R. Co. 593, 602
Green y. Doyle 288

or

CASES.

PAGE
Green v. Duckett 320
v. Eastern R. Co. 508
vy. Kan. & T. Coal Co. 151

v. St. Paul, M. & M. R.
Co. 613, 660, 678
Greenawalt v. Wilson 443
Greenby v. Brooks 342

Greencastle v. Martin 318

Greenwood v. Callahan 252
HESee v. Gregg 263, 204

Wyman 432
Gaes v. Adams 244

v. Chic. & Northwestern

R. Co. 462

v. Munn 4

v. West Midland R. Co. 473
Gresham v. Taylor 286, 308
Grey v. Bartholomew 30
Gribble v. Sioux City 252
Gridley v. Dorn 361
Gries v. Zeck 399, 400, 416
Grieve v. Ill. Cent. R. Co. = 514

Griffin v. Martin 270, 297,
Griffith v. Can. Pac. R. Co. 664

Griggs v. Fleckenstein 323, 333

v. Macon 66

Grigsby v. ae 340

Grimes v. 345
Vv. Leuieaie N. A. & C.

R. Co. 508
Grimmell v. Chic. & N. R.

Co. 587

Grinnell v. Cook 442, 457, 458,

v. Taylor 405
Grise v. State 525, 544
Groat v. Gile 0

Grogan v. Big Muddy Coal &

Coke Co. 233
Grondin y. Duluth, S. S. & A.

R. Co. 685
Groucott v. Williams I5I
Grove v. Berlington, Cc. R.

R. 623
Grundy v. Lemenlls &N.R.

Co. 594, 639
Grymes v. Shack 8, 36, 38
Guilfoos v. N. Y. Cent. & H.

R. R. Co. 156

Guimond v. Montreal 325
Guinn v. Wabash, St. L. «& P.

R. Co. 304
Gulf, C. & S. F. R. Co. v.

Baird 464

v. Baugh 500

v. Box 604

v. Cash 621, 654

y. Cole 52c

v. Eddins 465

TABLE OF CASES. 719

Gulf, C. & S. F. Co. v.
Elli

lidge 652
y. Ellis, 54 Fed. Rep. 481 592
y. Ellis, 70 Tex 307 670
vy. Ellison 493, 498
vy. Gann 495, 498
vy. Gasscamp 24Y
v. Godair 480, 517
vy. Gray 49
v. Hudson 643, 654, 694
yv. Hughes 520
v. Hume 494, 499, 504,
510, 521
v. Johnson 586
v. Keith 648, 654
v. Kemp 522
vy. McAulay 501, 519
v. McCarty 518
vy. McCorquodale 499
vy. Martin 520
v. Ritter 583
v. Rowland 659, 670, 680
v. Short 464
v. Simmons 405
vy. Stanley 508, 510, 516
vy. Thompson 465
vy. Trawick 481
v. Vaughn 465
vy. Wallace 683
y. Washington, 267, 586,
641, 642, 663, 689
v. Wedel 644, 647
v. Weems 685
y. Wilhelm 497
v. Wilson 465
v. Wood 478, 494
yv. Wright 508
Gulf, W. T. & P. R. Co. v.
Griffith 465
y. Staton 517
Gulliver v. Blauvelt 245
v. Cosens 320
Gump v. Showalter 459
Gunderson v. Richardson 341
Gundry v. Feltham I21, 573
Gundy v. Biteler 105
Gunn v. Wis. & M. R. Co.
623, 626
Gunter v. Cobb 295
Guyer v. Reg. 563
Hafner v. McCaffrey 95
Hagan v. Casey 278

Hagebush v. Ragland 419
Wager v. South. Pac. R. Co. 623
Hagerstown v. Witmer, 299, 322
Haggarty v. St. Louis Ice
Manuig. & S. Co. 568

Hahn v. Kordula 417
Hahnke v. Friederich 402
Haigh v. Bell 298
Haigh v. London & North-

Western R. Co. 671

Hale v. Mo. Pac. R. Co. 487
v. Smith 428
_ _v. Wigton 441
Hall v. Atkinson 417
yv. Colyer 95
v. Corcoran 432
v. pea 116
v. Harding 0.
v. Huber 8
v. Miller 188
v. Pickard 432
v. Renfro 505
v. Robinson 574
v. Rogerson
v. State, 41 Tex. 287 174
v. State, 22 Tex. App. 632 178
v. Warner 455
Halliday v. St. Louis, K. C. &

N. R. Co. 464
Hallyburton v. Burke Co.

Fair Assn. 3890
Halty v. Markel 436
Halverson v. Minneapolis &

St. L. R. Co. 656
Hamby v. Samson 61
Hamil v. Cox 321
Hamilton v. Mo. Pac. R. Co. 690

vy. Pandort 495

vy. Wabash, St. L. & P. R.

Co. 644

v. West. N. C. R. Co. 520
Hamlin v. Mack 303, 318
Hammack v. White 328

Hammond v. Melton 380, 393

vy. S.C. &P.R. Co. 610
Hance v. Cayuga & S. R. Co. 680
Hanch v. Ripley 109, IIL
Handford v. Palmer 424
Hankins v. Ottinger 364, 365
ee Terre Haute & I. R.

oO. 610
Hannah v. Shepherd 300
Hannam v. Mockett 40
Hannibal v. Campbell 242
Hannibal & St. J. R. Co. v.

Husen 344, 346

v. Kenney 614, 628
Hanrahan v. Cochran 339
Hanscom v. Burmood 316
Hanson v. Chic., St. P. & K.

C. R. Co. 668

v. Hartse 83

v. Millett A4

720 TABLE OF CASES.

PAGE
Hanway v. Boultbee 132
Harbeston v. Kan. City, Ft.

S$. & R. Co. 582
Harby v. Wells 446
Hardcastle v. South York-

shire R. Co. 241
Hardeman v. State 172
Hardenburgh v. Lockwood

297, 301

Hardesty v. Fleming 54

Hardiman v. Wholley 288, 380

Hardin v. Newell 438
Raed ne M. & St. P. 2

75

Hardwick > vy. Brookover 352

Hardy v. Anderson 89

v. Lemors 422

Hare v. Fuller 423

Hargis v. St. Louis, A. & T.

R. Co. 627
Harkey v. Jones 103
Harlan v. Wabash, St. L. &

P. R. Co. 579, 595
Harless v. Adams 363
Harley v. Eutawville R. Co. 591
Harmon v. Callahan 163

v. Columbia & G. R. Co.

625, 634
Harned v. Mo. Pac. R. Co. 509
Harnett v. Miles 23, 561
Harper v. Marcks 527
v. Mo., K. & T. R. Co.
579, 625
Harpers v. Great North of
Scotland R. Co. 339
Harrell vy. Albemarle & R. R.
Co. 508, 606
v. State 168
Harriman vy. Fifield 317
Harrington v. Chic., R. I. &
P. R. Co. 666
v. Miles 63
v. Snyder 422
v. State 175, 176
Harris v. Brummell 14I
v. Eaton 136, 138
v. Elder 20
v. First Nat. Bk. 76
v. Fisher 399, 409
v. Great Barrington 202
v. Hatfield 349
v. Midland R. Co. 461, 814
v. Mobbs 236
v. North Ind. R. Co. 480,
496, 498
v. Pence 71
v. Slater 34
v. Wabash R. Co. 636, 601

Harris v. White 361, 364,
v. Woodruff
Harrison v. Adamson 267,
v. Brown
v. eee & St. Ee
v. Doice of Rutland
v. Marshall
v. Mo. Pac. R. Co.
Harryman v. Titus
Hart v. Chic. & Northwest-
ern R. Co. 470,
v. Pa. R. Co.
v. State
v. Washn. Park Club 327,
Hartiord v. Brady
Hartley v. Harriman
Hartley State Bank v. Mc-
Corkell
Hartman v. Keown
Harvey v. Com.

v. State
v. Terre Haute & I. R.
Co. 423,

Harwell v. State

Harwood v. Bennington & R.
R. Co. .

Hasbrouck v. Bouton

Hassa v. Junger

Hastings v. N. Y., O. & W.
R. Co.

Hatch v. Marsh

Hathaway v. Tinkham

Haughey v. Hart

Havey v. Petrie

Hawke v. Dunn

Hawken v. Shearer

Hawker v. Balt. & O. R. Co.

: 590,
Hawkins y. Great Western
. Co.
v. State
Hawks v. Locke
Hawley v. Smith
Haworth v. State
Haws v. Fire Assn. of Phila.
Hawthorn v. State
Haxton v. Pittsb., C. & St. L
R. Co.
Hay v. Bennett
Hayes v. Smith 302, 399,
v. South Wales R. Co.
v. State
Hayman v. Hewitt
Hays v. Richie

PAGE

365

Haywood v. State 9, 10, 36, 28

Hazard v. Council Bluffs
Hazel v. People’s Pass R. Co.

240
602

TABLE OF CASES.

Hazelbaker v. Goodfellow
Head v. Tattersall
Headen v. Rust

Healey v. Gray

Healy v. Jordan

Heap v. Burnley Union
Heaps v. Jones

Heard v. State
Hebbard v. Berlin
Hecht v. Harrison
Heilbron, Ex parte
Heiligman v. Rose
Hein vy. Fairchild
Heisrodt v. Hackett
Heister v. Fawn Tp.

Hellen v. Noe
Heller v. Abbot 619.
v. Chic. & G. T. R. Co.
463,

Hemphill v. Boston
Hendershott v. West.
Tel. Co
Henderson yv. Barnes
v. Greenfield & T. F. St.

R. oo
v. Har
v. Webas, St. L. & PR.

oe & C. Gravel-Road
Co. v. Cosby
Hendrick v. Boston & A. R.
Co. 487, 515.
Hendrie v. Kalthoff
Hendrix v. St. Joseph & St.
L. R. Co.
Hennigan v. McVey
Henry v. Dennis
v. Richardson
v. Salisbury
v. State
Henson v. St. Louis, I. M. &
S. R. Co.
Herold v. Meyers
Herr y. Lebanon
Herrick v. Gary
v. Sullivan
Herron v. West. Un. Tel. Co.
Heskett v. Wabash, St. L. &
P. R. Co.
Hess v. Lupton
Hester v. Windham
Hewison v. New Haven
Hexamer v. Southal
Hey v. Fille isielte
Heyman v. P. & R. R. Co.
eva -y. Boston & A. R.

Un.
127,

124,

148,

124,

Heyward’s Case
46

Hickman y. Hickman
v. Thomas
Hickok v. Buck
Hides v. Littlejohn
Higgins v. Boston

v. Wilmington City R.
Co. 590,
Higgs & Thrale
Hill v. Applegate
v. Ball
v. Boston, H. T. & W. R.
Co.

(Viscount) v. Bullock
vy. Concord & M. R. Co.
v. Mo. Pac. R. Co. 614,
v. New River Co.
v. Owen
v. Rome St. R. Co.
v. State, 43 Ala. 335
v. State, 104 Ala. 64
v. State, 57 Wis. 377
v. Tionesta Tp.
Walker
Hiltsbors v. Ivey
Flat v. Grand Trunk R.

oO.
Hilton v. Adams
v. Green
Hinckley v. Emerson
v. Somerset
Hindman v. Oreg. R. & Nav.

571,

Co. 617,

v. Timme
Hine v. Munson 266,
v. Wooding 266,

Hirst v. Molesbury
Hitchcock v. Tower
Hite v. Blandford
Hoag v. Orange Mountain
Land Co.
Hobart v. Young
Hobbs v. Bland
v. First Nat. Bk.
Hoboken Land & Imp. Co. v.

Lally

Hobson vy. State 522,
Hockersmith v. Hanley
Hodge v. Bennington

v. N. Y. Cent. & H. R.

R. Co.
y. State, 98 Ala. Io
v. State, 11 Lea (Tenn.)
528
Hodgman v. West Midland
R. Co.
Hoffman v. Oates
Hogarth v. Jackson
Hoge v. Norton

77;

722 TABLE
PAGE
Hohl v. Chic. M. & St. P.

R. Co. 613, 619
Holcomb y. Keliher SI
act vy. Shattuck 294, 207

Terrey 302, 320
Holder y. Chic., St. L. & N.

O. R. Co. 582
Holladay v. Marsh 271, 207, 301
Holland v. West End N. G.

R. Co. 661
Hollenbeck v. Johnson 279
Hollender v. N. Y. Cent. &

H. R. R. Co. 597
Holliday v. Morgan 93
Holman v. Chic, R. L &

P. R. Co. £07
Holmes v. Mather 332

v. Tyson 89
Holsapple v. Rome, W. & O.

R. Co. 472
Holst v. Roe
Holstine v. Oreg. & Cal. R.

Co. 617
Holt v. Melocke a
Holtz v. Peterson
Home Constr. Co. v. Church Fa
Homer v. Thwing
Honeyman v. Or. & C. R. Co. ae
Hook v. Worcester & N. R.

0. 673, a

Hooker v. McAllister

Hooper v. Chic., St. P., M. an

O. R. Co. 683

v. Kittredge 316

y. State 172

Hoops v. Ipava 359

Hoover v. Epler 442, 443

y. Peters 83
Hopkins v. Butte & M.

Comm. Co. 125

y. Crowe 541

v. Ott 314

y. Rush River 244

vy. Tanqueray 88
Hopkins Fine Stock Co. v.

Reid 108
Horn vy. Atlantic & St. L.

Rk. Co. 621

y. Raine 574

v. State 48
Hornbein v. Blanchard 405
Horne v. Meakim 448

v. Memphis & O. R. Co. 640
Horner v. Williams 616
Horry v. Glover 45
Horseman v. State 175
Horstick v. Dunkle 198
Horton v. Taunton 194, 202

OF CASES.

Hotchkin v. Philipsburg
Houfe v. Fulton 199, 200, 201,
202,
House v. Fort
v. Metcalf
Houston v. State, 13 Ark. 66
y. State, 98 Wis. 481
Houston & G. N. R. Co. v.
Meador
v. Van Bayless
Houston & T. C. R. Co. v.
Carruth
vy. Davis
v. Jones
vy. Muldrow
vy. Nichols
v. Simpson
v. Terry
vy. Williams
v. Wilson
Heuste E. & W. T. R. Co.
Adams
eee yv. Bromley
Howard v. Babcock
v. Bartlett
vy. Burns
v. Emerson
v. Louisville, N. O. & T.
R. Co.
v. North Bridgewater
vy. Sheward
Un. Freight R. Co.”
Fewarth v. MeGugan
Howe v. Whited
Howe Mach. Co. v. Pease
Howes v. Newcomb
Howison v. White
Howlett v. Haswell
Howman v. Angus
Hubbard v. Preston
Hubbell v. Yonkers
Huber v. Chic., M. & St. P.
R. Co.
Hubert v. Bedell
Hubotter v. State
Hudson v. Chic. & N. R. Co.

642,
v. Foott
v. North. Pac. R. Co, 515,
vy. Roberts
Huey v. Indianap. & V. R.
Co.
Huffman v. State
v. Walterhouse
Hughes v. Boyer
v. Fond du Lac
v. Hannibal & St. J. R.
Co. ISI,

618,

77, 89

PAGE

249

203

152

TABLE OF CASES, 723

PAGE
Hughes v. Quentin 163, 433
vy. Ty. 168
Huist v. Buffalo & L. H. R.
Co. g 4
Hulett v. Smith
Hull v. Hull ar
v. Kansas City 211
Humbert v. Larson 96
Hummell v. Wester 320
Humphrey v. Douglass 140
Hungerford v. Syracuse, B. &

N. Y. R. Co. © 673
Hunt v. Gray 94
y. Lake Shore & M. S.

R. Co. 674

v. Pownal 205

v. State, 55 Ala. 138 184

v. State, 3 Ind. App. 383 537

v. Wyman 421
Hunter v. ee St. P., M. &

O. R. Co. 675, 676
Huntly, Marquis of, v.

Nichol 560

Huntoon v. Trumbull 335
Hurd v. Grand Trunk R. Co.

600, 605

. Lacy 153, 154

Raed & B. R. Co. 265

Hise v. Estabrooks 102

Hussey v. King 390

v. The Saragossa 51

Huston v. Plato 96, 100
Huston Bros. v. Wabash R.

Co. 483
Hutchinson v. Chic., M. & St.

P. R. Co. 627
v. Chic., St. P., M. & O.

R. Co. 486

y. Hutchinson 1890

Hutto v. State 48

Hutton v. Murphy 163
Hyatt v. New Tak LE &

W.R. Co. 581, 683, 693

Hyde v. Davis 96

v. Pryor 117

Hyer v. Chamberlain 578
Iba v. Hannibal & St. J. R.

Co. 669

Ibbottson v. Henry 204, 317

Ibottson v. Peat 120, 572

Idol v. Jones 8, 17

Illidge vy. Goodwin 326
Ill. Cent. R. Co. v. Adams

469, 492

y. Arnold 666, 673

v. Baker 588

v. Beebe 463, 467, 468

PAGE
Ill. Cent. R. Co. vy. Brels-

ford 505

v. Burns 586
v. Carraher 152, 654
v. Crawford 583
v. Crider 649, 650, 661
v. Finnigan 45, 646
v. Goodwin 628
v. Hall 490
v. Hayes 494, 501
v. Jordan 5902
v. Kanouse 687
v. Larson 507
v. Middlesworth 628
v. Noble 586
v. Person’ 595
v. Peterson 496
v. Phelps 597
v. Simmons 501, 519, 521
v. Swearingen 658, 686
v. Teams 490
v. Tilman 630
v. Waters 500
v. Wren 580

Ill. Live-Stock Ins. Co. v.

Kirkpatrick 160
v. Koehler 159, 161

lott v. Wilkes 3
Independence v. Trouvalle 298
Ind, B. & W. R. Co. v.

Drum 678
v. Overton 635
v. Quick 660, 683

Ind. Cent. R. Co. v. Moore 696
Ind., I. & I. R. Co. v. Dool-

ing
Indianapolis & Cinc. R. Co.

v. Caldwell 260
v. Elliott 631
v. McClure 260, 655
vy. Guard
v. Means 639
v. Oestel 685
v. Snelling 653
v. Townsend 667
v. Wright 620
Indianapolis & M. R. Co. v.
Solomon 633
Indianapolis & St. L. R. Co.
v. Christy 686
v. Hall 658
v. Jurey . 506
Indianapolis & V. R. Co. v.
Sims
Indianapolis, B. & W. R.
Co. v. Lyon 691
v. McBrown 582
yv. Strain 488, 521

724 TABLE
PAGE
Indianapolis, C. & L. R. Co.
v. Harter 610
v. Ray 688
v. Warner 637
Indianapolis, D. & W. R. Co.
v. Clay 683
Indianapolis, P. & C. R. Co.
v. Allen 469
v. Bishop OOI
v. Crandall 683
v. Marshall 656
v. Mustard 646, 649
v. Petty 629, 661
y. Shimer 673
v. Thomas 662
Truitt 658
lndiamapelis Union R. Co. v.
Boettcher 600
Ingalls v. Green 110
v. Vance IIO
Ingallsbee v. Wood 457
Ingraham v. Union R. Co. 87
Ingram v. Sumter Music
House 80
Inman vy. C., M. & St. P. R.
Co. 611, 622
Insurance Co. vy. Seaver 370
Internat. & G. N. R. Co. v.
Anderson 501
v. Bender 688
v. Cocke 618
v. Dimmit County —
ure Co. ‘9, 516
v. Dunham 618, 634, ae
686, 690
v. Garrett 500
v. Hughes 583, 641
v. Hynes 503
v. Lewis 493
v. McRae 405
v. Mahula 465
v. Parish 475, S21
v. Ritchie 502
v. Tisdale 503
Receivers v. Wright 500
Inter-State Galloway Cattle
Co. v. McLain 104
Inyo County v. Erro 55
Towa, The 477
Trelard v. Higgins 8, 58
v. Smith 360
Irving v. Britton 363
Irwin v. Mattox 116
Isabella, The 495
Isbell v. N. Y. & N. H.R.
Co. , 619
Isham v. Dow 126

Ismay v. Blake

OF

CASES.
PAGE
Ivey v. State 184
Ivory v. Deer Park 206
Jack v. Hudnall 286.
v. Ontario & Simcoe R.
Co. 299.
Jackson v. Bellevieu 200
v. Castle 234
v. Cummins 439, 440, 442
v. Greenville 254
v. Harrison 126
v. Hasseall 109, 452
v. Morris 313
v. Nelson 369
v. Robinson 410.
v. Rutland & B. R. Co.
618, 667

vy. St. Louis, I. M. & Ss.
R. Co. 641, 649
y. Smithson 304
v. State 50

Wetherill 89
fackson Tp. v. Wagner 196
Jacksonville, T. & K. W. R

Co. v. Garrison 630, 641

v. Harris 630, 659
v. Jones 635, 645
vy. Prior 649
v. Wellman 639, 643,

646, 686

Jacobs v. Latour 442, 444

Jacobsmeyer v. Poggemoeller 400

Jacobson v. Christensen 103

Jacquay v. Hartzell 121, 146:

Jaeger v. Chic., M. & St. P.

«. Co; 685

James v. Wood 15, 566

Janney v. Howard 71

Janson v. Brown 128, 129

Jarvis v. St. Louis, I. M &

S. R. Co. 356
Jebb v. Chic. & CT ®, Cy,
Jeffersonville R. Co, v. Mar-

tin 577, 635
Jeffersonville, M. & I. R. Co.

v. Adams 610

v. Avery 668
v. Beatty 682
v. Brevoort 631
v. Chenoweth 689
v. Dunlap 581, 582, eae
v. Huber

v. Lyon 629, 660, 690, oo
v. Nichols 653
v. Ross 609
v. Sullivan 659, 690
v. Underhill 10

TABLE
PAGE
Jeffery v. St. Pancras Vestry
232, 239
Jeffrey v. Bigelow ee 342
Jeffryes v. Evans , 572
Jeffs v. Rio Grande W. R. ion 505
Jemison vy. Southwestern R.

Co. 58, 502, 640, 641
a v. Ballantyne 58, I4I

. New Orleans, O. & G.

'W. R. Co. 637

v. Turner 307
Jennings v. Rundall 430
ve St. Joseph & St.

» R. Co. 683

vy. Sparkman 102

v. Wayne 292

Jensen v. Un. Pac. R. Co. 650
Jenson y. Chic., St. P., M. &

. R. Co. 506

Jewett v. Gage 205
vy. Kan. City, C. & S.

R. Co. 586
Jinks v. State 177
Job v. Harlan 400
Johanson v. Howells 125
Johnson v, Ala. & V. R. Co. 484

v. Bailey 189
v. Chic, M. & St. P.
R. Co. 621
v Daw 312
v. Hill 457, 459
v. Hocker 49
v. Holyoke 256
v. McConnell 130
¥ Rieyeeols & St. L.
Co. 622
%: eee 300
v. Patterson 137, 138, 140
v. State, 37 Ala. 457 545, 555
v. State, 4 Sneed (Tenn.)
14 362
v. State, 36 Tex. 375 I7I
v. Superior 200
Johnston v. Kirchoff 323
vy. Northwestern Live-
Stock Ins. Co. 159
v. State 62
Johnstone v. Abercrombie
528, 538
v. Richm. & D. R. Co. 470
Joiner v. Winston 265
Joliet v. Seward 234, 254
vy. Shufeldt 209
Joliet & N. I. R. Co. v. Jones 663
Joliff v. Bendell 92
Jolliffe v. Brown 648, 650, 654
Jones v. Belt 327
v. Bond 592, 641

OF CASES. 725
PAGE
Jones v. Bright 30
v. Carey 389
v. Chic. B.& K. CR.
678
J. eee 313

V
v. Dashner

v. Housatonic R. Co. 238, oe
v. Ill. Cent. R. Co. 60

o

I, 595
v. No. Car. R. Co. a on
v. Owen 379
v. Perry 402
v. Richardson 70
v. Ross IOI

v. St. Louis, I. M. & S.
R. Co.

Vv. Scullard
v. Sheboygan & F. de L. a
R. Co. 619
v. Snow 236
v. State, 3 Tex. App.
498 I7I

v. State, 3 Tex. App. 228 535
vy. Western N.C. R. Co.

652, 654
v. Williams 570
v. Workman 102
Jordan v. Boone 454
v. Kent 365
Jordin v. Crump 137
Jordt v. State, 4 O. 348 181
vy. State, 31 Tex. 571 180
Joy v. Bitzer 342
Joyner v. So. Car. R. Co.
590, 591, 617, 629, 640
Judd v. Claremont 255
v. Fargo 239
yv. Wabash, St. L. & P.

R. Co. 585, 5890
Judge v. Cox 403
Judson v. Etheridge 449
Julienne v. Jackson 203
Kaes v. Mo. Pac. R. Co. 666
Kalbus v. Abbot 508

Kalen v. Terre Haute & I. R.
Cc

0. 649

Kankakee Elec. R. Co. v.
Lade 602

Kan. & A. V. R. Co. v. Ayers
500, . oS 509

Kansas City, Ft. S. & G.

Co. v. Ewing 687
v. McHenry 611, 656

Kan. City, F. S. & M. R.
Co. v. Grimes 679

Kan. City, M. & B. R. Co. v.
Cantrell 632

726 TABLE

PAGE

Kan. City, M. & B. R. Co. v.

Doggett 639, 641
v. Higdon 402
v. Holland 475
v. Jones 676
v. Spencer 677, 694
v. Watson 588, 589. 641
Kansas City, St. Jos. & C. B
R. Co. v. Simpson 470
Kansas City, Sp. & M. R. Co.
v. Kirksey 580
Kansas City Stockyards Co. v.
Hawkins 519
Kan. Pac. R. Co. v. Ball 620
v. Landis 623
v. Mower 649
v. Nichols 461, 463
vy. Reynolds 478
v. Taylor fe)
% Wiggins 611, 619
Wood 688
me v. The Italia 495
Karr v. Parks 417
Kaspar v. Dawson 358
Kearns v. Sowden 252
Keck v. Halstead 145

Keeble v. Hickeringill 119, 572
Keech v. Baltimore & W. R.

Co 639
v. Rome, O. & W. R
oO. 6o1
Keeley v. Shanley 236
Keenan v. Cavanaugh 264
v. Gutta Percha, etc.
Mfg. Co. 309, 405

Keeney v. Gd. Trunk R. Co. 500
v. Oreg. R. & Nav. Co.

296, 617, 623

Keightlinger vy. Egan 386, 398
Keilbach v. Chic, M. & St.

P. R. Co. 640
Keith v. Easton 215
v. Ky. Cent. R. Co. 481
Keliher v. Conn. River R. Co. 678
Kellar v. Garth 429
v. Shippee 432
Keller v. Fink 290

Kellerman v. Kansas City, St.

J. & C. B. R. Co. 470
Kelley v. Fond du Lac 201
v. Milwaukee 300
v. Rhoads 57
Kelloge v. King 575
v. Lovely 105
Kells v. Northwestern Live-
Stock Ins. Co. 160
Kelly v. Alderson 403
yv. Tilton 384

‘OF CASES.
PAGE
Kelsey v. Glover "205
Kelver v. N. Y., C. & St. Ms
R. Co. 682, 680
Kemp vy. State 174

Kendall v. London & S. W.

R. Co. 512
Kendrick y. Chic. & A. R.

Co. 595, 642
Kennedy v. Amer. Exp. Co. 520

v. Ashcraft 430
v. Cecil Co. Commrs. 2
v. City of New York § 203
v. Sowden 309
v. Whittie 70
Kenneson v. Framingham 352
Kennett v. Durgin 284, 285
v. Engle 396
Kennon v. Gilmer 404
Kensler v. Jennings 364, 307
Kent v. Louisville, N. O. &

T. R. Co. 641
Kentucky Cent. R. Co. v.

Lebus 585, 630
Kenyon v. Hart 574
Kepner v. Harrisburg Trac.

Co. 604
Kerr v. O’Connor 2806, 400, 414

v. Seaver 142
Kertschacke v. Ludwig 400
Kerwhacker v. C., C. & C. R.

Co. 262, 653
Keshan y. Gates 385
Kessler v. Lockwood 410
Keyes v. Minneapolis & St.

L. R. Co. 163, 648
Keyser v. Kan. City, St. J. &

CG. B. R. Co. 630
Kidd v. Reynolds 66
Kiddell v. Burnard 90
Kieffer v. Hummelstown 199

Killiker-Krebs Bdg. &
Manutig. Co. v. Birm-
ingham R. & Elec. Co.

592, 593

Kimball v. Dahoney 31

v. Rutland & B. R. Co. 461
Kimes v. St. Louis, I. M. &

S.R Co. 579, 623
Kimmish v. Ball 345
Kinard v. Columbia, N. & L.

R. Co. 582
Kincaid v. Kan. City, C. & S.°
R. Co. 480
Kinder vy. Gillespie 205
King v. Cave 95
v. Chic, R. I. & P. R.
Co. 641

v. Hayes 143. 542

TABLE

PAGE

King v. Kline 135
v. Price 76

. v. Woodbridge 478
Kingsbury v. Chic., M. & St.

P. R. Co. 692

_ v. Dedham . 215, 225
Kingsley v. Bloomingdale Tp. 210

v. Johnson 87
Kinmouth v. McDougall 384, 390
Kinney a McDermot 74

v. 116
Kinnick Chic., R. I. & P.

; R. Co. 483, 506
Kinsman v. State 549
Kiowa County v. Dunn 56
Kirk v. Norfolk & W. R. Co.

: : 580, 585
Kirkpatrick v. Mo., K. & T.

R. Co. 615
Kissam v. Jones 448
Kitchen v. Union Tp. 197
Kitchens v. Elliott 208, 301
Kitson v. Ashe 368
Kittredge v. Elliott 307
Klein v. State 319
Klenberg v. Russell 391
Klieforth v. State 568
Kline v. Green 452
Klipper v. Coffey 252
Klock v. N. Y. Cent. & H.

R. R. Co 665
Knapp v. Charles Mix Co. 51
Knauer v. Louisville 353
Knickerbocker Ice Co. v. De

Haas 404
Knight v. Abert 151, 263

v. Goodyear India Rub-

ber, etc., Co. 233

v. New Orleans, O. & G.

W. R. Co. 638

v. New York, L. E. eo

R. Co. 1, 665

v. Toledo & W. R. oi 610
Knott v. Digges 141
Knour v. Wagoner 140, I41
Knowles v. Blake 302

v. Mulder 301
Knox vy. Gr: North. R. Co.

473, 479

v. Tucker 262, 270
Kobe v. Northern Pac. R. Co. 685
Kodiac, The 560
Koestel v. Cunningham 400, 417
Kolb v. Klages 306
Koney v. Ward 389
Kornegay v. White 90
Kramer v. Chic., M. & St. P.

R. Co. 508

OF

CASES.

Krause vy. Com.
Krebs v. Minneapolis & St.
L. R. Co. 610

Kreider v. Fanning 110

Kroll v. Ernst 440, 443

Krum v. Anthony 150
Kuhn y. Chic., R. I. & P. R.

Co. 252, O11

v. Walker Tp. 250

Kumba v. Gilham 237
Kyne v. Wilmington & N. R.

Co. 598
La Borde vy. Ingraham 420
La Duke v. Exeter Tp. 240
La Flamme v. Detroit & M.

R. Co. 621, 678, 679
La Riviere v. Pemberton 150
La Salle v. Wright 251
Lacey v. Palmer 366
Lachner Bros. v. Adams

Exp. Co. 514, 516
Lackin v. Delaware & H.

Canal Co 698
Lacon v. Page 208
Ladoga v. Linn 235
Ladue v. Branch 306
Lafayette & I. R. Co. v.

Ehman 631

v. Shriner 654, 668
Lafferty v. Chic. & W. M. R.
Co. 50
y. Hannibal & St. Jig

Co. 582
Laflin v. Svoboda 284
Laherty v. Hogan 302
Laible v. N. Y. Cent. & H.R.

R. Co. 599
Lainiger v. Kan. City, St. J.

& C. B. R. Co 658
Laird v. Otsego 231
Lake v. Milliken 219
Lake Erie & W. R. Co. v.

Beam 622, 673

v. Fishback 657

v. Griffin 663

v. Helmericks 605

y. Murray 694

v. Norris 590, 593

v. Rooker 688, 690

v. Weisel 674
Lake Shore & M.S. R. Co. v.
Nat. Live-Stock Bk.

485, SII

v. Perkins 63

v. Sharpe 75

v. Van Auken 637

Lakings v. Phenix Ins. Co. 161

728 TABLE

PAGE

Lamb v. Old Colony R.
Co. 6o1
State 177
‘Lambe: yv. Grand Rapids &
I. R. Co. 210
Lambert v. Grand Trunk R.
Co. 675
v. Nicklass 440, 444
Lanchbury v. Bode 446
Lane v. Lewiston 232, 247
y. Minn. State Agricul.
Soc. 385
v. State 536
v. Wheeler 206
Lange v. Wagner 124
Langkop v. Mo. Pac. R. Co. 290
Langlois v. Drouin 331
Langworthy v. Green Tp. 210
Larimore v. Chic. & A. R.

. Co. 465
Larkin y. Taylor 261
Lathrop v. Cent. Ia. R. Co. 669
Latta v. Fowlkes 105
Laugher v. Pointer 429
Lavender v. State 182
Laverone v. Mangianti 303
Lavoie v. Reg. 477
Lawlor v. French 392, 408
Lawrence vy. Aberdein 163

y. Combs 272
v. Jenkins 149
y. King . 204
vy. Milwaukee, L. S. & W.
R. Co. 619
State 171
gre v. No. Car. R. Co. 267
Lawson v. Alliston 238
vy. Chic, R. I. & PLR.
Co. 588
Lax v. Darlington 243
Laxton v. Jefferies 501
Lay v. Cardwell 103

Layne vy. Ohio River R. Co.
267, 586, 618, 652, 675

Lazarus v. Moran 109

v. Phelps 288

Le Fopeet v. Tolman 415

Leach v. Elwood I4I

v. French 427
Learned-Letcher Lumber Co.

v. Fowler 434
Leavenworth, T. & S. R. Co.

v. Forbes 620
Leavitt _v. Jones 43
vy. Terre Haute & I. R.

Co. 597, 601, 605
vy. Thompson 3208
Leavy v. Kinsella 442

OF CASES.
PAG.
Lebanon & P. Turnp. Road

Co. v. Purdy 241
Leconfield, Lord, v. Dixon 569
Ledbetter v. State 47, 185
Lee v. Burk 349

v. Marsh 485
v. Minneapolis & St. L.
R. Co. 611
y. Raleigh & GR. Co. 404
v. Riley 287
v. State 175
v. Union R. Co. 226
v. Vanmeter IIO
Leggett v. Ill. Cent. R. Co. 656
Lehigh Co. v. Hoffort 196
Lehman v. Brooklyn City R.

0. ; 334
Lemmon v. Chic. & N. R. Co. 657
Lemoine v. Cook 416
Lenoir v. Mandeville 96
Lentz v. Stroh 146
Leonard v. Fitchburg R. Co. 488

v. Owen 44
v. Whitcomb 489
v. Wilkins 329
Lescallett v. Com. 366
Lessels v. Farnsworth 452
Lettis v. Herning 409
Leuw v. Dudgeon 469, 475
Levy v. N. Y. City 301, 330
Lewis v. Bracken 342
v. Bulkley 164
v. Burlington Ins. Co. 164
v. Davis 44
v. Fermor 540
v. Peake 93
v. Richmond & D. R.
Co. 466
v. Smith 125
v. Springville Bkg. Co. 484
v. Tyler 440
Liddard v. Kain 78
Liddell v. Lofthouse 368
Liddle v. Keokuk, Mt. P. &

M. R. Co. 634, 688
Lightcap v. Phila. Trac. Co. 603
Limburger v. Barker 55
Linck v. Scheffel 386, 404
Lincoln v. Boston 234
Lincoln Rapid Transit Co. v.

Nichols 625
Lindon v. Hooper 312, 310
Lindsley v. Chic., M. & St.

R. Co. a 512
Line v. Mills 426

v. Taylor 306, 405

Lines v. Winnipeg Elec. St.
R. Co. 603

TABLE

‘Lingonner v. Ambler
Linnehan v. Sampson 380,

; 390, 404
Linney vy. State 187
Lipe v. Blackwelder 140
Lippincott v. Lasher 359
Liston v. Cent. Ia. R. Co. 584
Little v. Lathrop 262

v. McGuire 267, 272, 290

v. Madison 237, 238

v. Swafford 302

vy. Woodworth 87
‘Little Rock & Ft. S. R. Co. v.

Dicks 579

y. Finley 265, 586, 608, 639

v. Henson 590, 639

v. Holland 590

v. Jones 6390

vy. Miles 407

v. Odom 466

vy. Smith 636

v. Trotter 587

vy. Turner 590

v. Wilson 641
‘Little Rock & M. R. Co. v.

Chriscoe 591
‘Littledale v. Scaith 24
Littlefield v. Biddeford 423
Littleton v. Richardson 224
Littman, In re 535
Livermore v. Batchelder 129
‘Liverpool New Cattle Market

Co. v. Hudson 354
‘Tlano Cattle Co. v. Faught 54
Lloyd v. Lloyd 574

vy. New York City 240
v. Waterford & L. R. Co. 473
‘Lobee v. Standard Live-Stock

Ins. Co. 160
Loberg v. Amherst 228
Locke v. St. Paul & Pac. R.

Co. 262, 596, 613, 638, 652
Lockridge v. Fesler 447
Lockwood v. Barnes 74

v. State 48
Loesch v. Koehler 143, 166, 542
‘Loeser v. Chic., M. & St. P.

R. Co. 506
Logan v. Gedney 265
Logue v. Link 388
London & East Counties L.

& D. Co. v. Creasey 377
“London & North-Western R.

Co. v. Hughes 517
“London, Brighton & S. C. R.

Co. v. Truman 361
‘Lonergan v. Ill. Cent. R. Co. 595
‘Long v. Cent. Ia. R. Co. 668

OF CASES.

729
PAGE
Long v. Portland 361
v. Southern R. Co, 629
v. State, 43 Tex. 467 186
v. State (Tex. Cr.), 46 S.

W. Rep. 821 185
Long Point Co. v. Anderson,

Re 3
Longyear v. Buck 65
Loomis v. Terry 384
Lorance v. Hillyer 267
Lord v. Saco 243

v. Wormwood — 262, 272, 281
Lord Advocate v. Young 572
Lord Derby, The 382, 416
Lott 1 Bunions & S. Pass.

. Co. 508

v. State 554

Louisville v. Wible 353
Louisville & F. R. Co. v. Mil-

ton 655
Louisville & N. R. Co. v.

Barker 636

v. Belcher 648

v. Bell 467, 508

v. Bolton 356

v. Bowen 589, 642

v. Brinckerhoff 580

v. Cochran 265, 607

v. Cooper 464

v. Dies 489, 490

v. Eves 2

v. Guthrie 660, 697

v. Kelsey 470, 620, 638, 646

v. Kelton 502, 593

v. Lancaster 41

v. Owen 471

v. Posey 586

v. Rice 586

vy. Robinson 20

v. Schmidt 27

vy. Simmons 267, 637, 639

vy. Simpson 356

v. Sowell 470

v. Stone 586, 587

v. Upton 597, 657

v. Wathen SII

v. Williams, 105 Ala. 379 608
v. Williams (Ky.), 45 S.

W. Rep. 229 631

vy. Wynn 505
Louisville & W. R. Co. v.

Hall 578
Louisville, Cine. & L. R. Co.

vy. Hedger 463, 469, 512
Louisville, E. & St. L. R. Co.

v. Hart 625, 055

v. Hill 636

v. Lee 596

730

Louisville, N. A. & C. R.
Co. v. Cahill
vy. Cauble
vy. Consol’d Trunk Line
Co.

. Davis 252, 597, 628,
Etzler 660,
. Francis
Godman
Goodbar
Hixon
Hughes
Johnson
Ousler
Porter
Quade

660, 674,

597. 610,

631, 689,
Schmidt

Spain 693,
Stanger 596,
Steele
Stommel
Summer
White
. Whitesell
Widman
Louisville, N. 0. & T. R. Co.
Bigger

v. "Cte:

y. Phillips

v. Smith

v. Tate
Love v. Ross
Loveland v. Gardner
Low v. Pew
Lowe v. Guard

v. State

v. Woods
Lower Macungie

Merkhoffer

Lowery v. Manhattan R. Co.
Lowndes v. Dickerson
Tey St. Louis & H. R.

Sie orere oh eed Aer oes

590,
98, 99,

Tp. v.

oO.
Lucas v. State, 62 Ala. 26
v. State, 33 Tex. Cr. 290
yv. Trumbull
Lucia v. Meech
Luckie v. Chic.
Co.
Lukens v. Freiund
Lundeen v. Livingston Elec.
Light Co
Lundy v. State
suaice ws v. Great Western
oO.
Lyman v. Gipson
Lynch v. Grayson
v. McNally

& A. R.

388,

TABLE

PAGE

OF CASES.

Lynch v. North. Pac. R. Co.

is 590, 606

v. Nurdin 227

vy. Richardson 392, 448
Lynde v. Parker 110

Lyndsay v. Conn. & P. R. R.

Co. 638
Lynn v. State I4I
Lyons v. Martin 304

v. Merrick 273
v. Stills 98
v. Terre Haute & I. R.
Co. 610:
v. Van Gorder 114
McAdams vy. Sutton AI4
McAlister v. Chic., R. I. & P.

R. Co. 484
McAllester v. Haden 301
McAlpine v. Grand Trunk R.

Co. 656
McAneany v. Jewett 142
McArthur v. Garman 109
McAuley v. Harris 436
McBeath v. Wabash, St. L. &

P. R. Co. 509
McBride v. Com. 178

v. Hicklin 295, 321
v. Lynd :
v. State 363
McCahill v. Kipp 326:

McCall v. Chamberlain 26s,

619, 654, 667, 687
McCambley vy. Staten Island
M.R

Co. 254

McCance v. London &

North-Western R. Co.
470, 472
Mees v. Chic. & N. R. ie
20:

McCann” v. Chic., St. P., M.
& O. R. Co. ae

v. Consold. Trac. Co. 236, 2

McCarn v. Internat. & G. N.
R. Co. 465
McCarthy v. Guild 417
v. Portland 254
McCarty v. Blevins 46.
v. State 168
McCaskill v. Elliott 305°

McCauley v. Mont. Cent. R.
Co. 643
McClain v. Garden Grove 207

McClintock v. Emick 80, 86
McClure v. Sheek’s Heirs 49
McConico v. Singleton 558
McConnell v. Aernam 308
McCook v. Bryan

TABLE OF CASES.

McCool v. Galena & C. U. R.

Co.
McCorkell v. Karhoff
McCormick v. Tate 260,
McCornack v. Sornberger
McCoy v. Cal. Pac. R. Co.
621,
v. Hock
v. K. & D. M. R. Co. 505,
v. So. Pac. R. Co. 626,
660, 668,
McCracken v. Webb
McCrossin v. Davis
McCullough v. Wabash West.
R. Co.
McCune v. B., C. R. & N.
R. Co.
McDaniel v. Chic. & North-
western R. Co.
v. State, 5 Tex. App.
475
v. State, 33 Tex. 419
McDaniels v. Robinson
M’Dermaid v. Edinburgh
Tramway Co.
McDonald v. Bennett
v. Dickenson
v. Jodrey
v. Savoy
vy. Snelling
vy. Toledo Consol. St. R.
Co. 212,
Yarmouth Tp.
McDonnell v. Pittsfield & N.
A. R. Co. 281, 612,
McElroy v. State
McEwan v. Cuthill
McFadden v. Mo. Pac. R. Co.
McFarland v. McGill
v. Newman
v. Swihart
McFarlane v. Hulton
McFie v. Can. Pac. R. Co.
590,
McGarry v. N. Y. & H. R.

Co. 395,
McGhee v. Edwards 109, IT0,
v. Guyn
McGill v. Compton
McGlinchey v. Fidelity & Cas.

120,

=

Co.

McGrath v. Detroit, M. & M.
R. Co.

McGrew v. Forsythe

v. State

McGuire v. Mo. Pac. R. és 69:

Vv. ne & L. C.

PAGE

610
82
271

McGuire v. Ringrose
McHugh v. Mayor
Mcllvaine v. Lantz
MclInaney v. Hildreth
McIntosh v. State
v. Waddell
McIntyre v. Carmichael
v. Lockridge
McJunkin v. Mathers
McKay v. South. Bell Teleph.
& Teleg. Co.
McKeage v. Pope
McKee v. McKee
McKeen v. Converse 313,
McKenzie v. Can. Pac. R. Co.
v. Hancock
v. Lewis
v. State
McKinne v. State
McKinney v. Ohio & M. R.
Co. 634,
McKnight v. Toronto 357,
M’Kone v. Wood
McKowan v. Harmon
McLain v. Huffman
v. Lloyd
McLaughlin v. Kemp
yv. Piatti
McLaurine v. State
McLean v. Rutherford
vy. Warnock
ar v. Grand Trunk R.
0.
McMahan v. State
McMahon v. Field
v. Kelly
McManaway v. Crispen
McManus v. Lancashire & Y.
R. Co. 461,
McMaster v. Montana Un. R.
Co. 586 580,
McMichael v. Grand Trunk
R. Co.

361,

124,

seni vy. Andrews
v. Ma. & N.R. Co. 638,
McNally v. Lancashire & Y.
R. Co.

McNeer v. Boone

McNeill v. Brooks

McPhail v. State

McPheeters v. Hannibal & St.
J. R. Co. 267,

McPherson v. James 260, 303,

McQuaid v. Ross

McQuillen _v. _Crommellin
Iron Ore Co.

McSloy v. Smith

McWillie v. Goudron

205,

473
615

732 TABLE
PAGE
Macauley v. City of New

York 203
Macdonald v. Lye a 412
Mack v. St. Louis, K. on

N. Co. ay

v. South Bound R. Co. 640
Mackenzie v. Cox 424
Mackie v. Cent. R. of Ia. 629, 671
Mackler v. Schuster 307
Macomber v. Nichols 230, 231
Macon v. Dykes 223
Macon & W. R. Co. v. Baber

621, 622

v. Lester 250
Madison v. State 172
Maggi v. Cutts 255, 404
Magilton v. N. Y. Cent. &

H. R. R. Co. 673
Magner vy. Peo. 557, 564
Maher v. Winona & St. P. R.

Co. 654
Mahle v. State 185
Mahler v. Holden 118
Mahon v. Crowe 422
Mahoney v. Dwyer 382
Maier v. Freeman 113

Ex parte 560, 565
Maize v. Bowman 46, 445
Major v. Herndon 44
Mallory v. Griffey 220
Malone v. Knowlton 287
Manchester, S. & L. R. Co. v.

Wallis 664

v. Woodcock 627
Manchester S.J. & A. R. Co.

v. Fullarton 508
Manderschid v. Dubuque 207
Manger v. Shipman 373
Mann v. Weiand 390, 397

v. Williamson 267, 274
Manning v. Mitcherson 3, 38
Mansfield v. Baddeley 390

v. Cole 434
Manwell v. Burlington, C. R.

R. Co. 648, 673, 606
Manzoni v. Douglas 328
eke v. Ross 384, 380, 300

Worcester 214
ie Vanatta 386, 301
Marfell v. South Wales R.

Co. 672
Margetson v. Wright 77
Marietta & Cine. R. Co. v.

Stephenson 262, 263,

295, 617, 619, 620, 667
Marion St. R. Co. v. Carr 603
Markham v. Gr. West. R. Co. 623
Marsel v. Bowman 405

OF CASES.

Marsh v. Hand
v. Jones
v. Means
v. New York & E. R. Co.
vy. Webber
Marshall v. Bingle
v. Blackshire
v. State
v. Yoos
Marsland v. Murray
Martin v. Blodget
. Cent. Ia. R. Co.
. Cuthbertson
. Elliott
Foltz
Reed
State
Towle
Wann v. Balt. & O. R. Co.
491,
376,

129,

asa2885

Mason vy. Keeling
v. Mo. Pac. R. Co.
v. Morgan 290, 374,

v. Thompson
Mason Stable Co. v. Lewis
Mass. S. P. C. A. v. Boston
Massey v. State
Matson v. Baird

Matteson v. Strong
Matthews v. Fiestel

vy. Parker

v. St. Paul & S.C. R. Co.

v. Schmidt

v. State
Mattison v. Turner
Mattoon v. Rice
Mauney v. Ingram
Maus v. Broderick
Maxwell v. Clarke

v. Cooke

v. Houston

v. Palmerton
May v. Burdett

vy. Chic. & N. R. Co.
Mayberry v. Concord R. Co.
Mayes v. State
Mayfield v. St. Louis, & S. F.

R. Co. 641, 658, 690,

v. Spiva
Mayhew v. Wardley
Manuand y v. Boston & Me. R.

612,
v. Buck
v. Maynard
v. Norfolk & W. R. Co.
Mayor of Colchester v.
Brooke
Mayor v. Meigs

128,

81,

TABLE

Mead BS Burlington & L. R.
oO.
Meade v. Watson
Mears v. Chic. & N. R. Co.
Meegan v. McKay _ 288, 206,
Meeker v. North. Pac. R. Co.
Meibus v. Dodge 2
Meier v. Shrunk

Meisch v. Rochester Elec? R
Co. 591,
Mella v. Baston 335;
Melody y. Reaip
Melsheimer v. Sullivan
Memphis v. C. R. Co. v.
Blakeney
vy. Lyon 593,
v. Scott
v. Smith
Memphis & L. R. Co. v.
Carlley 648,
v. Kerr
Mendell v. Chic. & N. R.
Co.
Meneley v. Carson 145,
Meracle v. Down
Merch. & Mech’s. Sav. Bk.
y. Fraze
Meredith v. Reed
Merrick v. Work
Merrill v. Claremont
v. Hampden
Merrils v. Goodwin
Merritt v. Claghorn
y. Hill 265,
v. O’Neil
v. Peo.
Metcalf v. Hess
Metropolitan Sav. Bk. v.
Manion

Meuly v. Corkill

Meunier dit Legacé v. Card-
inal

Mexican C. R. Co. v. Lauri-

cella
Mexican Nat. R. Co. v.
Savage
Meyer v. a elantie & P.R.
Co.
v. Berlandi
v. Cook
v. Jones

v. Krauter
Meyers on Webel St. L. &
P. oO.

105,

rk v. Seats
Mich. South. & N. I. R. Co.
yv. Fisher

v. McDonough 463,

PAGE

621
274
673
391
584
417
, 390

625
338

261
503

OF CASES.

ee vy. Flanagan
Stone
Kildiead R. Co. v. Daykin
v. Freeman
Milburn v. Hannibal & St. J.
R. Co.

v. eee City, St. J. Par}

6:
Miles v. Hanctbal & St. J.
R. Co.

Millcreek Tp. v.. Brighton
Stockyards Co.
Millen v. Fandrye
Miller v. Boone Co.
. Bourbonniére
Crabbe
Horton
. Kimbray

aw

McDonald

Marston

Northern Pac. R. Co.
. Rochester Vulc. Pav.

121,

asa<<8455

oO.
vy. Smith
U.S.
v. Wabash R. Co.
Webster City
Milligan v. Wedge

vy. Wehinger 264,
Millon v. Salisbury
Mills v. Farmers’ Ins. Co.
160,
v. N. ¥. & H. R. Co.
vy. Stark

Mills & Le Clair Lumber Co.
v. Chic., St. P., M. &
O. R. Co.

Milman v. Shockley

Milne v. Nimmo

Milwaukee v. Davis 240,

Miner v. Conn. Riv. R.

Co.
Minneapolis & St. L. R. Co.
v. Beckwith
v. Emmons 661, 695,
Minter v. State
Misner v. Knapp

Miss. Cent. R. bo. v. Miller
590,
Mo., K. & T. R. Co. v.
Belcher
v. Byrne 469,
v. Carter 478,
vy. Chittim
v. Cook
v. Darlington
v. Haber 345,

734 TABLE OF CASES.

PAGE PAGE
Mo. kK. & T. R. Co. v. Mobile & G. R. Co. v. Cald-
Jones 598 _ well 589, 590, 597
v. Magee 506 Mobile & O. R. Co. v. Bogle 468
Receivers v. Olive 503 v. Francis 497
y. Russell 618 vy. Gunn 588
y. Traub 598 v. Hudson 267, 638
v. Woods 481, 514 v. Malone 590, 630
Mo. Pac. R. Co. v. Abney 630 v. Moore 668
vy. Baxter 656 v. Thompson 670
vy. Bradshaw 611, 604 yv. Williams 265
y. Childers 510 Moeschke v. State 83
y. Clark 5098 Moffat v. Gt. West. R. Co. 479
vy. Cornwall 460 Molair v. Port Royal & A. R.
v. Cox 680 Co. 590, 591, 593, 622
v. Earle 641 Moling v. Barnard 633
v. Eckel 584, 669 Molk v. Daviess County
vy. Edwards 482, 516, 521 Agricul., etc., Assn. 370
v. Fagan 506, 507 Molton v. Cheeseley 14
y. Finley 343 v. State 173
v. Gedney 588, 580 Mondego, The 491
vy. Gill 508, 630, 657 Money v. Fisher 86
v. Hackett 671 Monroe v. Lattin 449
v. Hall 514 Montgomery v. Breed 295
v. Harrelson 653 v. Handy 273
vy. Harris 461, 498, 508 v. Koester 402
v. Heath 506 v. State 186
v. Hill 606 Montgomery & E. R. Co. v.
vy. Humes 606 Perryman 638
v. Ivy 487 Monypenny v. Sells 109
v. Kingsbury 486 Moody v. Minneapolis & St.
v. Kocher 668 L. R. Co. 624
v. Leggett 660 Mooers v. Larry 425
y. Lynch 679 v. North. Pac. R. Co. 586
v. Manson 677 Moore v. Abbot 195
v. Morrow 676 v. Cass 419
y. Paine 509, 510, 519, 520 v. Emerson 98
v. Pfrang 650, 668 v. Great Northern R. Co. 506
v. Roads 611, 619, 667 v. Kan. City & I. R. T.
v. Scott 512 R. Co. 627, 629
v. Shumaker 206 v. Robbins 316
v. Stevens 5905 v. State 117, I7I
v. Tex. & Pac. R. Co. v. White 276
; 497, 506 Moreland v. Mitchell Co. 240
y. Tietken 467 More’s Est., In re 45
% Vandeventer 641 Morewood v. Wakefield T4I
Wilson 590, 611, 612 Morey v. Brown 142
Mitchell v. Carolina Cent. R. Morgan. v. Abergavenny
Co. 513 (Earl) : 40
v. Chase 405 v. Beaumont 361
vy. Georgia R. Co. 475 v. Cent. R. Co. 600
v. Williams 65 v. Hudnell 287, 290
_ vy. Wolf 264 v. Jackson 571
Mitchil v. Alestree 336 v. Miller 71
Mitford v. Reynolds 543 v. Norfolk S. R. Co. 600
Mittelstadt v. Morrison 234 v. State 186
Mizell v. State 187 Moriarty v. Cent. Ia. R. Co.
Mobile & B. R. Co. v. Kim- 619, 677

brough 587 Morley v. Greenhalgh 530

TABLE
PAGE
Morrill v. Jones 56
Morris v. Armit 424, 428
v. Cohn 289
v. Del., L. & W. R. Co. gor
v. Dimes 571
vy. Fraker 265, 266
vy. Nugent 131, 144, 147
v. Phelps 253
y. St. Louis, K. C. & N.

R. Co, 632
Morrison v. Bennett 369
vy. Burlington, C. R. & N.

R. Co. 645, 659
v. Cornelius 148
Vv. aL City, St. J. & C.
B. Co. 672, 675
y. M’ re 327
v. Mitchell 284
v. Shelby Co. 249
v. State 168
Morrow v. Hannibal & St. J.
R. Co. 579
v. Sweeney 158
Morse v. Boston & L. R. Co.
356, 667
y. Glover 141
y. Nixon 133, 144
y. Patterson 43
v. Pitman 96
v. Reed 316
vy. Richmond 215, 227
vy, Rutland & B. R. Co. 667
Morsman vy. Rockland 203
Morton v. Gloster 432
Moser v. St. Paul & D. R.
Co. 613, 685
Moses v. Fost Townsend S.
482
v. So. eee R. Co. 263,
617, 683
v. State 354
Mosher v. Jewett 302, 311
Moshier v. La Crosse County
Agricul. Soc. 371
v. Utica & S. R. Co. 598,
600, 605
Mosier v. Beale 287
Moss v. Augusta 143
v. Burlington 207
v. Pardridge 418
Moulton y. Aldrich 324
v. Moore 284
v. St. Paul, M. & M. R.
Co. 470
v. Sanford 195
Mount Vernon v. Hoehn 208
Mowers v. Fethers 455
Mowery v. Salisbury 66

OF CASES.
Moye & Wrightsville & T. R.
0.

Moynahan yv. Wheeler

Mueller v. Ross Tp.

Mulherrin v. Henry

Mullaly v. Peo.

Mullen v. Glens Falls 222,
v. Wester Union Beet

een v. McKesson 388,

Mullett v. Bradley ae

v. Mason
Mulliner v. Florence
Munch v. N. Y. Cent. R. Co.
Muncie St. R. Co. v. Maynard
Munger v. Tonawanda R. Co.
Munn v. Reed
Munson v. Porter
Murdock v. Warwick 193,
Murgoo v. Cogswell 1106,
Murley v. Grove
Bier phy v. Grand Trunk R.

fe)

v. Kaufman
v. McGraw 86, 99, 100,
v. Manning 520, 5
v. Mich. Cent. R. Co.
v. Preston 301,
Murray v. Brown
v. Guse
v. So. Car. R. Co. 264,
617,
v. U.S
v. Young
Murry v. Meredith
Musquez v. State
Mutchler, In re
Myers v. Baltimore
Commrs.
v. Dodd
v. State
Mynard v. co B. & N.
Y. Co.

Co.

Myrick v. Mich. Cent. R. Co.

Nafe v. Leiter

Nance v. Barber

Nashua Iron & Steel Co. v.
Worcester & N. R. Co

628,
Nashville & Chat. R. Co. v.
Thomas
Nashville, C. & St. L. R. Co.
v. Heggie
v. Hembree 577, 589, 590,
vy. Hughes
v. Sadler
v. Spence

736 TABLE

PAGE

Nat. Bk. of Commerce v.
Morris 104

National Fertilizer Co. v.
Lambert 353

National Horse Importing
Co. v. Novak 99
Nauman v. Ullman 77, 96
Neal. v. Wilcox 450
Neale v. Croker 458
Needham vy. Dial 83

v. San Fran. & S. J. R.
Co. 608
Neel v. State 420
Nehr v. State 293
Nelson v. Beck 446

v. Chic. M. & St. P. R.
Co. 654

vy. Great North. R. Co.
620, 677

v. St. Louis & S. F. R.
Co. 696

Neversorry v. Duluth, S.S. &
A. R. Co. 653, 662

Nevin v. ee Southern &
470 . 4890

New Albany & 'S. R. Co. v.
McNamara 655, 695
v. Maiden 53, 662
v. Pace 677

New Brunswick R. Co. v.
Vanwart 600, 627
New Market Co. v. Embry 439
New Orleans v. Lozes 84

New Orleans & N. E. R. Co.
v. Bourgeois 5890, 639
v. Burkett 590
v. Thornton 577, 584

New Orleans, J. & G. N. R.
Co. v. Field 613

New York & E. R. Co. v.
Skinner, 617, 652

New York Cent. R. ae V.
Lockwood 407, 469

New York, C. & St. L. R. Co.
% Auer 632

v. Zumbaugh 653,
New York Game Assn. v. in
Durham 564

New York, L. E. & W. R.
Co. v. Estill 507, 516

New York, T. & M. R. Co. v.
Sutherland 633

Newark & S. O. H.C. R.
Co. v. Hunt 351

Newby v. Chic, R. I. & P.R.
Co, 486
Newell v. Clapp 341

Newhouse v. Hatch

OF CASES.
PAGE
Newkirk v. Milk 347
Newlin Tp. v. Davis 197
Newman v. Pa. R. Co. 493.
vy. Vicksburg & M. R.

Co. 5
Newport News & M. V. R.

Co. v. Mercer 502, 519

Vo (Wis: 487

Newton v. Ferrill 259

v. Gordon 400

v. Joyce 358

v. Pope 420

Nichols v. Athens 235

v. Balch 420

Nicholls v. Hall 340
Nicholson v. Atchison, T. &

SE, Co. 673

v. Temple 46

Nicolls vy. Duncan 442
Niemann v. Mich. Cent. R.

oO. 612
Nierenberg v. Wood 286, 413
Nightengale v. State 168
Nixon v. Grand Trunk R. Co. 680
Noble v. Chase 275

vy. St. Joseph & B. H. St.

R. Co. 333
Noblesville Gas & Imp. Co. v.

Teter 252
Noel v. Duchesneau 388
Nolan v. N. Y., N. H. & H.
R. Ca. 33
v. San Antonio Ranch
Co. 54
Noles v. Marable 42
Nolin v. Franklin 359
Nolon v. Chic. & A. R. Co. 614
Norfolk & W. R. Co. v. Har-
man 479
v. Johnson 654
v. McGavock 657
v. Sutherland 484
Norris v. Kohler 330
v. Litchfield 204
v. Parker 78
v. Warner 398, 402
North v. McDonald 307
v. Smith 412
North Amer. Comml. Co. v.
UL S. 28
North Chic. St. R. Co. v.
Harms 602
v. Hudson 643

North Manchester Tri-County

Agric. Assn. v. Wilcox

120,

North Manheim Tp. v. Arn-
old

TABLE OF CASES.

North Mo. R. Co. v. Akers
North Pa. R. Co. v. Com.
Nat. Bk.
v. Rehman 617,
North Side St. R. Co. v.
Tippens
Northcot v. State
Northcott v. Smith
Northern Central R. Co. v.

Ward 612,
Northern Pac. R. Co. v. Cun-
ningham

v. Sullivan
Northwestern Bank v. Free-
man 103,
Norton v. Ladd
v. Rockey
Nowel v. Smith
Noyes v. Colby
Nuckolls v. Gaut
Nugent v. Smith

303,

504,

Oakes v. Spaulding

Obert v. Barrow

O’Brien v. Bound

v. Miller

Ochiltree v. Chic. & N. R.
Co.

O’Connell v. Jarvis

Odell v. Atlanta

O’Donnell v. Pollock

Oeflein v. Zautcke

O’Grady v. N. Y. Mut. Live-
Stock Ins. Co.

Ogston v. Aberdeen District
Tramways Co.

O’Hara v. Miller

Ohio & M. R. Co. v. Atte-

berry
v. Brown
v. Brubaker 528,
v. Cole
vy. Craycrait 505,
v. Eaves
v. Fitch
v. Hays
v. Jones 620,
v. McClure
v. Simon
v. Stribling 588,
v. Tabor 470, 488, 491,
v. Wrape 641, 642,
Ohio, I. & W. R. Co. v.
Heady
Oil v. Rowley 290, 303,

O’Keefe v. Talbot

O’Leary, Ex parte

Olmsted v. Rich
47

PAGE

518
484

620

603

552
302

737
PAGE
Olson v. Chic, M. & St. P.
R. Co. 626
v. Chippewa Falls 201,
202, 203
v. Luck 200
Omaha & R. V. R. Co. v.
Brady 600
v. Clarke 508, 500
v. Crow 407
v. Wright 586, 635.
Omaha St. R. Co. v. Duvall 603
O’Mally v. McGinn 315

Omberg v. U. S. Mut. Assn. 334

O’Neil v. East Windsor 257
v. Quebec 228
v. Windham 228

Onslow v. Eames

Opelousas Bd. of Aldermen

v. Norman 357
Orange, A. & M. R. Co. v.

Miles 638
Oranmore, The 493.
Orchard v. Rackstraw 450.

Orcutt v. Pac. Coast R. Co.
595, 608, 625, 630
Oregon R. & Nav. Co. v.

Dacres 687

v. Smalley 650, 653.

Organ v. State 558

O’Riley v. Diss 270
Ormsby v. Un. Pac. R. Co.

508, 520

Orne v. Roberts 400:
O’Rorke v. Gt. West. R. Co.

471, 478

O’Rourke v. Monroe 218

Orser v. Storms 45
Ortt v. Minneapolis & St. L.

R. Co. 465
Osbond v. Meadows 574
Osborn v. Jenkinson 330°
Osborne v. Chocqueel 308:

vy. Kimball 206»
Osgood v. Green 321
Osincup v. Nichols 400
Ouverson v. Grafton 232, 247
Oviatt v. State 551
Owen v. De Winton 245,

vy. Louisv. & N. R. Co.
481, 508, 510°

v. State 177
Owens v. State 17s
Oxford Lake Line v. Stead-

ham 600
Oxley v. St. Louis, K. C. &

N. R. Co. 468°

v. Watts 116
Oxsheer v. Watt 103;

738 TABLE
PAGE
Ozburn v. Adams 274, 284, 286
Pace v. Potter 268, 273
Pacific Exp. Co. v. Lothrop
515, 516
Pacific R. Co. v. Brown 620
Packard v. Slack 342
Paddock v. Mo. Pac. R. Co. 489
Paff v. Slack 415
Page v. Great Eastern R. Co. 693
v. No. Car. R. Co. 579
v. Olcott 272
vy. Sumpter 257
Paget v. Birkbeck 572, 573
Painter v. Baker 415
Palmer v. Andover 193, 194,
199, 200, 250
vy. Grand Junc. R. Co. 461
v. North. Pac. R. Co. 586, 587
v. Silverthorn 140
v. Spaulding 316
v. State 306
Paramore v. Western R. Co.
466, 483
Pardington v. South Wales R.

Co. 472
Paris v. Hale 295
Park v. Adams Co. 240

v. O’Brien 323
Parke Co. Commrs. v. Sap-

penfield 208, 212

Parker v. Chase 103
vy. Evans 117
v. Jones 204, 297 315
v. Lake Shore & M.S. R

Co. 610, 620, 655
v. Marquis 437
v. Mise 58, 146, 164
v. Mosher 363

v. Rensselaer & S. R. Co.
676, 687
v. State 182
v. Thompson 284
v. Union Woolen Co. 233
Parks v. Kerstetter 303
Parrin v. Mont. Cent. R. Co. 649
Parrott v. Hartsfield 128, 131
Parsons v. Gingell 8
Partenheimer v. Van Order 417
Partlow v. Haggarty 304
Patee v. Adams 345, 349

aaa t Oreg. Short-Line R.
2

Patten v. Chic, M. & St. P.

R. Co. 656
Patterson v. Austin 227

v. Devlin 45
v. McVay 115

OF CASES.

PAGE

Patterson v. South & North
Ala. R. Co. 242, 255
Patteshall v. Tranter 96
Patton v. State 549

v. West End N. G. R.
Co. 614
Paul v. Hardwick 77, 94
yv. Summerhayes 573

Pavitt v. Leh. Val. R. Co. 493,
501, 511

Payne v. Kan. City, St. J. &
C. B. R. Co. 672
v. Troy & B. R. Co. 642
Peak v. Frost 76
Pearce v. Sheppard 436
Pearce’s Case 552
Pearl v. Macaulay 326, 330

Pearson v. Chic., & K.C.
Co. S63; 676, Be 692
v. Milwaukee & St. P.

Co. 619

v. Zehr » 351

Peddicord v. Mo. Pac. R. a 666

Pedigo v. Com. 63

Peer v. Ryan 444
Penn v. Buffalo & E. R. Co.

483, 505

Pennsylvania Co. v. Clark 501

v. Greso 407

v. Lindley 676, 605

v. Spaulding 670, 674, 676
Pennsylvania R. Co. v. Hen-

derson 467

v. Raiordon 469, 512

v. Riblet 652, 661

Penton v. Murduck 348

Peo. v. Bd. of Police 145

v. Bolanger 48

v. Borda 356

v. Brunell 526

v. Butler 180

v. Caldwell 5I, 53

v. Campbell 60

v. Davy 533

v. Levine 2 a

v. Fallon 363, 364

v. Fishbough 568

v. Gillespie 141

v. Gillis 172

v. Hall 187

v. Kaatz 171

v. Klock 528

v. Knatt 555

v. Maloney 61, 62

v. Monteith 180

v. Murphy 173

v. Olsen 553

v. O'Neil 565

TABLE OF CASES.

Peo. v. Pico
v. Robbins
. Roberts
Ross
. Rouse
. Sensabaugh
. Shippee
. Smith, 112 Cal. 333
. Smith, 5 Cow. (N.
Y.) 258
v. Soto
v. Spec. Sessions
v. Stanford
v. Swasey
v. Tighe 60,
v
Vv
Vv
v

530,

a<<44<44

. Tinsdale
. Truckee Lumber Co.
. Van De Carr

v.
Peo., Ricks Water Co. v. Elk
River M. & L. Co.

Peoria v. Walker
Peoria & R. I. R. Co. v. Mc-
Clenahan
Peoria, D. & E. R. Co. v.
Babbs 659,
v. Duggan
v. Miller
Peoria, P. & J. R. Co. v.
Barton
v. Champ
v. McIntire
Perdue v. Harwell 77
Perkins v. Boardman
v. Fayette
v. Mossman
v. St. Louis, I. M. & S.

589,

R. Co. 641,
Perry v. Dubuque S. R. Co.
ey
v. Phipps
Persinger v. Wabash, St. -
& P. R. Co.

Peters v. New Orleans, J. &
G. N. R. Co.
v. Stewart
Petersburg v. Whitnack

Petersburg R. Co. v. Hite
Ee Chic. & W. M.

v. Miss. Vall. Ins. Co.
v. North. Pac. R. Co.
Peterson, Ex parte
Pettigrew v. State
Pettit v. May
v. N. Y. Cent. & H. R.
R. Co.

Petzenka v. Dallimore 109
Peyton v. Chic. R.I. & P. R.

Co. 683
Pfaffinger v. Gilman 338
Phelon v. Stiles 237
Phelps v. Cousins 275

v. Paris 427

v. Racey 564
Philadelphia & R. R. Co. v.

Ervin 682
Phila. Trac. Co. v. Bern-

heimer 603

v. Lightcap 603
Phila. W. & B. R. Co. v.

Lehman 519

v. Stinger 0, 627

Phillips v. Can. Pac. R. on 627

v. Covell 270

v. De Wald 325

v. Denver 358, 359

v. Evans 65
v. N. Y. Cent. & H. R.

R. Co. 600

v. Nicoll 339

v. People’s Pass. R. Co. 589
Philpot v. Bugler 574

Pheenix Ins. Co. v. Grimes 162
v. Public Park Amuse-

ment Co. 162
Phythian v. Baxendale 327
Pickard v. Howe 316, 318, 339
Pickens v. Diecker 326
Pickering v. Orange 391, 307
Pickett v. McCord 109
Pierce v. Andrews 684

v. Conners 325
v. Eddy 53
v. Hosmer 276
v. Josselyn 319
Pierret v. Moller 384
Pierson v. Post 5,6, 8
Pigott v. Lilly 234
Pike v. Eddy 340
Pilon v. Shedden Co. 386
Pim v. Griffith 185
Pinnell vy. St. Louis, A. & T.

R. Co. 270
Pinney v. Andrus 76
Piollet v. Simmers 236
Pitcher v. Lake Shore & M.

S. R. Co. 407
Pitre v. Offutt 505
Pitts v. Millar 530
Pittsburgh & L. E. R. Co.

v. Cunnington 670
Pittsburgh, C. & St. L. R.

Co. v. Allen 662, 667

v. Bolner 688

740

PAGE
Pittsburgh, C. & St. L. R. Co.
v. Bowyer 682
v. Eby 675, 677
v. Hannon 633
v. Heiskell 638
v. Hollowell 503
v. Howard 620, 656
v. Kain 634
v. McMillan 638
v. Smith 658, 659, 661
vy. Stuart 577, 693
Troxell 581
Blusbureh, c.,C. & St. L. R.
Co. v. Kelly 648
v. Racer 494, 499
vy. Thompson 688
Pittsburgh, Ft. W. & C. R.
Co. v. Methven 617
Pittsburgh Southern R. Co. v. _
Taylor 231, 606, 627
Pittston v. Hart 197
Pitzner v. Shinnick 122
Plumley v. Birge 386
Plummer v. Ricker 403, 405
Plymouth Tp. v. Graver 197, 198
Poage v. State 48
Pochin v. Smith 573
Poindexter v. Blackburn 44
Polak v. Hudson 155
Polk v. Lane 275
Pollock v. Eastern R. Co. 599
Pomeranian, The 163
Pontiac Pac. Junc. R. Co. v.
Brady 592, 619, 680
Ponting v. Noakes 148
Pope v. Cordell 188
Poppen v. Holmes 309
Popplewell v. Pierce 304
Porritt v. Baker 563
Port Royal & W. C. R. Co.

v. Phinizy 589
Hn v. Day 364
.N. Y. L. EL. & W.R.

"Ce. 407
Porterfield v. Iumphreys 492, 512
Portland v. Meyer 354
Potter v. Natural Gas Co. 220,

230, 255
v. N. Y. Cent. & H. R.

R. Co. 686
Potter & Parlin Co. v. N. Y.

Cent. & H. R. R.

, 616
Potts v. Nepal St. L. & 2

R, 469, 476

Powell v. “Chittick 88
v. Kempton Park Race-
course Co. 368

TABLE OF CASES.

PAGE
Powell v. ite 533
v. Pa. R. Co. 476
v. Salisbury 152
Power v. Kennedy 28
Powers v. Botts 444
v. Hubbell 449
v. Kindt 288
Powhatan, The 482
Prairie Cattle Co. v. William-
son 52
Prather v. Reeve 275
Pratt v. obits R.1.& P.R.
597

v. Oxdensburg & L. C.
Co. 486, 489

Pratt Thal & Iron Co. v.

Davis 578
Prentice v. Taylor 438
Presby v. Grand Trunk R.

oO. 508, 602
Prescott v. Connell 248
v. Knowles 415
Presnall v. Raley 156, 206
Pressey v. Wirth 399
Price v. Barnard 660, 687
v. Cataraqui Bridge Co. 213
v. N. J. R. & T. Co. 615, 630
Prickett v. Atchison, T. & S.

F. R. Co. 611
Proctor v. Irvin IgI
vy. Wilmingion & W. R

Co. 593
Protheroe v. Mathews 128, 129
Prudhomme v. Vincent 385
Pruitt v. Ellington 274

v. Hannibal & St. J. R.

Co. 499
Pryor v. St. Louis, K. C. &

N. R. Co. 592
Pucket v. St. Louis, I. M. &

S. R. Co. 631
Pudney v. Eccles 561
Pueblo Co. Commrs. v. Wil-

son 34
Puffer v. Orange UT
Purday v. Johnson 542
Purnell v. Miner 424
Puterbaugh v. Reasor 433
Putnam v. Glidden 75

v. N. Y. Cent. & H. R.
R. Co. 206
v. Payne 58, 144, 145
v. Wyley 45, 421
Pyeatt v. Powell 105
Quarman v. Barnett 420
Quebec v. Picard 328

Queensmore, The

TABLE OF CASES.

PAGE
Quigley v. Pudsey 131
Quilty v. Battie 409
Quimby v. Woodbury 386
Quinlan v, Sixth Ave. R. Co. 330
Quinn v. Peo. 176
Rabbermann v. Pierce 650
Race v. Hansen 435
v. Snyder 274
Racey, In re 527
Radcliffe v. St. Louis, I. M.
& S. R. Co. 690
Radway v. Briggs 242
Rafferty, In re 117

Raiford v. Miss. Cent. R. Co. 613
ge v. St. John City R.

; oO. 332, 333
Rainwater-Boogher Hat Co.

y. O’Neal 73
Ramsden v. Lancashire & Y.

R. Co. 248
Ranck v. Howard - Sansom

Co. 102
Randall v. Richmond & D.

R. Co. 640
Ranger’s Case, 547
Rankin v. Bell 49, 73
Ranney v. Chic, B. & Q. R.

Co. 673
Ransberger v. Ing 88
Ransom v. Chic., St. P., M. &

O. R. Co. 506

v. Getty 434
Ranson v. Kitner 120

Rapier v. London Tramways

Co. 3
Raridan v. Cent. Ia. R. Co. 696

Ravenscraft v. Mo. Pac. R.
Co. 506
Ray v. Davison 117
vy. Manchester 225
v. Tubbs 430
Rayl v. Kreilich 435
Raymond v. Hodgson 390
Read v. Edwards 277

Reck v. Hatboro Mut. Live

Stock & P. Ins. Co. 161
Reddick v. Newburn 284
Reed ee: W. & O. R.

oO. 520

vy. South. Expr. Co. 3901

v. State 186

Reedy v. State 536
Reeves v. Delaware, L. & W.

R. Co. 624
Regan v. Adams Exp. Co. 480
Reg. v. Aldridge 179

v. Brooks 169

Reg. v. Brown 368
v. Bullock 552
v. Carter 168
v. Cheafor 20, 21
v. Cole 168
v. Cory 23
v. Cox 16, 179
v. Crandall 204
v. Edwards 43
v. Fownes 534
v. Gallears 5, 16, 179, 184
v. Garnham 23
v. Giles 306
v. Haigh 169
v. Head 23
v. Henson 340
v. Hey 170
v. Hobbs 368
yv. Humphrey 368
v. Jackson 170
v. Jeans 550, 551
v. Leigh 3608
v. Leppard 437
v. McCulley 182
vy. M’Donagh 539
v. McIntosh 341
v. Matthews 169
v. Muirhead 561
v. O’Donnell 170
v. Osborne 366
v. Parker 526
v. Perrin 400
v. Petch 14
v. Pratt 574
v. Prestney 278
v. Price 570
v. Read 13
v. Revu Pothadu 30
v. Riley 168
v. Robinson 9, 59
v. Roe II, 183
vy. Rymer 459
v. Shickle 23
v. Slade 61
v. Smith 551
v. Spicer 182
v. Strange 183
v. Sutton 175
v. Tivey 553
v. Townley 12,713
v. Tweedy 169
v. Wallace 547
v. Welch 549
v. Wood 570

Rehler v. W. N. Y. & P. R.

oO. 156

Reiche v. Smythe 56

Reid v. State

742 TABLE

PAGE

Reilly v. Gray 363

v. McIllmurray 442
Reis v. Stratton 135
Remele v. Donahue 286, 414
Renner v. Canfield 126
Rennie v. Frame 439

Renton vy. Wilson
Renwick v. Von Rot-

berg ; 395, 409
Respublica v. Teischer 547
Rex v. Brooks 21

v. Chalkley 182
v. Chapple 528
v. Clay 175
v. Cook 182
v. Corrodice 29
v. Cowell 182
v. Crump 168
v. Edwards 183
v. Haughton 548
v. Haywood 551
v. Howel 362
v. Huggins 414
v. Hughes 551
v. McNamee 170
v. Mann 39
v. Martin 43
v. Mogg 554
v. Mott 528
v. Moyle 528
v. Owens 551
v. Paty 528
v. Pear 168
v. Phillips 168
v. Puckering 183
v. Pywell 80
v. Rawlins 174
v. Rough 10
v. Searing

36
v. Smith, 1 M. C. C. 473 168
v. Smith, Ry. & Moo.

205 176

v. Tunnard ; 168

v. Welland 179

v. Whitney 528

v. Williams 175

v. Woodward 177
Rexroth v. Coon 8, 18
Reynolds v. Case 109
v. Hussey 307

v. Moore 569

v. Phillips 131

Rheiner v. Chic., St. P., M. &
O. R. Co.
Arete v. Louisv. & N. R.

1 oO. 476
Rhutasel v. Stephens 102
Rhyno v. Madison Co. 51

OF CASES.

PAGE

Rice v. Kan. Pac. R. Co. 469, 510

v. Nagle 275
v. Underwood 118
v. Whitby 228
Rich v. Woolley 302
Richards v. Enfield 242
v. Symons 450
Richardson v. Brown
v. Carr 139
v. Chic. & A. R. Co. 470, 511
vy. Chic & N. R. Co. 673, 674
vy. Duncan 188
v. Halstead 307
v. Maitland 571
v. Milburn 272
v. N. E. R. Co. 461, 493
v. Northrup 308

Richmond sf Sacramento Val.

Richmond “e D. R. Co. v.

Buice 590
v. Burnsed 407
v. Chandler 645
v. Trousdale 498

Richmond Hill Steamship Co.
v. Trinity House Corpn. 522
Richter v. Cicero & P. St. R.

Co.
Ricketts v. East & West

India Docks Co. 663
Riddle v. Hudgins 104
v. Webb 86, 93
Rider v. White 300
Riest v. Goshen 249

Riley v. Chic., M. & St. P. R.
Co. 6

Rinear v. Gd. Rapids & I. R.
Co 6

Ring v. Cohoes 200
Rio Grande Western R. Co.

v. Vaughn 650
Binge v. Chic., M. & St. P.

R. Co. 6
Ritger v. Milwaukee 200
Ritter v. Ewing 416
River Rendering Co. v. Behr 353
Rivers v. Augusta 300
Roberds v. Mobile & O. R.

Co. 613, 639
Roberts v. Applegate 88

v. Barnes 114
v. Great Western h.

Co. 482, 683
v. Jenkins QI
v. tale 113
v. Ogle 299, 3
v. Richmond & D. dig

Co. 616, 645

TABLE OF CASES.

Robertson v. Atlantic & P.R.

oO. 684,
Gd. Trunk R. Co.
Halifax Coal Co.

Old Colony R. Co.
State

Wooley

Robin v. Briére

Robinson v. Chic., R. I. & P.
R. Co.

v. Flint & P. M. R. Co.
297, 585, 580, 594,
Great West. R. Co.
Kaplan
Longley
Marino
Simpson
Smith
Ex parte
Roblee v. Indian Lake
Roby v. Reed
Rock Island y. Carlin
Rock Island & P. R. Co. v.
Potter
Rockford v. Tripp
Rockford, R. I. & St. L. R.
Co. v. Irish 609, 628,
Lewis
Linn
Lynch
Phillips
Rafferty 577,
Rockwell v. Nearing
Roderick v. B. & O. R. Co.
Rodgers v. Balt. & O. S. R.
Co.
Roe v. Lucknow
Roehers v. Remhoff
Rogers v. Duhart
v. Georgia R. Co.
v. Highland
v. Hull
v. Newburyport R. Co.
v. Rogers
Raereey v. Barbour Co.

Rome, St. R. Co. v. McGinnis
Rompillon v. Abbott

Ronan v. Midland R. Co.
Rood v. McCargar

Rooney, In re

Root v. N. Y. & N. EL R.

SSO SSCS

aadss4

s2888

Co.
Rooth v. North-Eastern R.
Co. 473,
v. Wilson
Rose v. Hardie 312,
Rosedale v. Golding

PAGE

686
470

743

PAGE

Rosema v. Porter 444
Ross yv. Green ‘4 305

v. Ionia Tp. 218
Rossell v. Cotton 285

Rossignoll v. Northeastern R.

Co. 676
Rosted v. Great Northern R.

Co. 467
Roswell v. Leslie 416
Rotch v. Hawes 430
Roth v. State 565
Rothwell v. Milner 341
Rounds v. Stetson 316

v. Stratford a

Rouse v. Osborne
Roux v. Grand Trunk R. Co. oy

Rowe v. Bird 286, 414
Rowell v. Lowell 193
Ruckman v. Pitcher 3604
Rudi v. Lang 205
Ruggles v. Fay 422, 429
Rumsey v. Nelson 325
Rund v. Fowler 354
Runyan v. Patterson 267
Rushville v. Adams 223, 237
Russell v. Cone 291

v. Fagan 453

v. Tomlinson 414
Rust v. Low 272
Ruter v. Foy 302
Rutter v. Henry 205

Ryan v. Chic. & N. R. Co. 629
v. Great S. & W. R. Co. 657
v. North. Pac. R. Co. 669
v. Pa. R. Co.
v. Rochester & S. R. Co.

Saffer v. Westchester Elec. R.
C

oO. 587
Sager v. Portsm., S. & P. &
E. R. Co. 469
Sahr v. Scholle 542
Saint v. Smith 450
St. Clair Mineral Springs Co.
v. St. Clair 210
. John & M. R. Co. v.
Montgomery 664
St. Louis v. Stern 350
St. Louis, Alton & T. H. R.
Co. v. Linder 577,
631, 655
v. Russell 5890
v. Todd 662
St. Louis & San Francisco R.
Co. v. Basham 590
v. Kinman 630
v. Mossman 292

v. O’Loughlir 590

744 TABLE

PAGE

St. Louis & San Francisco R.

Co. v. Parmer 512
y. Ritz 698
v. Sageley 639
vy. Sherlock 475
vy. Thomason 581, 639
v. Tribbey 409
St. Louis & Southeastern R.
Co. v. Dorman 488
St. Louis, Ark. & Tex. R. Co.
v. Felton 593
y. Hanks 591
vy. Holden 631
v. McKinsey 659
v. Pickens 645, 646
vy. Turner 504, 508, 510
St. Louis Cattle Co. v. Ghol-
son IQt
v. Vaught 268
St. Louis, I. M. & S. R. Co.
y. Biggs 631, 647, 648
y. Bragg 588
\. Brown 635
vy. Deshong 516
vy. Ferguson 657
v. Goolsby 349
vy. Hagan 639
vy. Hendricks 505
vy. Lear 466
v. Lesser 470
v. Lewis 604
v. Parks 641
vy. Pumphrey 503
vy. Spann 475
v. Taylor 632, 639
v. Vincent 642
vy. Weakly 470, 514
y. Williams 650
v. Wright 630
St. Lois K. & S. R. Co. v.
Hammers 607
St. Louis, K. C. & N. R. Co.
i Cleary 478
v. Piper 465, 4
St. Louis S. W. R. Co. v. ad
Nelson 467
yv. Smith 351
vy. Stanfield 5O1
v. Vaughan 466, 514
v. Williams 509, 514
St. Louis, V. & T. H. R. Co.
v. Hurst 507
v. Morgan 593
v. Washburn 661
St. Louis, W. & W. R. Co. v.
Curl 687, 697
Salem v. Walker 248
Salisbury vy. Green 188

OF CASES.
PAGE
Salley v. Manchester & A. R.
Co. 591
Salvas v. New City Gas
Co. 252
Salzenstein v. Mavis 344
Sammell v. Wright 429
San Antonio & A. P. R. Co.
v. Graves 469, 499
v. Knoepfli 679
v. Leal 641
v. Long 580
v. Peterson 657
v. Robinson 674
v. Wright 478, 510
Sanders v. Britton 78
v. Teape 277
Sanderson v. Lawrence 316
Sandow v. U. S. 50
Sandusky & C. R. Co. v.
Sloan 620
Sarch v. Blackburn 383, 384,
385, 393
Sargent v. Slack 435
v. Usher I
Sarver v. Chic., B. & Q. R.
668

Co.
Saunders v. Short 72
v. South. Pac. R. Co. 407
SaNaee Vit M. & St. P.

156, 657
Savannah & W..R. Co. v.
Jarvis 590, 638
Savannah, F. & W. R. Co. v.
Geiger 267, 577, 608
v. Gray 590
v. Rice 590, 639
y. Wideman 590
Sawyer v. Gerrish 7

Saylor v. Montesano
Scaggs v. Del. & H. tor

Co. 601, 602
Scannal v. Cambridge 195
Scarfe v. Morgan 445
Scetchet v. Eltham 376
Schaefert v. Chic., M. & St.

P. R. Co. 601, 623
Schaeffer v. Jackson Tp. 197

v. P. & R. R. Co. 493
Schaller v. Connors 400
Schee v. Shore 990
Schertz v. Indianapolis, B. &.

W. R. Co. 583
Schillinger v. Verona 200
Schindler v. State 184

Schlachter v. Wachter —_ 320, 435
Schlengener v. Chic., M. &

St. P. R. Co. 630
Schmid v. Humphrey 380

TABLE OF CASES. 745

PAGE ' PAGE
Schmidt v. State 341 Sharp v. Clark 485
Schneekloth v. Chic. & W. v. Powell 240

M. R. Co. 685 Sharpe v. Bettis
Schneider v. Anderson 102 Sharrod v. London & North-
Schneir v. Chic., R. I. & P. western R. Co. 630, 686

R. Co. 638 Shaw v. Craft 391
Schoen v. Atlanta 353 vy. Great S. & W. R. Co. 481
Schoenfeld v. Louisv. & N. v. Hartford 56

R. Co. 506 v. McCreary 410
Scholefield v. Robb 77, 90, 92, 94 vy. Saline Tp. 210
Schoonmaker v. McNally 252 v. York & N. M.R. Co. 471
Schroeder v. Faires 436 Shawhan v. Clark 328
Schubert v. Minneapolis & Sheaf v. Utica & B. R. R.

St. L. R. Co. 621 Co. 680
Schuenke v. Pine River 240 Sheaffer v. Sensenig 432
Schwartzchild v. Nat. Steam- Shelby v. Randles 64

ship Co. 470 Sheldon v. Chic., M. & St. P.
Schwarz v. Hannibal & St. J. R. Co. 641, 642

R. Co. 614 Shell v. State 547
Scott v. Buck 275 Shelley v. Ford 432

vy. Grover 270 Shellhammer v. Jones 451
v. Hogan 444, 445, Shepard v. Buffalo, N. Y. &
v. McAlpine , 47 E. R. Co. 662
v. Mercer 442 Shepherd v. Bristol & E. R.
v. Renick 81 Co. 485
v. Wilm. & R. R. Co. 638 Vv. Hawley 115

Wirshing 275 Shepherd’s Case 552
Sératiord v. Gibbons 102 Sherborn v. Wells 204
Scribner v. Kelley 238 Sherfey v. Bartley 384
Seacord v. Peo. 354 Sheridan v. Bean 284
Searles v. Milwaukee & St. P. v. Midland G. W. R. Co. 477

R. Co. 611 Sheriff v. James 319
Seawell v. Raleigh & A. R. Sherman v. Braman 316

Co. 590 v. Favour 301
Seebaum v. Handy 443, 451 Sherrod v. Langdon 342, 343
Seeley v. Peters 205 Sherwood v. Hamilton 212, 213
Seibert v. Mo., Kan. &T. R. v. Neal 441

Co. 582 Shewalter v. Ford 77, 92
Seifried v. Hays 354 Shewan v. Drummond 556
Selby v. Wilmington & W. R. Shillitoe v. Claridge 94

Co. 490, 508 Shipley v. Colclough 204
Selkirk v. Stevens 558 Shipman v. State Live-Stock
Sellar v. Clelland 99 Sanitary Comn. 351, 352
Selleck v. Lake Shore & M. Shipton v. Lucas 155

S. R. Co. 599 Shipway v. Broadwood 97
Selma, R. & D. R. Co. v. Shoobert v. De Motta 105, 106

Webb 630 Short v. Bohle 328
Selover v. Osgood 260, 270 v. Matteson 99
DrINGES v. St. Louis & S. F. Shroaf v. Allen 303

. Co. 345 Shubrick v. State 180, 183
Sentell vy. New Orleans & C. Shultz v. Griffith 382, 405, 416

. Co. 67, 145 v. Quinn 286
Sues v. Garner 93 Shuman v. Indianapolis & St.
Seymour v. Cook 458 L. R. Co. 588
‘Shaffner v. Pinchback 304 Sibley v. Aldrich 454
Shain v. Searcy 369 Sides v. Cline 451
Shampay v. Chicago 249 Siegrist v. Arnot 448

Shannon v. Wolf II Siemers v. Eisen 325

746

Siglin v. Coos Bay, R. & E.
R. & N. Co.

Sika y. Chic. & N. R. Co.

Silver v. Kan. City, St. L. &
C. R. Co. 655;

Simkin v. London & N. W.

R. Co. es,
Simkins v. Columbia &GR
Co.
Simmonds v. Holmes

Simons v. Casco Tp.
Simpson vy. Great Western R.

Co. 632,
v. Griggs
v. Potts
v. Proctor
v. State
v. Unwin
Simson yv. London Gen
Omnib. Co.
Sinard v. Southern’ R.
oO. 582,
Sinclair v. Mo., K. & T. R.
Co. 645,
v. Pearson

Singleton v. Williamson 305,

Sinkling v. Ill. Cent. R. Co.

Sinram v. Pittsburgh, F. W.
& C.R. Co.

Sisk v. Crump

pagan 3s Cleveland & T. R.

oO.
Skinner v. Caughey
Slaughter v. Marlow

v. Moore

v. State
Slaughter-House Cases
aia Worcester & N. R.

0.

Slessman v. Crozier
Slinger v. Henneman
Sloan v. Bain

v. Gt. North. R. Co.

v. Hubbard 263, 617,
meee ee St. Louie dt M.&S.

Small v. Weer

Smart v. Allison

Smethurst v. Proprs.
Cong. Church

Smillie v. ‘Boyd

Smith v. Bailey

. Barre R. Co.

. Bivens

Borst

. Brownlee

Buck

. Chic., C. & D. R. Co.

Ind.

320,

sasss<8

TABLE

PAGE

155
619

662
684
* 637

136
218

608

OF CASES.

Smith

Vv

tt4s48438

aa

<« <

<3

asses

ta488888

=

se8 S322

sss

s

<aes

PAGE
v. Chic., M. & St. P.
. Co. 6p.
Chic., R. I. & P. R.
Co. 591, 623, 68%
Com. 168
Consumers’ Ice Co. 163.
Cook 43:
Dearlove 457"
. Eastern R. Co. 63>
French 338
Gates 316, 322
. Green 34z°
. Griswold 165. .
. Hannibal & St. J. R.
Co. 5o7
: Holmesburg, T. & F.
Elec. R. Co. :
. Hunt S7E
Hurll 400, 413.
. Indianap. & St. L. R.
Co. 644.
. Jaques 284
. Johnson 271
Justice &@

Kanawha Co. 202
Kan. City, St. J. & C.

B. R. Co. €22
Kiniry 447, 448
Lawrence 429
Marden 449
Mason SE
Matteson 339
Mich. Cent. R. Co. 405
. Midland R. Co. . 493, 514:

New Haven & N.
Co. 490, a 516:
New York Cent. R.

Co. 407

Oatts 209 -

O’Bryan 7

Relah BOQ
. People’s Mut. L. S

Ins. Co. 162: -

Race 347
. Robertson 446
. St. Louis, I. M. & S.

R. Co. 654
. Sherwood Tp. 233, 230 -
. Smith 250.
. State, 43 Tex. 433 hy A

State, 21 Tex. App.

133 185.

State, 24 Tex. App.

290 182

Stevens ILE
. Swarthout 79
. Team 335.
. Walker Tp. 243, 249»

TABLE OF CASES. 747

PAGE PAGE

Smith v. Wallace 324 Spigener v. Rives 298

v. Apia 56 J. P. Spillman v. State 6
137, 138 Spinner y. N. Y. Cent. & H.

v. ‘Wiliams, 2 Mont. 195 R. R. Co. 674

267, 274, 275 Spitler v. Young 309, 321

v. Wright 318 Spooner v. Manchester 431
Smitha v. Louisville & N. R. Sprague v. Fremont, E. & M.

Co. 508, 510 V. R. Co. 267

Snap v. Peo. 135 v. Mo. Pac. R. Co. 508

Sneesby v. Lancashire & Y. Spray v. Ammerman 130, 139, 166
. Co. 607 Spring Co. v. Edgar 372, 391,

Snook v. Clark 624, 693 392, 304

Snow v. McCracken 304 Springsteed v. Lawson 91, 94

Snowden v. Norfolk S. R. Sproat v. Direc. of Poor 408

Co. 588 Spruance v. Truax 313

v. Waterman 92, 342 Spruill v. State 176
Snyder v. Baker 99 Squires v. N. Y. Cent. R.

v. Patterson 409 Co. 475

S. P. C. A. v. Coursolles 538 v. Whisken 362
v. Graetz 527 Stacey v. Winona & St. P. R.

v. Lowry 532 Co. 586, 679

v. Shepard 540 Stackpole v. Healy 281, 297, 301
Sollers v. Sollers 29 Stacy v. Knickerbocker Ice

Sosat v. State 136 Co. 428

South & North Ala. R. Co. v. v. Phelps 206

Bees 630, 638 Staetter v. McArthur 391, 396

v. Brown 630 Stafford v. Ingersol 262, 273

v. Henlein 469, 506 Stage Horse Cases 525, 531, 541

v. Jones 589 Stager v. Harrington 340

v. Morris 650 Stamm v. South. R. Co. 628

v. Pilgreen 638 Standard Cattle Co. v. Baird 54

v. Reid 629 Stanley v. Davenport 232

South Side Pass. R. Co. v. v. Mo. Pac. R. Co. 614

Trich 332 Stanser v. Bacon 572

Southern R. Co. v. Harrell 691 Stansfield v. Bolling 150
v. Varn 645 Stanton v. Louisville & N. R.

Southern Kansas R. Co. v. Co. 599, 600, 635

McKay 622, 685 Starck v. State 168

v. Schmidt 505 Stark v. Lancaster 204
Southern Pac. R. Co. v. Mad- Starnes v. Louisv. & N. R.

dox 471 Co. 470

Southworth v. Old Colony State vy. Abbott 182

& N.R. Co 626 v. Ackerman 368

v. Owenton & S. G. v. Alexander 173

Turnp. Co. 209 v. Allen 554

Soward v. Chic. & N. R. y. Allison 544

Co. 668 vy. Anderson 116

Sowerby v. Smith 569 v. Apel 115

Sowles v. Moore 205 v. Avery 531, 535, 553

Spaight v. McGovern 132 v. Barnard 549

Sparr v. St. Louis 232 v. Beekman 547, 548

Spaulding v. Oakes 413 v. Bliler 307

v. Winslow 195 v. Bogardus 537

Spealman v. Mo. Pac. R. Co. 696 v. Bosworth 545

Spect v. Arnold 294 v. Bowers 178

Spence v. Chic & N. R. Co. 610 v. Briggs 547

Spencer v. Shelburne 425 v. Brocker 544

Spies v. Rosenstock 307 v. Brown 62

748

State v. Bruner

v.

fa.

aAadanactaded te eet teste stds eaass

TABLE

PAGE

528, 543

Buckles 181

. Buckman 356
. Bucknam 506

. Butler (Del.), 43 Atl.

Rep. 480 63
. Butler, 65 N. C. 309 173
Butts 536, 550
. Campbell 553
. Cardelli 48
Carr 174
. Chapel 560
. Clark, 65 Ia. 336 306
. Clark, 86 Me. 194 544
Colby 65
. Cole 184
. Comfort 543
. Council C47
. Crenshaw 528
. Crichton 540
. Crow 175, 182, 185
. Cumberland & P. R.
Co. 627
. Deal 555
. Divine 651
Doe 62, 64
. Donnegan 180
. Donohue 277, 391
. Duckworth 345
Dunnavant 180
. Dycer 366
. Edmonds 267
. Ellis 175
. English 184
. Enslow 552
. Everage I7I
. Falk 366
. Falkinburge 51
. Farrell 564
. Faucett 186
. Fisher 353
. Fletcher 116
. Forsythe 361
Fox 341
Garner 544
Gazell 174
Geer 550
Gilbert 174
Giles 528, 544
Godet 183
. Godfrey 530
2 Gray 174
. Greenlees 555
. Groves 528
. Hackfath 530, 531
. Hall, 3 Ohio N. P.
125 63
. Hall, 27 Tex. 333 186

OF CASES.

| PAGE
State v. Hambleton 528, 555
vy. Harriman 61

v. Harris 550, 551

v. Haws 186

v. Hayes 169

v. Heath 555

v. Higgins 562

v. Hill, 79 N. C. 656 555

v. Hill, 19 S. C. 435 175

v. Holder 62

v. House 10, 36

v. Howard 66

v. Hull 177

v. Humphrey 169

v. Hunter 319

v. Isaacson 554

vy. Isley 531

vy. Jackson 555

y. Jenkins 183

v. Johnson, 41 Minn. 111 208

a

ASA SS44444488445S58488844448 488845

Vv.

. Johnson (Wyo.), 54
Pac. Rep. 502 278
Judge 630
Judy 5364

. Karstendiek 541
King 48
Kowolski 232
Krider 29
La Bounty 554

. Labertew 184

. Landreth 536
Lange 182
Langford 61
Latham 548, 549, 552
Lawn 178, I81
Lemon 363
Lightfoot 552, 555
Linde 553
Live Stock Commrs. 118
Luce 355
Lymus 62
Lynch 506
McCarron 555
McCormack 115
McDermott 306
McDonald 181
McDuffie 549
McGuire 506
McKee 168
McKeon 189
McLain 183
McMinn 182

. Manuel 548

. Marshall 550

. Martin 171, 177
Matthews 186

. Mease 130

. Moore, 1o1 Mo. 316 168

<<

<

=

sil wound co eee a a

aaas88

fA Ae

TABLE OF CASES.

PAGE PAGE
State v. Moore (N. J.), 42 State v. Turner 39

Atl. Rep. 1063 142 v. Vay 143

. Morris 353 v. Walker 185

. Murphy, Blackf. v. Walsh 367
(Ind.) 498 20 v. Ward, 49 Conn. 429 181

: Murphy, 39 Tex. 46 182 v. Ward, 19 Nev. 297 168

Neal 530 v. Watkins 543
Newby 552 v. Wheeler 547
Mork Pac. Expr. Co. 558 v. White 177
Norton 560 v. Wilcox 552
O’Neal 187 v. Williamson 553
Otis 467 v. Woodbury 355
Parker 36, 567 v. Woodruff 168
Patterson 544 v. Yates 62, 63
Peters 562 v. York 168
Phipps 553 v. Young 318
Pierce 555 State Bk v. Lowe 109
Plunket 180 Stearns v. McGinty 279
Porter 538 v. Old Colony & F. R.
Pruett 528 612, 629
Pugh 544 v. fone 366
Randolph 504 Stebbins v. Mayor 143
Repp 17, 20 Steel v. Metcalf 189
Rivers 537 Steele v. Burkhardt 253
Roberts 187 v. Mo. Pac. R. Co. 651
Roche 531 vy. Smith 412
Rodman 561, 565 Steers v. Manton 357
Rorie 363 Steiner v. Phila. Trac. Co. 603
Royster 182 Stephen v. Omaha & R. V. R.
Saunders 558 Co. 600

. Scott, 2 Dev. & Bat. Stephens v. Chappell QI
L. (N. C.) 35 555 v. Davenport & St. P. R.

. Scott, 64 N. C. 586 169 Co. 634, 688
Seagler 173 v. Gifford 70
Shannon 574 v. State 535
Shaw 51 Stephenson v. Brunson 118
Shevlin 452 v. Ferguson 205
Slaughter-house & Stern v. Hoffman Brewing
Refg. Co. 355 Co. 288

: peg 1 Cheves (S.C.) Stevens v. Bradley 342

551 v. Curtis 313
Sraith, 21 Tex. 748 555 v. Navigazione Gen. Ital. 495
Snell 347 Stevenson v. N. O. Pac. R.
Spear 307 oO. 689
Spink 544 Stevenson, J. C., The 492, 514, 521
Stelly 186, 187 Steward v. Coesvelt 79
Stone 567, 508 Stewart v. Ball 43
Sumner 549 v. Benninger 204
Taylor 31, 179 v. Burlington & M. R.
Thomas 566 Co. 611
Thompson, 95 N. C. v. Chic. & N. R. Co.
506 170 610, 634, 688
Thompson, 40 Tex. v. Cleveland, C., C. & St.
515 186 L. R. Co. 478
Thrasher 562 v. Davis 426, 432

. Tincher 261 v. Hunter 48, II5, 117
Tootle 182 v. Pennsylvania Co. 685

. Topeka 298 v. Porter Mfg. Co. 222, 239

asae

750 TABLE

PAGE

Stiles v. Cardiff Steam Navig.
Co. 399

Stimpson v. Un. Pac. R. Co. 681

Stoddart v. Sagar 368

Stollenwerk v. State 178

Stokely v. State 168

Stone v. Clay 362, 365

vy. Hubbardston 217

vy. Kopka 261

vy. Langworthy 255

v. State 552

Storey v. Brennan 362, 364

y. Patton 442

v. Robinson 305

Storms v. White 117

Storrs v. Emerson 92
Story v. Chic, M. & St. oa

R. Co. 595, 619

y. Robinson I4I

Stott v. Scott 450
Stoutimore v. Chic., M. & St.

P. R. Co. 695
Stovall v. Emerson 267, 275
Stratford Turf Assn. v. Fitch 367
Strauser v. Kosier 309
Street v. Blay 98

y. Sinclair 189

v. Tugwell 360
Streett v. Laumier 244, 257
Strever v. Chic. & N. R. Co. 595
Strong v. Chic. & N. R. Co. 677
Strouse v. Leipf 410
Strup v. Edens 324, 329
Stuart v. Crawley 492, 493
Stuber v. Gannon 390
Studer v. Buffalo & L. H. R.

Co. 658
Studwell v. Ritch 2606
Stufflebeem v. Hickman 2890
Stumps v. Kelley 415
Stumps v. St. Louis, K. C.

& N. R. Co. 475, 517,

519, 521
Sturges v. Raymond 114
Sturgis v. Kountz 125
Sturtevant v. Merrill 262, 270, 271
Suffolk, The 519
Sullivan v. Clifton 109, aps III
v. Hannibal & St. J. R.
Co. 615
v. MeWilliam 324
v. Oreg. R. & N. Co.
. 653, 660, 692
v. Scripture 331
Sullivan Co. v. Arnett 163
v. Sisson 208
Sunderland v. Pioneer Fire-
proof Constr. Co. 644

OF CASES.

parla v. Hannibal & St. J.

. Co.
Sutherland v. Hutton
Sutter v. Omnibus Cable Co.
Suttle v. Hutchinson
Sutton v. Beach 316,

v. Moody 8,
Suydam v. Moore
Swain v. Security Live-Stock
Ins. Co.
Swan v. Saunders
Swann v. Brown
Swans, Case of
Swanson v. Melton
Swearingen v. Mo.,
R. Co.
Sweeney v. Sweet
Swift v. Applebone
v. Gifford
Swigart v. Peo.
Swink v. State
Sylvester v. Maag

39, 527,

K. & T.

Taber v. Jenny

Tabor v. Salisbury III,

Taft v. N. Y., P. & B. R. Co.

Talbot v. Minneapolis, St. P.
& S.S. M. R. Co.

a te W. Va., C&PR.

Tallshasees v. Fortune
rama Rensselaer & S.
fe)
Tappen v. State
Tarwater v. Hannibal & St. J.
R. Co.
Tatro v. Bailey
Tattersall v. Nat. Steamship
Co. Limd. 460,
Taunton v. Costar
v. Jervis
Taylor v. Buford

v. Chic., St. P. & K. C.
. Co.
v. Gardiner 81,
v. Gilbert
v. Jackson
v. McKerrow
v. Newman, 21, 120, 134,
135,
v. Robertson
v. State
Welbey
‘ache B. & H. R. Co. v.
Montgomery

Teater v. Seattle
Tellier v. Pelland
Tempest v. Fitzgerald

TABLE OF CASES.

PAGE
“Wen Hopen v. Walker 136, 164
‘Yenney v. Lenz 65
“Ferre Haute, A. & St. L. R.
Co. v. Augustus

“Terre Haute & I. R. Co. v.

Brunker 507

v. Doyle 509

v. Grandfield 579

v. Grissom 683

v. McCord 621

v. Pierce 637, 686

v. Schaeffer 609, 654, 603
“Verre Haute & L. R. Co. v.

v. Sherwood 468, 460, 514
“Werre Haute Elec. R. Co. v.

Yant 604

“Werritory v. Crozier 553

“Terry v. N. Y. Cent. R. Co. 638

“Wewkesbury v. Bennett 89

‘Yewksbury v. Bucklin 285
“Wexas & Pac. R. Co.v. Arnold

514, 516

v. Avery 473, 478

v. Barber 521

v. Barnhart 466, 495

v. Bigham 480

v. Billingsly 684

vy. Birchfield 488

v. Glenn 675

‘vy. Klepper 517

v. McDowell 583, 646

v. McManus 598

v. Mitchell 583

v. Newton 607

-v. Randle 517, 520

v. Reeder 468

v. Scott 5901, 656

v. Scoville 5909

v. Scrivener 465, 647

v. Sims 517

v. Smith 674

v. Stribling 496, 407
v. Tom Green County

Cattle Co. 406

v. Truesdell 518

v. Turner 482
‘Wexas & St. L. R. Co. v.

Young 679
“Wexas Cent” R. Co. v. Chil-

dress 577, 661

Texas M. R. Co. v. Hooten 691

“Thayer v. Arnold 262, 270

Thickstun v. Howard 453, 455
‘Third Munic. of N. O. v.

Blance 298

“Thomas v. Fredericks 5
v. Hannibal & St. J. R.

Co. 661

Thomas v. Morgan
v. North. Pac. Expr. Co.
485,
v. Royster
v. Springville City
v. State, 30 Ark. 433
v. State, 14 Tex. App. 200
Thompson v. Anderson
v. Corpstein
v. Dodge
v. Grand Trunk R. Co.
v. Harlow
v. State, 67 Ala. 106
v. State, 51 Miss. 353

751

PAGE

403

567
331
354

4
530
105
204
235
622
425
535
555

v. State, 25 Tex. App. 161 50

Vv. State, 37 Tex. Cr. 654 117
Thomson v. Cartmell 379
Thorpe v. Cowles 105, 106

v. Rutland & B. R. Co 680
Thurmond v. State 1 49
Thwaites v. Coulthwaite 304
Tiarks v. St. Louis& I. M. R.

Co. 681
Tibbs v. Smith 20
Tickell v. St. Louis, I. M. &

S. R. Co. 690
Tifft v. Tifft 412
Tillett v. Ward 282
Timins v. Chic., R. I. & P. R.

oO. 677
Timm v. North. Pac. R. Co.
267, 618
Timor, The 495
Tinker v. N. Y., O. & W. R.

Co. 222, 598
Titcomb v. Fitchburg R. Co. 656
Tittle v. State 48
Titus v. Northbridge 194, 202,

203, 211
Tobin v. Deal 141, 303

v. London & N. R. Co. 502
Todd v. Rowley 255, 404
Todrick v. Wilson 540
Toledo & W. R. Co. v.

Daniels 658

v. Fowler 653, 6590
Toledo, C. S. & D. R. Co. v.

Eder 658
Toledo, P. & W. R. Co. v.

Arnold 636

v. Bray SOI

v. Darst 660, 680

v. Deacon 642

v. Johnston 619, 647, 608

v. Parker 645

v. Pence
Toledo, St. L. & K. C. R. Co.

v. Burgan 621, 670, 671

TABLE OF

752
PAGE
Toledo, St. L. & K. CR.
Co. v. Crittenden 59090
v. Fenstemaker 679
y. Franklin 677, 683
v. Jackson 625, 626, 683, 605
v. Milligan 643
Toledo, W. & W. R. Co. v.
Barlow 609
v. Cary 609
v. Cohen 659
v. Cole 528, 656
v. Hamilton 495
v. Howell 669
v. Lockhart 501
v. McGinnis 588, 504, 628
v. Milligan 631, 675, 686
v. Spangler 669
v. Thompson 492, 498
v. Weaver 689
Toles v. Meddaugh 284
Tolhausen v. Davies 334
Toms v. Whitby 212
Tonawanda R. Co. v. Munger
262, 281, 207, 301, 577, 616
Topeka v. Hempstead 209
v. Tuttle 224
Totten v. Cole 139
Toudy v. Norfolk & W. R.

Co. 506
Tower v. Providence & W. R.

Co. 264, 626

v. Tower 142
Towle v. Raymond 442
Town v. Lamphire 264
Towns v. Cheshire R. Co. 667
Townsend v. Wathen 137
Townsley v. Mo. Pac. R.

Co. 690
Tracy v. Troy & B. R. Co. 687
Travis v. Carrollton 249
Tredway v. S. C. & St. P. R.

Co. 656, 696
Trenholm v. Mills 136
Trenton Pass. R. Co. v.

Cooper 642, 644
Trestler v. Dawson 235
Trexler v. Greenwich Tp. 197
Trimble v. Lanktree 75

v. State 173
Trinity & S. R. Co. v.

Brien 402, 417, 462
Tripp v. Northwestern Live-

Stock Ins. Co. 159
Trompen v. Verhage 400
Tronghear v. Dewhirst 74
Troth v. Wills 287
Trow v. Vermont Cent. R.

Co. 620

CASES.

Truax v. Chic., St. P., M. &
O. R. Co.

Truesdale v. Jensen
Trumbull v. O’Hara
Tucker v. Henniker

v. Pac. R. Co.
Tumlin v. Parrott
Tupper v. Clark
Turley v. State
Turman v. State
Turner v. Buchanan

v. Craighead

v. Kan. City, St. J. & C.

232,

B. R. Co. 597,
v. McLaren 130,
v. Morgan
Vv.

. St. Louis & S. FL R.
Co. 577)
v. Stallibras
i State
Thomas
Tuthill v. North. Pac. R. Co.
Tuttle v. Dennis
v. Holyoke
Ex parte
Twigg v. Ryland
Tyner v. Cory
Tyson v. Grand Trunk R. Co.
v. K. & D..M. R. Co.
. 673;
v. Simpson

Uhlein v. Cromack
Ulery v. Jones
Umlauf v. Bassett
Underwood v. Birdsell
v. Green
v. Henderson
Unger v. 42d St. & Grand St.
Ferry R. Co.
Union Co. v. Ussery
Union Pac. R. Co. v. Bullis

3, 36,

577, 641,
v. Dyche
v. Hutchinson
v. Langan
v. Rainey 488,
v. Rassmussen
v. Rollins 261,

Union Stock Yard & Transit
Co. v. Mallory, etc., Co.

434,
v. ae Land & Cat.

0.

Union St. R. Co. v. Stone

Union Trust Co. v. Kendall

United Elec. R. Co. v. Shel-
ton

PAGE

TABLE

PAGE

U.S. v. Boston & A. R. Co. ae

v. Cloete
v. E. Tenn, V. & G. R.
Co. 487
v. Eleven Horses 56, 446
v. Flanakin 181
v. Gideon 58, 550, 552
v. Harris 487
v. Hopkins 487
v. Jackson 526
v. Magnon 56
v. 196 Mares 446
University of London v. Yar-
ow 543
Unsel! v. State 49
Urton v. Sherlock 344
Usher v. Hiatt 276
Valesco v. State 180
Valleau v. Chic., M. & St. P.
R. Co. 22, 637
Valley v. Concord & M. R.
Co. 230
Van Bracklin v. Fonda 82
Van Hoosear v. Town of Wil-
; ton 164
Van Hoozer v. Cory 70

Van Horn v. Burlington, C.
R. & N. R. Co. 610, 611

v. Peo. 64
Van Houten v. Fleischman 333
Van Leuven v. Lyke 287
Van Slyck v. Snell 271
Van aie v. Chic., St. P. &

C. R. Co. 584, 641
Van Senin: v. Tobias 413
Van Wagoner v. aa oe
Cement Co. 257
Vance v. Throckmorton 454
Vandegrift v. Delaware R. Co.
652, 663
v. Rediker 262, 615

Vanderkar v. Rensselaer & Ss.
R. Co.

676

Varco v. Chic., M. & St. P.
R. Co. 647, 658
Varden v. Mount 308
Varney v. Jackson ee

Vaspor v. Edwards 302, 304, 306
Vaughan v. Kansas City, S.
&

. R. Co. 641

Vaughn v. Wabash R. Co.
469, 519, 520

oe v. Chic. & N. R.
657, 668, se

Vere v. “Taed Cawdor
Vermont R. Co. v. Paquette cy
Verrill v. Minot 195

48

OF CASES. 753

PAGE

Vézina v. Reg. 5909
Vicksburg & J. R. Co. v.
Patton 267, 649
Vicksburg & M. R. Co. v.
Hamilton 6390
Vinal v. Spofford 451, 452
Vinine v. Millar IIo
Vinton v. Vinton 319
Vital v. Tétrault 294, 387
Voak v. North. Cent. R. Co.
506, 642
Vogelgesang v. St. Louis 2II
Von Emons v. State 177
Vose v. Whitney Ill, 441
Vredenburg v. Behan 372
Wabash R. Co. v. Aarvig 5890
v. Ferris 656
v. Forshee 660
v. Howard 683, 684
v. Jones 628
v. Kime 671
v. Lannum
v. Perbex 609, 661, 672
v. Pickrell 692
v. Speer 507, 628
v. Williamson 674
Wabash, St. L. & P. R. Co.
v. Black 509
v. Krough 588
v. Neikirk 650
v. Nice 610
v. Pratt 495, 515
v. Tretts 660, 675

Wachtel v. East St. Louis &
St. L. Elec. R. Co. 603

Waco v. Powell 299
Waco Artesian Water Co. v.

Cauble 439
Wadhurst v. Damme 128, 133
Waggoner v. Oursler 102

v. Whaley 55
Wagner v. Goldsmith 325
v. Jackson Tp. 196
Wagoner v. Evans 53
Wagstaff v. Clack 305

Wait v. Bennington & R. R.
Co. 677, 679

v. Burlington, CG. R &

N. R. Co. 672, 673
Wakeman v. Robinson 328
Walden v. Murdock 73
Waldo v. Beckwith 434
Waldron v. Hopper 335

v. Rensselaer & S. R.

Co. 665
Wales v. Ford 285
Walford v. Mathews 385

754 TABLE

PAGE

Walker v. Armstrong 361, 360

v. Bloomingcamp 263

v. Columbia & G. R. Co. 640

v. Green 468

v. Herron 350

v. Hoisington 77, 94, 95

v. Keenan 481

vy. Matthews 190

v. Sharpe 454

v. State 544

vy. Watrous 274

v. Wetherbee 313

Wall v. Garrison 450
Wallace v. St. Louis, I. M.

& S. R. Co. 585, 594, 595
v. San Antonio & A. P.

R. Co. 635

v. State 555

v. Woodgate 452
Waller v. Midland Great

West. R. Co. 518
Wallingford v. Columbia & G.

R. Co. 490, 513
Wallis v. Mease 20
Walls v. Long , 452
Walsh v. Virginia & T. R. ee

638, 654, 667, 681
Walters v. Glats 114, 118
Walthers v. Mo. Pac. R. Co. 659
Walton v. London, B. & S.

C. R. Co. 327

Ward v. Brown 285
v. Hobbs 74, 340
v. Lakeside R. Co. 603
v. North Haven 206
v. Paducah & M. R. Co. 680
v. Race Horse 560
v. St. Louis, I. M. & S.
R. Co. 690
v. State 62
v. Wilmington & W. R.
Co. 580
Wardell v. Chisholm 317
Warden v. State 170
Wardrope v. Duke of Hamil-
ton 121
Ware Cattle Co. v. Anderson
_ 435, 436

Warner v. Chamberlain 396,
402, 416
v. Wilson 102
Warren v. Buck 83

v. Chic, M. & St. P. R.
Co. 587, so, 638

v. Keokuk & D. M.

Co. ” 662
v. State 36, 37
Warring v. Cripps 302, 304

OF CASES.
PAGE
Washburn v. Cuddihy 77, 94
v. Jones 457
Washington v. Balt. & O. R.
Co. 590, 618
v. State 182
Wasmuth v. Butler 325
Wason v. Rowe 6, 88
Wasson v. McCook 638
Waters v. Moss 205
v. Peo. 538
v. Richm. & D. R. Co. 504
v. Wing 245
Watier v. Chic., St. P., M. &
O. R. Co. 613
Watkins v. Reddin 232
v. Rist 271
v. Roberts 426
Watson v. Bridge Co. 163
v. Camden & A. R. Co. 336
v. Denton 77, 95
v. State 182
Watts v. Ward 116
Wattson v. Phila. & T. R.
Co. 589
Way v. Foster 432
Weathered v. Golden 75
Weatherford v. Lowery 237, 247
Weaver v. Scurry Co. 146
Webb v. McFeat 120, 133
v. Oldfield 542
Webber v. Chicago 371
v. Closson 262, 271
v. Hoag 397; 403
v. Lee 569
Weber v. Hartman 116
v. Whetstone 442, 443
Webster v. Power 108
Weide v. Thiel 270

Weingartner v. Louisville &
R. C

N. R. Co. 626
Welch v. Abbot 655
v. Bowen 260
v. Great West. R. Co.
: 474, 500, 520
v. Hannibal & St. J. R.
Co. 586
v. Mohr 430
v. Wesson 309
Weller v. Chic., M. & St. P.
R. Co. 627
Wellington_v. Monroe Trot-
ting Park Co. 370
v. State 574
Wellman v. Susq. Depot 197
Wells v. Head 130
v. Howell 202
v. Littlefield 73
v. State, 11 Neb. 409 181

TABLE OF CASES.

PAGE

Wells v. State (Tex. App.), 13

S. W. Rep. 889 185
Welsh v. Barnes 452
v. Chic., Burlington & Q.

R. Co. 622, 653

Vv. Pittsb., FLW. & C. R.

Co. 469
Welty v. Indianapolis & V.R.

Co. 610, 628
Wentworth v. McDuffie 425
Werner v. Winterbottom 388
West v. Blackshear 425

v. Costello 131
v. Mo. Pac. R. Co. 671
v. State 187
v. Ward 122, 158
West Chicago St. R. Co. v.

Walsh 391
West ae & Cattle Ins. Co.

O’ Neill 159
v. Taam 159

West Mahanoy Tp. v. Watson 220
Westbourne Cattle Co. v. Ma.

& N. R. Co. 664
Westbrook v. Field 532
Western v. Bailey 4
Western R. Co. v. Davis 634

v. Harwell 466, 470, 478,
489, 508, 513

v. Huse 634

vy. Lazarus 586, 589
Western & Atl. R. Co. v.

Brown 647

v. Main 595

v. Trimmier 590

Western Md. R. Co. v. Carter 612
Western Union Tel. Co. v.

Quinn 253
v. Williford 75
Westfall v. Perry 438
Westgate v. Carr 286
Weymouth v. Gile 284
Whalon v. Blackburn 271
Wheatley v. Harris 58, 121
Wheeler v. Brant 382
v. Friend 367
v. State 174
Wheelock v. Wheelwright 430
Whelden v. Chappel 432
Whilton v. Richmond & D.

R. Co. 582
Whipple v. McIntyre 356
Whitbeck v. Dubuque & Pac.

R. Co. 611
White v. Ballard 212, 249
vy. Cine, N. O. & T. P.

R. Co. 480

vy. Concord R. Co. 624, 639

White v. Lang
Riley

Storms
Tallman
. Utica & B. R. R. Co.
. Williams
Winnisimmet Co.
White Water Valley R. Co.
v. Quick
Whitehead v. Smithers
v. Vanderbilt
Whiteley v. China
Whiteman v. King
Whitfield v. Longest
v. Paris
Whiting v. Coons
Whitlock v. Heard

sass<<58

v. West 311,
Whitman v. W. & A. R.

Co.
Siig v. Me. Cert. R. Co.

Taylor

Whitsky v. Chic. & G. T. R.

Whittalor v. Helena
Whittemore v. Thomas

Whittier v. Chic. M. & St.

* P.R. Co. 629, 661,

Whittingham v. Ideson 8, 33
34,

Whoram v. Argentine Tp.

Wichita & Colo. R. Co. v.

Gibbs

Wichita & W. R. Co. v.
Koch 508,

Wickham v. Hawker
Wiedeman v. Keller
Wigmore v. Buell
Wilbur v. Hubbard

Wilcox v. Hemming 309, 310,

v. Hogan
v. State
Wild v. Skinner

Wilder v. Chic. & W. M. R.
Co. 650,
v. Me. Cent. R. Co. 621,

v. Speer
v. Stanley

Wildey v. Farmers’ Mut. Fire

Ins. Co.

Wiley v. Slater

v. State
Wilhelm v. Scott
Wilhite v. Speakman
Wilkins v. Day
Wilkinson v. Parrott

v. Tousley 361,

Stelloh 79;

405
363

756 TABLE
PAGE
Willan v. Carter 96
Willard v. Mathesus 266
v. Whinfield 110, 443
Willey v. Belfast 219
Williams v. Chic. & A. R.
Co. 596
vy. Dixon 133
v. Gt. West. R. Co. 343
v. Hannibal & St. J. R.
Co. 606
v. Koehler 325
yv. Mich. Cent. R. Co 262
v. Mo. a R. Co. 621
v. Mora 390
v. New "bau & S. R.
Co. 654
v. North. Pac. R. Co. 267
v. Phelps 189
v. Smith 443
v. State, 92 Tenn. 275 306
v. State, 26 Tex.. App. 131 178
v. Willard 318
Williamson v. Brandenberg
99, IOI
Willis v. Legris 321
yv. Providence Telegram
Pub. Co. 336
Willoughby v. Horridge 242, 482
Wills v. Barrister 440
v. Walters 267
Wilson v. Atlanta 207
v. Beyers 208, 322
v. Brett 420
v. Dickel 428
v. Lexington 446
v. Mo. Pac. R. Co. 468
v. N. Y. Cent. & H. R.
R. Co., 97 N. Y. 87
471, 477
v. N. Y. Cent. & H. R.
R. Co, 58 N. Y.
Suppt. 617 602
v. Newberry 149
v. StL, 1M. & SR.
Co. 621
v. Spafford 221, 239
v. State 176
v. Troy 257
v. Turnbull 89, 95
v. Wil. & Man. R. Co.
592, 640
Wilton v. Weston 164,. 418

Wales State Road Bridge

0.

Winch v. Thames Conserva-
tors

Winchell v. Nat. Express Co.

Windle v. Jordan

OF CASES.

Windsor v. Hannibal & St. J.
Co. 593, 594,

Wingrove v. Williams

Winn vy. Morris

Winship v. Enfield 204,

Winter v. Federal St. & P. V.

Pass. R. Co. 253,
vy. Landphere
Winters v. Jacobs
Wintz v. Morrison 340,

Wirth v. State

Wise v. Gt. West. R. Co.

Wiseman v. Booker

Witherell v. Milwaukee & St.
P. R. Co.

Witkowski v. Stubbs 85,

ae y. Atlantic & P. R.

oO.
Wolcott v. Hamilton
Wolf v. Nicholson
v. State

Wolfe v. Erie
Teleph. Co

Wood v. Ash

. Gilboa

. Kan.

M. R.

La ae

. Remick

St. Louis,

N. R. Co.

. Smith

. Southern R. Co.

Vaughan

Teleg.

rook

K.

comb
Woodard v. Myers

Woodbridge v. Marks 383,
Woodbury v. Robbins
Woodin v. Burford 84,

Woodland v. Un. Pac. R. Co.
Woodman v. Hubbard
oo Mo., K. & T. R.

O.
Woodyear v. Schaefer
Wooldridge v. White 388,
Wooley v. Groton
Woolf v. Chalker 58, 128, 278,
360, 382, 384. 391,
v. Hamilton
Woolsey v. Haas

Wooster v. Chic, M. & St.
P. R. Co.

Worcester Co. v. Ashworth

Workman v. Warder

Wormer v. Biggs

Wormley v. Gregg

3
Wed &G. “Mig. Co. v. Whit-

Woolson v. Northern R. Co.

302,

PAGE
614
261

75
224

626
106
271
342

397
369
130
667

623
414
443
307
3901

TABLE
PAGE
Worrilow v. Upper Chi-
chester Tp. 196
Worth v. Gilling 395
Worthen v. Love 386
Worthington v. Brent 115
v. Wade 156
Wright v. Clark 120, 293
v. Dawson 324
v. Hetton Downs Co-op.
Soc. 343
v. Mahoney 303
v. Pearson 400
v. Ramscot 58, 129
v. Richmond 118
v. Sherman 110
v. State 554
v. Stinson 54
v. Templeton 194, 202, 255
v. Waddell 440
Wyatt v. Rosherville Gardens
Co. 372
Wyers v. State 48

Wylie v. Ohio R. & C. R. Co. 105
Women v. Penobscot & K.

Co. 687

v. Turner 317

v. Wentworth 446
Wymore v. Hannibal & St. J.

R. Co. 639
Yarmouth v. France 376
Yates v. Higgins 527
Yazoo & M. V. R. Co. v

Brumfield 585, 589

OF CASES. 757

Yazoo & M. V. R. Co. v.

Smith _ 590
v. Whittington 589
Yearsley v. Gray 440

Yeazel v. Alexander
bea ik Lebanon & A. St.

. Co, 602
Yoakum v. Dunn 521
v. State 50, 185
Yoders v. Amwell Tp. 198
Yordy v. Marshall Co. 244
Yorke v. Grenaugh 457
Youmans v. Padden 326
Young v. Cowden 330

v. Erie & H. R. Co. 696
v. Hannibal & St. J. R.

Co. 589, 594, 658
v. Harvey 123, 152
v. Hichens id 29
v. Kimball 451, 452
v. New Haven 232
v. Rand 316

Younger v. Louisv. & N. R.
Co. 675

Zeigler v. Northwestern R.
oO. 594
Zimmer v. N. Y. Cent. & H.

R. R. Co. 470
Zimmerman v. Brannon 86
Zouch v. Chesapeake & O.

. Co. 470
Zumstein v. Shrumm 238

INDEX.

The references are to the pages.
AGENCY
warranty by a servant or agent, 84.
liability for driving away of animals by agent, 141 n.
city not liable for illegal acts of its officers, 142.
municipal liability for fright caused by acts of officers and agents, 225,
226, 236.
liability of owner of vicious animal for acts of another, 412.

AGISTMENT
See also BAILMENT.
rights and liabilities of agistors, 434-439.
lien of agistors, 439-444.
priority of mortgage lien to agistor’s lien, 109.
liability of agistor for trespass of animals, 284, 285.
property in stolen animal may be laid in agistor, 177.

ALABAMA
larceny of dogs in, 62.
rule in, as to restraining animals, 265.
injury by railway company to animal at large, 607.
injury made prima facie evidence of negligence, 638.

ALTERING BRANDS AND MARKS
See BRANDS.

“ANIMAL”
cock, 527.
fox, dog, 528.

ANIMUS REVERTENDI
what is, 6-8, 22, 26, 28.

APES
See also MONKEYS.
not the subjects of larceny, 8, 37.

ARKANSAS
rule in, as to restraining animals, 265.
as to lookout on train, 586.
injury by railway company to animal at large, 608.
made prima facie evidence of negligence, 639.

759

760 INDEX.

The references are to the pages.

ASPORTATION
as an element in larceny, 173.
AT LARGE
See Runninc aT LarGe; TRESPASSING ANIMALS;
PHRASES.

ATTORNEY’S FEE
in an action against a railway company, 649.

BAILMENT

nature of, 419-422.

rights of bailee, 422-424.

liability of bailor of diseased animal, 348.

duties and liabilities of bailee, 424-428.

liability of bailee for trespass of animals, 284, 428.
for viciousness of animals, 406, 428.
for injuries to animals, 424.
for negligence of servants, 428-430.

for driving or riding beyond the agreed point, 430.

actions by bailor and bailee, 432.

bailee may recover for injury to animal, 290, 432.
measure of damages, 433.

agistment, 434-4309.

lien of agistors and trainers, 439-444.

breeding, 444.

livery-stable keepers, 446-449.

lien of livery-stable keepers, 449-453.
innkeepers, 453-459.

on a horse-race, whether a wager, 361.
ownership of increase under a bailment, 43, 45.
larceny as bailee, 169.

BARBED-WIRE FENCES
liability for animals injured on, 122, 153-158, 687.

BEARS
See also MENAGERIE.
not the subjects of larceny, 8, 37.
liability of the keepers of, 372.

BEES
property in, 4, 7, 16-20.
as the subjects of larceny, 9, 17, 20, 37.
property in honey, 18, 20.
when a nuisance, 359.
negligence in keeping, 383, 385.

BEHRING SEA ARBITRATION, 7, 26.

WorDS AND

INDEX. 761

The references are to the pages.

BETTING ;
on a horse-race, whether a wager, 361.
meaning of “game,” “gambling device,” etc., 362,
selling pools, 363.
on a race out of the State, 365-367.
what is a “place” for betting, 368 and n.
coupon competition not betting, 368.

BICYCLE
relative rights of horse and bicycle, 234, 248.

BIRDS
See also the Names oF PartTIcuLAR BrrRDs.
property in game birds, 14.
pigeons, doves, pheasants, partidges, swans, 20-23.
miscellaneous birds, 3, 37-40.
singing birds not the subjects of larceny, 8, 37.
stuffed birds are personal chattels, 41 n.

BLOODHOUNDS
evidence of tracking by, when admissible, 63.

BOARS
wild, not the subjects of larceny, 37.
liability of the keepers of, 373.

BOUNTIES
provisions for payment of, to killers of wild animals, constitutional,
146.

‘BRANDS
as evidence of ownership, 47-50.
record of, 48.
“road brand” and “range brand,” 4o.
sale by delivery of, 73.
altering brands and marks, 186.

‘BREEDING
sale of animal for purposes of, 81.
rights and liabilities of renter of services of a male animal for purposes
of, 444-446.
priority of mortgage lien to breeder’s lien, 109.

‘BRIDGES
See Hrcuways.

‘BUFFALO
property in, 36.
not “cattle” within the meaning of statute against cruelty, 528.

762 INDEX.

The references are to the pages.

BULL
See also CATTLE.
liability for injury to horses by, 374.

CALIFORNIA
taxation of cattle in, 55.
rule in, as to restraining animals, 265.
possession of game in, 565.
injury by railway company to animal at large, 608.
made prima facie evidence of negligence, 639.
wager on horse-race in, 367.
distress in, 302 n.
rule in, as to sheep-killing dogs, 130.
rights of chattel mortgagee in, 106.

CANADA
liability in, for the fright of an animal on a defective highway, 212,.
228, 233.
betting on races in Ontario, 367.
possession of game in Ontario and Quebec, 566.
injury by railway company to animal at large, 619.
rule in, as to actual contact, 584.
law as to owner of land adjoining railway, 664, 680.
tule in, as to injury from defective cattle-guard, 680.

CANARY BIRDS
property in, 3, 38.
not the subjects of larceny, 38.
action for killing of, by cat, 120, 133.

CARRIERS

nature of contract of carriage, 460-469.

liability of connecting carriers, 464.

rights and liabilities of one accompanying stock, 466.

restriction of liability for losses, 469-479.

conditions that are “just and reasonable” under the Railway and
Canal Traffic Act, 472-474.

contract signed under duress or by mistake, 478.

when the carrier’s liability begins, 479.

receiving, loading and unloading stock, 480-484.

delivery to consignee, 484.

negligence of shipper in loading, 485, 494.

provision of Revised Statutes of U. S. as to unloading for rest and’
food, 486-488.

duty to provide suitable cars, 488-491.

air and ventilation, 491.

proper fittings and fastenings, 492.

avoidance of jolting, etc., 493.

INDEX. 763

The references are to the pages,

CARRIERS—(Continued.)
disinfecting vessels, 493.
rush of business no excuse for lack of care, 493.
improper interference by shipper, 494.
rats and worms, whether “perils of the sea” or “vermin,” 494.
duty to feed and water stock, 495-498.
liability for unreasonable delay, 498-504.
excuses for delay, 501, etc.
liability for storm or accident, 504.
injuries due to the nature and condition of the stock, 505-508.
liability with regard to fright, 506.
to an animal in foal, 507.
stipulation as to notice of injury, 508-511.
evidence; burden of proof, 479, 511-516.
evidence of value; expert testimony, 514.
measure of damages, 516-522.
diseased animals, liability for the transportation of, 343-350.

CASE
See TRESPASS.

CATS
property in, 8, 33, 37.
killing, how far justifiable, 34, 132, 135.
measure of damages for killing, 34.
action for killing of birds by, 120, 133.

CATTLE
See also BAILMENT; Branps; Carriers; RAILWAY COMPANIES;
TRESPASSING ANIMALS; Victous ANIMALS.
meaning of “cattle,” 181, 289, 400, 528, 640 n, 656.
property in wild cattle, 36.
sale of cattle running on the range, 72-74.
taxation of, 50, etc.
killing trespassing cattle, 135.
driving from the accustomed range, 185.
damages for driving from range, 190.
when cattle are “at large,” 294, etc.
transportation of diseased cattle, 343, etc.
jettison of cattle, 476.
whether “dishorning” and “spaying” are cruelty, 539, 540.

CATTLE-GUARDS
See Rartway CoMPANIES.

CHAMELEONS
not “domestic animals” within the meaning of statute against cruelty,

527.

764 INDEX.

The references are to the pages.

CHARITIES

prevention of cruelty, restriction of vivisection, etc., are, 542-543.

CHICKENS
See also Cock; HEN.
injury to animals pursuing or killing, 128, 132, 133.
when keeping is a nuisance, 360.

CIVIL LAW
property in wild animals, 2, 5, 7, 10 n, 16, 39.
in the increase of domestic animals, 44.
bailment, 453.
injury by a domestic animal; actio de pauperie, 415.
keeping animals near a throughfare, 383.

COCK
See also CuicKENS; HEN.
negligently keeping a savage cock, 385.
when keeping is a nuisance, 360.
is an “animal” within the meaning of statute against cruelty, 527.

COCK-FIGHTING
whether a form of cruelty, 538.

COLORADO
taxation of cattle in, 53.
liability in, for the fright of an animal on a defective highway, 202.
rule in, as to restraining animals, 265.
injury by railway company to animal at large, 608.
rule in, as to actual contact, 583.
injury made prima facie evidence of negligence, 639.

CONFINEMENT
See also the NAMES OF PARTICULAR ANIMALS,
of wild animals, 4, 18, 20, 28.

CONIES
See also RABBITS.
property in, 4, 15, 37.

CONNECTICUT
liability in, for the fright of an animal on a defective highway, 205,
222, 233.
rule in, as to restraining animals, 266.
injury by railway company to animal at large, 608.

CONTRIBUTORY NEGLIGENCE
in cases of injuries to animals on highways, 246-254.
caused by runaway horses, 335, 449.
by vicious animals, 385-390.

INDEX. 765

The references are to the pages.

CONTRIBUTORY NEGLIGENCE—(Continued.)
in cases of injuries caused by diseased animals, 349.
to animals by railway companies, 607-629, 654, 679.
COONS
whether the subjects of larceny, 36, 37-38.

“COW”

meaning of, in an indictment for larceny, 182.

CRANES
as the subjects of larceny, 37.

CROSSINGS
See Raitway CoMPANIES.

CROWN LANDS

grant or license carries right to capture wild animals, 36.

CRUELTY
See also Maticious MIscHIEF.
in general, 523-526.
whether indictable at the common law, 525.
what animals are protected by the statutes, 38, 526-528.
prohibited acts, 529-540.
defences: intoxication; trespass, etc., 535-537.
injury for sport; pigeon-shooting, 537, 538.
fox-hunting, 538.
cock-fighting, 538.
dishorning cattle; spaying, 539-540.
societies for the prevention of cruelty and their powers, 143, 541.
prevention of cruelty, restriction of vivisection, etc., are charities, 542-
543.
indictment for cruelty; what it should charge, 543-545.

CUSTOMS DUTIES
See TARIFF.

CYGNETS
property in, 23, 44.

DAKOTA
See also NortH Dakota; SoutH Dakota. j
rule in Black Hills country as to restraining animals, 266.

DAMAGES
for failure to deliver or accept animals sold, 75-76.
to deliver a telegraphic message as to sale, 75 n.
on breach of warranty, 98-101.
for injuring and killing animals, 163-166, 256-257.
for unlawfully taking or detaining animals, 188-191.

766 INDEX.

The references are to the pages.

DAMAGES—(Continued.)
for the trespass of animals, 278, 308.
for injuries by vicious animals, 416-418.
in cases of bailment, 433, 438.
in actions against carriers, 516-522.
railway companies for negligence, 645-651.
railway companies for failure to fence, 695-608.

DANGEROUS ANIMALS
See Vicious ANIMALS.

DEAD ANIMALS
property in, 5, 8, II, 12, 14, 43.
indictment for larceny of, 183.
liability for fright caused by, 215, 216, 237.
grant of exclusive right to remove, 352-353.
as nuisances, 353, 355.

DEER

property in, 4, 7, 35.
as subjects of larceny, 37.
meaning of “deer” in a statute, 183.

DEFINITIONS
See WorpDs AND PHRASES.

DELAWARE
rule in, as to sheep-killing dogs, 130.
wager on horse-race in, 365.

DELIVERY
See CARRIERS; SALE.

DISEASED ANIMALS
liability for sale of, for food, 82-83.
for sale of, in general, 340-343.
for transportation of, 343-347.
for infection by, 347.

of agistor for cattle catching disease, 435, 437.
scienter of owner, 348.

contributory negligence, 349.
power of municipality to exclude or destroy, 351.

DISHORNING
whether a form of cruelty, 530.

DISTRESS
what animals are distrainable, 188, 305.
of animals damage feasant, 301-306.

INDEX. 767

The references are to the pages.

DISTRESS—(Continued.)
what is a sufficient, 303.
rule as to damage, 304.
who may distrain, 305.
election, 306.

DIVISION FENCES
See FENCEs.

DOCKING
whether a form of cruelty, 534.

DOGS
See also the NAMEs oF STATES.
property in, 57-68, 550.
as the subjects of civil actions, 57-58.
as the subjects of larceny, 8, 9,°37, 57, 59-63.
no crime to obtain by false pretences, 9, 59.
taxation and license of, 64-68.
action for killing, 120, 121, 127-132, 135-140.
proximate results of shooting, 126.
killing, when unlicensed or without collars, 141, etc., 541.
killing a vicious dog, 141, 144.
killing of dogs by railway companies, 591-592, 640 and n.
using, to drive away trespassing animals, 139.
trespass by dogs, 277, 287 n, 288.
when a dog is “at.large,’ 142 n, 292, etc.
ordinance requiring dogs to be registered and collared, 208.
liability for negligence in keeping or controlling, 379, 382, 303-402.
liability for their attacking trespassers, 383-384. .
contributory negligence of the plaintiff, 388-301...
scienter in cases of sheep-killing dogs, 397, 399-400.
noisy dogs a nuisance, 360.
limitation as to liability for carriage of, 474.
delivery to wrong person, 485.
escape during transportation, 492.
malicious mischief to, 549.
evidence of the value of, 164-166.
may be brought into court, 405.
evidence of tracking by bloodhounds, when admissible, 63.
“animals,” 528.
“chattels,” 61, 62, 68.
“domestic animals,” 60.
“dumb animal,” 549 n.
“goods,” 61, 62, 68.
“personal property,” 59, 61, 591 n.
“property,” 58, etc., 66, 68, 549.

768 INDEX.

The references are to the pages.

DOGS—(Continued.)
“stock,” 650.
“thing of value,” 62, 68.

DOMESTIC ANIMALS
nature of property in, 42.
limited estate in, 44.
larceny of, 42, 59, 167, etc.
the increase of, 43-47.
taxation of, 50-57.
meaning of “domestic animals,” 1, 34, 38, 39, 42, 60, 526, 527, 528.

DOMITZ NATURA
See also Domestic ANIMALS.
meaning of, 1, 34, 42.

DOVES
property in, 4, 21.
as the subjects of larceny, 21, 37.

DUCKS
wild, as the subjects of larceny, 37.

DUTIES
See TARIFF.

EGGS
property in, 15-16, 19, 43.
indictment for larceny of, 179.

ELECTRIC RAILWAYS
See Rattway COMPANIES; STREET CAR COMPANIES.

ELEPHANT
See also MENAGERIE.
liability of the keeper of, 373.
for the fright of a horse at, 238.
for injury to, from a defect in the highway, 244.

ENGLAND

Behring Sea Arbitration, 7, 26.

“betting, place for,” 368 and n.

carriers; when restrictions are “just and reasonable,” 472.
limitation of liability, 471.
liability on contract to forward, 464.

cock-fighting, 538.

Criminal Code, report of Royal Commissioners on, 2, 9, 38.

diseased animals, movement of, 343 n.

dishorning, 539.

INDEX. 769

The references are to the pages.

ENGLAND—(Continued.)
dogs, larceny of, 63.
injuries to trespassers by, 383.
game, law as to possession of, 562.
heriot custom, 4 n.
malicious mischief, 546.
railways, law as to fencing of, 663.
whales, property in, 23.

ESCAPE
of wild animals, 2, 3, 6, 19, 24, 28, 146.

ESTRAY
what is an, 114-116.
rights and liabilities of the taker-up, 116-118.
advertisement and sale, 117-118.
indictment for taking and using, 115 n, 116 n.

EVIDENCE
brands as evidence of ownership, 47-50.
carriers, evidence in actions by or against, 479, 511-516.
cattle, evidence in action for driving away, 190.
disposition of animals, 146, 254, 330, 404, 644.
dog may be brought into court, 405.
evidence of value of, 164-166.
evidence of tracking by bloodhound, 63.
expert testimony as to brands, 50.
as to cattle-guards, 695.
as to disease, 350.
as to value, IOI, 514.
fright of other animals, 239, 256, 605.
character of objects causing, 239.
larceny cases, evidence in, 184.
malice, 552, etc.
number of stock on range, 73.
ordinance, 405.
ownership, 65, 405, etc.
railway companies, actions against for negligence, 637-645.
for failure to fence, 692-695.
scienter, 307, etc., 402, etc.
selling unwholesome provisions, 83.
skill of driver, 256.
value of animals killed or injured, 164, 256, 544, 644.
veterinary surgeon, testimony of, not privileged, 166.
warranty, breach of, 79.
breeding capacity, 82 n.
49

770 INDEX.

The references are to the pages.

EXEMPTION LAWS
meaning of “horse” under, 188.

EXPERT TESTIMONY
See EvIDENCE.

FALCON
See Hawks.

FARRIER
lien of, 442 n.

FAWNS
not the subjects of larceny, 15.

FEATHERS
property in, 43.
FENCES
See also RarLway CompaNIEs and the NAMES OF STATES.
liability for injuries resulting from a failure to fence sufficiently or to
close a gate 122, 148, etc., 289, 652, etc.
injuries from barbed-wire fences, 122, 153-158, 657.
liability of a town for a failure to fence as against a frightened animal,
194, etc.
liability of a town for a failure to construct barriers, in general, 240,
etc.
the common-law rule as to restraining animals, 258-265.
abrogation of the common-law rule, 265-269, 288.
division fences, 191, 269-274, 288.
sufficiency of fence, 274-276.
fencing against animals on a highway, 280, etc.
want of fence as affecting the contributory negligence of the owner of
animals, 607, etc.

FERZ NATURE
See also WILD ANIMALS.
meaning of, I, 9, 16, 22, 31, 34, 36, 37, 39.

FEROCIOUS ANIMALS
See Vicious ANIMALS.

FERRETS
not the subjects of larceny, 8, 36, 37.

FISH
property in, 4, 28-30.
as the subjects of larceny, 15, 28, 37.
sale of fish hereafter to be caught, 70.
fish are “game,” 562.
oysters are “fish,” 33.

INDEX. 771

The references are to the pages.

FLESH
of animals, larceny of, 5, 43.
sale of flesh for food, 82.

FLESH-MARKS
as evidence, 48.
altering brands and marks, 186.

FLORIDA
rule in, as to restraining animals, 267.
injury by railway company to animal at large, 608.
made prima facie evidence of negligence, 638.

FOOD
animals sold for, 82.
sale of unfit food for animals, 126-127.

FOXES
property in, 5.
not the subjects of larceny, 8, 37.
trespass in following, 121, 573.
are ‘animals’ within the meaning of statute against cruelty, 528.

FOX-HUNTING

whether a form of cruelty, 538.

FRAUDS, STATUTE OF
See STaTUTE OF FRauDs.

FRIGHTENING ANIMALS
See also the NAMES OF STATES.
action for, 119, 125, 192, etc., 572.
liability of railway companies for, 597-607.
injuries resulting from accidental fright and a defect in the highway,
192-214.
liability where fright is caused by the defect, 214-220.
character of objects in a highway causing fright, 229-240.
evidence of the fright of other animals admissible, 239, 256, 605.
contributory negligence, 246, etc.
evidence; damages, 254, etc.

GAME
See also GAMB Laws; WILD ANIMALS.

property in, 10-15, 557.
GAME LAWS
See also the NAMEs or STATES.
power to enact, 557.
statutes making exportation from State unlawful, 558.
forbidding internal commerce, 559.

772 INDEX.

The references are to the pages.

GAME LAWS—(Continued.)
statutes requiring a license, 561.
capture, sale or possession in the close season, 36 n, 562-568.
right to shoot in private lands; transfer and reservation thereof, 568-

575-
trespassing in pursuit of game, 573-574.
GATES
See Fences; RatLway COMPANIES.
GEESE

property in, 39.

wild geese as the subjects of larceny, 37, 30.
killing trespassing geese, 135.

killing minks pursuing geese, 134.

“GELDING”
meaning of, in an indictment for larceny, 179.
GEORGIA
liability in, for the fright of an animal on a defective highway, 207,
223.

rule in, as to restraining animals, 259.
injury made prima facie evidence of negligence, 639.

HAIR
property in, 43.

HARES
property in, 4, 10.
as the subjects of larceny, 37.

HAWKS
property in, 4, 6.
as the subjects of larceny, 9, 10, 15, 37.

HEN
See also Cui1cKEeNns; Cocx.
killing trespassing hens, 135.
when keeping is a nuisance, 360.

HERIOT
beast due by heriot custom may be seized without the manor, 4 n.

HIGHWAYS
See also FENCES; FRIGHTENING ANIMALS and the NaMEs or STATES.
injuries on a highway from other causes than fright, 240-246.
contributory negligence, 246-254.
evidence; damages, 254-257.
injuries by animals straying from the highway, 279-284.
pasturing animals in the highway, 206, 3o1.

INDEX. 773

The references are to the pages.

HIGHWAYS—(Continued.)
distraining animals in the highway, 304.
damage done in highways by passing animals, 338.

HIRING
See BAILMEMT.

HOG
See also Pic.
meaning of “hog” in an indictment for larceny, 182-183.
one who converts hogs into bacon, etc., liable to taxation as a ‘‘manu-
facturer,”’ 56.
killing trespassing hogs, 135.
when keeping is a ntlisance, 356-358.

HONEY
See BEEs.

HORSES
See also BAILMENT; FRIGHTENING ANIMALS; TRESPASSING ANIMALS;
WARRANTY.

liability for using and injuring, 121, 420, 424, etc.

killing a trespassing horse, 135.

accidentally shooting a horse, 125.

distraining; unlawfully detaining, 188.

injuries to, when unattended, 252.

injury by an unattended horse, 288, 323-328.
by a runaway horse, 323, etc., 328-338.
by the kick of a horse on the highway, 287, 339, 380, 405.
by a vicious horse, 375, 385, 404.

when a horse is “at large,’’ 291, etc.

meaning of “horse” in an indictment for larceny, 179.
in an exemption law, 188.

whether horses are “plant,” 376.

relative rights of horse and hicycle, 234, 248.

HUSBAND AND WIFE
doctrine of scienter with regard to, 403.
liability as between, 409.

ILLINOIS
taxation of cattle in, 52.
liability in, for the fright of an animal on a defective highway, 208, 223.
rule in, as to restraining animals, 250.
possession of game in, 564.
injury by railway company to animal at large, 608.
rule in, as to actual contact, 583.
as to private farm crossings, 671.
fencing at station grounds, 685.

774 INDEX.

The references are to the pages.

IMPOUNDING
nature of a pound, 310.
the right to impound, 312-314.
the manner of impounding, 314-318.
rescue, 318.
tender of amends; return of animals, 306, 319.
damages, 320.
sale, 321-323.

INCREASE
of wild animals, property in, 15.
of domestic animals, property in, 43-47.
sale of increase, 46.
mortgage of increase, 105.
pledge of increase, 47.

INDIAN RESERVATION
taxation of cattle on, 53.
driving animals on; effect of statute, 289.

INDIAN TERRITORY

rule in, as to restraining animals, 267.

injury by railway company to animal at large, 609.
INDIANA

larceny of dogs in, 62, 64.

liability in, for the fright of an animal on a defective highway, 207,

223.

rule in, as to restraining animals, 260.

injury by railway company to animal at large, 600.

rule in, as to actual contact, 581.

injury made prima facie evidence of negligence, 639.

rule as to owner of land adjoining railway, 667.

fencing at private crossings, 670, 674 n.

what company liable for failure to fence, 688.
INDICTMENT

See CruELty; Estray; Larceny; Maticious MIscHIEF.

INFANCY
a defence to an action on a warranty, 80.

INJURING AND KILLING ANIMALS
See also CRUELTY; FRIGHTENING ANIMALS; H1iGHways; MALIcIous
MiscuiEF; RatLway Companies, and the NAMES OF STATES.
right of owner to recover for, 119-166.
general liability, 119.
accident, mistake or negligence, 120.
proximate cause, 121-127.

INDEX. 775

The references are to the pages.

INJURING AND KILLING ANIMALS—(Continued.)
injury through insufficient fence or open gate, 122, 148, etc., 289, 652,
etc.
injury by falling into excavations, 122, 150-152.
by sale of unfit food, 126.
killing dogs attacking persons or animals, 127-132.
other attacking animals, 132-134.
wild vermin, 134.
injuries inflicted on trespassing animals, 135-141.
by traps, spring-guns, poison, etc., 136-138.
notice to owner of trespassing animal, 138.
injuries in driving away trespassing animals, 139.
killing unlicensed and dangerous animals, 141-147, 541.
accidental injuries to animals trespassing or running at large, 147-153.
injuries from barbed-wire fences, 122, 153-158, 657.
insurance on animals, 158-163.
measure of damages; evidence of value, 163-166.

INNKEEPER
See also BAILMENT.
liability for animals of guests, 453-459.
injury by dog living in hotel, 406.

INSURANCE
on live-stock, 158-163.
negligence of insurer, 159.
notice to company, 159.
situs of insured stock, 160.

INTEREST
on damages in actions against railway companies, 646, 608.

IOWA
larceny of dogs in, 61 n.
rule in, as to sheep-killing dogs, 130.
payment of bounties for killing wild animals, 146.
liability in, for the fright of an animal on a defective highway, 207.
rule in, as to restraining animals, 267.
injury by railway company to animal at large, 610.
rule in, as to actual contact, 583.
injury made prima facie evidence of negligence, 639.
what company liable for failure to fence, 687.

JURISDICTION
in larceny, 175.
in trespass, 286.
in actions against railway companies, 631, 686.

776 INDEX.

The references are to the pages.

KANSAS
larceny of dogs in, 63.
liability in, for the fright of an animal on a defective highway, 209,
223.
rule in, as to restraining animals, 261.
injury by railway company to animal at large, 611.
rule in, as to actual contact, 584.
as to owner of land adjoining railway, 667.
suing company after discharge of receiver, 688.

KEEPER
of animal, who is, 405, etc., 440.

KENTUCKY
taxation of dogs in, 64.
liability in, for the fright of an animal on a defective highway, 209.
rule in, as to restraining animals, 267.
injury made prima facie evidence of negligence, 639.

KILLING ANIMALS
See INJURING AND KILLING ANIMALS.

LARCENY
See also REmMovaL; the NAaMEs oF ANIMALS, and the Names OF
STATES.
of wild animals, 2, 5, 8-10, II-14, 15, 37.
of domestic animals, 43.
of dogs, 57, 59-63.
of milk, wool, eggs, etc., 16, 43, 179.
the felonious intent, 167-171.
the taking, 171-173.
asportation, killing and removal, 173-176.
ownership; want of consent, 176-178.
description in the indictment, 10, 179-184.
meaning of horse, mare, gelding, cattle, sheep, hog, deer, 179-183.
living and dead animals, 183.
evidence, 184.
brands as evidence of ownership, 47-50.
larceny as bailee, 437.

LICENSE
of dogs, 64, etc.
killing an unlicensed dog, 141, 541.

LIEN
priority of the mortgage lien, 109-113.
on trespassing stock, 306, 307.
of agistors and trainers, 430-444.
of a farrier, 442 n.

INDEX. 777

The references are to the pages.

LIEN—(Continued.)
of the owner of a stallion, 445.
of livery-stable keepers, 449-453.
of innkeepers, 458.
how liens are lost, 113, 443, 451, 450.

LINNETS
are “domestic animals” within the meaning of statute against cruelty,
526.

LIONS
See also MENAGERIE.
not “domestic animals” within the meaning of statute against cruelty,
527.
the right to kill an escaped lion, 147.
LIVERY-STABLE KEEPER
See also BAILMENT.
rights and liabilities of, 446-449.

lien of, 449-453.
priority of mortgage lien, 109.

LIVE-STOCK EXCHANGE
rule restricting recognition of traders, 75.

LIZARDS
not “domestic animals” within the meaning of statute against cruelty,
527.
LOAN
See BAILMENT.

LOST ANIMALS
See also Estrays.
liability of the finder of, 121.

MAINE
distress in, 302.
possession of game in, 566.
rule as to owner of land adjoining railway, 667.
injuring a dog in, 60.
rule in, as to restraining animals, 261.
liability in, for the fright of an animal on a defective highway, 195, 218.
notice of injuries, 243 n.

MALICIOUS MISCHIEF
See also CRUELTY.
whether indictable at common law, 545-547.
forms of, 548-552.
maiming, wounding, disfiguring, 550.
proof of malice, 552-555.

778 INDEX.

The references are to the pages.

MALICIOUS MISCHIEF—(Continued.)
indictment, 555.
verdict, 556.

MANDAMUS
to compel to pay the proceeds of a sale of estrays, 118.

“MARE”
meaning of, in a statute, 179.

MARKS
See Branps; FLEesH-Marks.

MARRIED WOMEN
property of, in the increase of animals, 44.

MARTINS
not the subjects of larceny, 37.

MARYLAND
liability in, for the fright of an animal on a defective highway, 209.
rule in, as to restraining animals, 262.
wager on horse-race in, 366.
possession of game in, 5606.
injury by railway company to animal at large, 612.
made prima facie evidence of negligence, 639, 640.

MASSACHUSETTS
taxation of horses in, 53.
liability in, for the fright of an animal on a defective highway, 193,
214, 233.
rule in, as to restraining animals, 262.
possession of game in, 565, 566.
injury by railway company to animal at large, 612.
rule as to owner of land adjoining railway, 665.

MASTER AND SERVANT

unlawful taking of game by a servant, 13, 14.

warranty by a servant, 84.

larceny by a servant, 160.

liability for the fright of an animal by a servant’s act, 237, 239.
for an injury to an animal through a servant’s act, 121, 130, 244,

246.

for the contributory negligence of a servant, 248.
of a bailee for his servant's negligence, 428, 436.
of a livery-stable keeper for his driver’s negligence, 448.
for the negligent driving of a servant, 331, 338.
for an injury by an animal in charge of a servant, 281, 412.
for an injury by a servant’s animal, 407.

Scienter of a servant, 399.

INDEX. 779

The references are to the pages.

MEASURE OF DAMAGES
See DamacEs.

MENAGERIE
where taxable, 56.
property in animals escaping from, 2-4
right to kill escaped animals, 147.
contract as to the carriage of, 461.
liability for the fright of animals caused by, 237.

MICHIGAN

taxation of dogs in, 64.

liability in, for the fright of an animal on a defective highway, 210,

217.
rule in, as to restraining animals, 262.
as to the carriage of animals, 462.

possession of game in, 565.

injury by railway company to animal at large, 612.
MILK

larceny of, 43.

sale of, 70, 341 n.

MINNESOTA
priority of liens in, 111.
liability in, for the fright of an animal on a defective highway, 210.
rule in, as to restraining animals, 262.
possession of game in, 565.
rule in, as to lookout on train, 587.
injury by railway company to animal at large, 613.
rule as to owner of land adjoining railway, 666.
open crossings in, 670.

MISSISSIPPI
property in dogs in, 60 n.
rule in, as to restraining animals, 267.
liability in, for the fright of an animal on a defective highway, 224.
injury by railway company to animal at large, 613.
rule in, as to actual contact, 584.
injury made prima facie evidence of negligence, 630.

MISSOURI
sheep-killing dogs in, 130.
liability in, for the fright of an animal on a defective highway, 211.
rule in, as to restraining animals, 267.
injury by railway company to animal at large, 614.
rule in, as to actual contact, 582.
injury made prima facie evidence of negligence, 639.
rule as to owner of land adjoining railway, 666.

780 INDEX.

The references are to the pages.

MOCKING-BIRDS
property in, 3.
as the subjects of larceny, 37.

MONKEYS
property in, 3, 36.
not the subjects of larceny, 37.

MONTANA
rule in, as to restraining animals, 267.
injury by railway company to animal at large, 615.

MORTGAGE
of animals, 101-113.
description in, I0I-104.
bona fide purchaser takes subject to, 104.
action by mortgagee for negligence, 104.
of the increase of animals, 105-100.
priority of the mortgage lien, 109-113.
recovery for stabling and service of minor, I10 n.
where lien not transferred to purchase price, 113.

MUNICIPAL CORPORATIONS
See AGENCY; FRIGHTENING ANIMALS; HIGHWAYS.

MUSK-CATS
property in, 306.

NEBRASKA
rule in, as to restraining animals, 267.
injury by railway company to animal at large, 615.
rule in, as to actual contact, 584.

NEGLIGENCE
See CarrieRS; CONTRIBUTORY NEGLIGENCE; Docs; FENCES;
FRIGHTENING ANIMALS; Horses; INJURING AND KILLING ANI-
MALS; MASTER AND SERVANT; PROXIMATE CAUSE; RAILWway Com-
PANIES; TRESPASSING ANIMALS; Vicious ANIMALS.

NEVADA
taxation of cattle in, 51.
rule in, as to restraining animals, 267.
as to owner of land adjoining railway, 667.

NEW HAMPSHIRE
liability in, for the fright of an animal on a defective highway, 203,
224.
rule in, as to restraining animals, 262.
injury made prima facie evidence of negligence, 630.
rule as to owner of land adjoining railway, 667.

INDEX. 781

The references are to the pages.

NEW JERSEY
rule in, as to restraining animals, 262.
wager on horse-race in, 367.
injury by railway company to animal at large, 615.

NEW YORK
larceny of dogs in, so, 61.
priority of liens in, 111.
liability in, for the fright of an animal on a defective highway, 206,
221, 233.
rule in, as to restraining animals, 262.
wager on horse-race in, 365.
possession of game in, 563.
injury by railway company to animal at large, 615.
rule in, as to actual contact, 581.
as to owner of land adjoining railway, 665.
what company liable for failure to fence, 687.

NORTH CAROLINA
sheep-killing dogs in, 130.
liability in, for the fright of an animal on a defective highway, 211.
rule in, as to restraining animals, 267.
wager on horse-race in, 366.
injury by railway company to animal at large, 616.
made prima facie evidence of negligence, 639, 640.

NORTH DAKOTA
rule in, as to restraining animals, 262.
injury by railway company to animal at large, 616.

NOTICE
of traps, spring-guns, etc., 136.
that trespassing animals will be shot, 138.
sold, 308.
of sale of an impounded animal, 322.
of an insured animal’s disorder, 159.
by the owner of a vicious animal, 385.
of a claim against a carrier, 508-511.
against a railway company, 629.
of a defect in a fence or cattle-guard, 658, 672, 679.

NUISANCES
planting oyster shells, 31.
dangerous animals, 141.
diseased animals, 351.
dead animals, 352, 353, 355-
slaughter-houses, 352, 354.
noise of calves and hogs, 355.

782 INDEX.

The references are to the pages.

NUISANCES—(Continued.)
noisy dogs, 360.
cocks and hens, 360.
stock-yards and pens, 355.
stables, piggeries, 356-358.
hitching-posts, 359.
stallion kept for service, 359.
bees, 359.
swine running at large, 299.
manufacture of fertilizer, 355.
duty to abate nuisance of animals running at large in the streets, 301 n.

OCCUPATION
title by, 2, 16.

OFFSPRING
See INCREASE.

OHIO
larceny of dogs in, 62.
rule in, as to restraining animals, 262.
possession of gatne in, 565.
injury by railway company to animal at large, 616.
rule as to owner of land adjoining railway, 667.
fencing at private crossings, 670.

OKLAHOMA
taxation of cattle in, 52.
rule as to owner of land adjoining railway, 667.

ONTARIO
See CANADA.

OREGON 5
rule in, as to restraining animals, 263.
possession of game in, 566.
injury by railway company to animal at large, 617.
rule in, as to actual contact, 584.

OTTERS
as the subjects of larceny, 10, 36.
OWNER
of animal, who is, 176, 405, etc.
Ox
in the ironmonger’s shop, case of the, 281-284.
OYSTERS

property in, 30-33.
as the subjects of larceny, 31, 37.

INDEX. 783

The references are to the pages.

OYSTERS—(Continued.)
as a nuisance, 31.
are “fish,” 33.

PARROTS
property in, 3, 38.
not the subjects of larceny, 8, 37.
not “domestic animals” within the meaning of statute against cruelty,
38, 527, 533.

PARTITION FENCES
See FENCcEs.

PARTNERSHIP

in animals, 34 n, 43.

PARTRIDGES
property in, 4.
as the subjects of larceny, II, 23, 37.

PEA-FOWL
as the subjects of larceny, 39.

PENNSYLVANIA
larceny of dogs in, 61, 62 n.
liability in, for the fright of an animal on a defective highway, 195,
220.
rule in, as to restraining animals, 263.
possession of game in, 565.
injury by railway company to animal at large, 617.

PHEASANTS
property in, 4.
as the subjects of larceny, 23, 37.

PIG
See also Hoc.
meaning of “pig” in an indictment for larceny, 182-183.
when keeping is a nuisance, 356-358.
swine running at large, when a nuisance, 299.

PIGEONS
property in, 7, 20, 22.
as the subjects of larceny, 15, 20, 37.
action for killing, 120, 133, 135 n. '
whether pigeon-shooting is a form of cruelty, 537.

PLEDGE

covers the increase of animals, 47.

784 INDEX.

The references are to the pages.

POISON
liability for selling a poisonous wash, 126.
scattering poison for trespassing animals, 137.
the accidental poisoning of animals, 148, 149.
poisoning is “cruelty,” 533.
malicious mischief, 554.

POLECATS
not the subjects of larceny, 37.

POUND
See IMPOUNDING.

PRIVATE ROAD
See also RatLway COMPANIES.
liability for injury to animal on, 245.

PROPERTY
See Domestic ANIMALS; WILD ANIMALS; WoRDS AND PHRASES.

PROXIMATE CAUSE
in actions for injuring and killing animals, 121-127.
for injuries on highways, 192, etc.
by unattended or runaway horses, 325, 327n, 332, 334, 336.
against a railway company for negligence, 577.
for the fright of an animal, 606.

PUBLIC LANDS OF THE UNITED STATES

rule in, as to restraining animals, 268.

PURSUIT
See also GAME Laws.
of wild animals, 2, 5-6, 10, II,.19, 20.

QUARANTINE
may be established by a State, 344.
payment of expenses of, 352.

QUEBEC
See CANADA.

RABBITS

See also Contes; GAME Laws.

property in, 4.

as the subjects of larceny, 12, 14.

damage caused by, 571, 572 n.

not “domestic animals” within the meaning of statute against cruelty,
527.

not “game” or “vermin” within the meaning of certain game laws,
572.

INDEX. 785

The references are to the pages.

RACING
See also BETTING.
liability for frightening horses by racing in the street, 234.
for injuries caused by racing horses in the street, 330.
of the owner of a race-track for collision, 120, 371.
for running away of spectator’s horse, 326, 371.
for the condition of the grounds, 371.
racing and betting, in general, 361-371.
what is a “race meeting,” 361 n.
betting on races, 361-368.
racing for a purse or prize, 364.
steeple-chase, 368.
copyright of racing news, 368.
evidence of rujes of the turf, 369.
disagreement of judges, 369.
authority of judges, 370.
actions founded on illegal races, 369.
exclusion of persons from races, 370.
taxation of grounds, 371.
lien of the trainer of a race-horse, 442.

RAILING
See FENCES.

RAILWAY COMPANIES
See also CARRIERS and the NAMES OF STATES.
action for negligence, nature of, 630.
failure to fence, nature of, 686.
bushes, duty to remove, 580.
cattle-guards, duty to construct and repair, 675-677.
sufficiency of, 677.
duty to keep snow and ice from, 678.
notice of defect in, 679.
contributory negligence as to, 679, 680.
limitation as to time, 680.
constitutionality of statutes requiring, 680.
contact, whether this must be shown, 581-585.
contributory negligence with reference to animals running at large;
rule in the different States, 607-619.
when owner tries to secure animals, 619.
owner’s knowledge of insufficiency of fence or gate, 620, 658, 671-
owner's duty to look or listen, 623.
to give notice, 624.
duties of various kinds, 624-626.
leaving animal in a dangerous place, 626.
careless driving, 627.
subjecting animals to fright, 627.
50

786 INDEX.

The references are to the pages.

RAILWAY COMPANIES—(Continued.)
contributory negligence; drunkenness no excuse, 628.
liability of owner for collision, 628.
comparative negligence, 628.
burden of showing, 620.
crossings, liability for bad condition of, 578, 672.
fences and gates at, 668, 670.
owner's duty on approaching, 623.
company’s duty as to signalling, 596.
damages for killing animals, 645, 696.
interest on, 646, 608.
double, 647, 695.
for injuring animals, 648.
remote, 649.
for injuries to crops, 687 n, 697.
exemplary, 649.
attorney’s fee, 649.
release of, 651.
constitutionality of statutes as to, 647, 649, 650, 661, 695.
dogs, liability for killing, 591-592, 640 and n.
duties of trainmen, in general, 585-597.
to passengers, 585.
as to lookout, 586.
where animal is seen, 587.
slackening speed; stopping, 588, 592.
frightening animal away, 580.
inevitable accident, 580.
nature of care required, 590.
as to rate of speed, 592.
as to signalling, 595.
See also the sub-title, “Frightening Animals.”
evidence; burden of proof of negligence, 637.
injury made prima facie proof of negligence, 638-640.
of killing by the company, 641.
what is and is not admissible, 641-643.
of the fright of other animals, 605.
of the nature and conduct of animals; witnesses, 644.
of value, 644-645.
in actions for failure to fence, 692-695.
excavations, not necessary to keep free from water and ice, 580.
fences; liability for failure to fence, 652-654, 661.
duty irrespective of negligence or contributory negligence, 654.
when liability begins, 655.
sufficiency of, 655-657. s
diligence in repairing, 657.

INDEX. 787

The references are to the pages.

RAILWAY COMPANIES—(Continued.)
fences; notice of defect in, 658, 671.
liability for openings in, 659.
point of entry of animal the test, 660, 692.
waiver by land-owner, 661.
contracts with regard to, 661-663.
to what owners company is liable, 663-668.
where fences are and are not necessary, 668-671, 681-686.
frightening animals by unnecessary noises, 597, 590.
by obstructions, 238, 598.
by failure to signal, 599.
by noises due to ordinary operation of trains, 600-602.
by street railways, 602-604.
duty where frightened animal is seen, 604.
screens; removal of carcasses, 605.
fright must be proximate cause of injury, 606.
where not an element of damage, 607.
gates at private crossings, 669-671.
sufficiency of, 671.
knowledge of insufficiency, 671.
duty to keep gates closed or in repair, 672-675.
headlight, duty to carry a, 581.
stock should be seen in time by, 592.
lookout, where necessary, 586.
negligence, liability for, in general, 577.
must be proximate cause of injury, 577.
in attracting animal to track by food, 579.
in not removing bushes, 580.
See also the sub-titles, “Crossings;” “Duties of Trainmen;” ‘“Fences;”
“Frightening Animals.”
notice of claim, 629.
of a defect in a fence or cattle-guard, 658, 672, 679.
parties, plaintiffs in an action for negligenece, 631-632.
in an action for failure to fence, 289, 290, 686.
defendants: lessees; receivers, etc., 632-635, 687-689.
passengers, duty to, paramount, 585.
pleading; averments in action for negligence, 635.
for failure to fence, 680.
duplicity, variance, etc., 636, 691.
running at large of animals as affecting owner’s recovery, 607-619.
meaning of the expression, 622.
signals; duty with regard to ringing bell and blowing whistle, 595-
597, 599, 601, 604.
speed, rules with regard to, 588, 592-595.
station grounds need not be fenced, 683-685.

788 INDEX.

The references are to the pages,

RAMS
See SHEEP.

RANGE
sale of animals running on the, 72-74.
driving animals from the, 185.
damages for removing cattle from the, Igo.
meaning of “range,” “accustomed range,” 186.

RATS
not “domestic animals” within the meaning of statute against cruelty,
528.
whether included in “dangers” or ‘perils’ of the sea, 494-495.
REMOVAL

See also LARCENY.
of animals; civil remedies; measure of damages, 187-1091.
driving animals from the range, 18s.

RHODE ISLAND
liability in, for the fright of an animal on a defective highway, 225.
rule in, as to restraining animals, 264.

ROMAN LAW
See Civit Law.

ROOKS

no action lies for disturbing, 39.

RUNAWAY HORSES
See Horses.

RUNNING AT LARGE
See RarLway CoMPANIES; TRESPASSING ANIMALS; WorDS AND
PHRASES.

SABLE
not the subject of larceny, 36.

SALE

See also WARRANTY.

of animals, 69-101.

of the produce of animals, 70

of the increase of animals, 46.

change of possession, 70-72.

of animals running on the range, 72-74.

validity of, 74, 78.

damages for failure to deliver or accept, 75-76.

on warranty, 76-101.

of animals for a special purpose, as breeding, 80-82.
for food, 82.

INDEX. 789

The references are to the pages.

SALE—(Continued.)
of an estray, 117, 118.
of trespassing animals, 308.
of impounded animals, 321-323.
of diseased animals, liability for, 340-343.

SCIENTER
rule as to, where animal is vicious, 391-404.
need not be shown in the case of trespassing animals, 286, 295.
rule as to, where animal is diseased, 348.
of husband, 335.
of servant, 390.

SCOTLAND
liability of the owner of an animal in, 380-381.
property in whales in, 23.
cock-fighting, 538.
dishorning, 540.

SEA-GULL
not a “domestic animal” within the meaning of statute against cruelty,

526.

SEA LIONS
property in, 28.

SEALS
property in, 7, 26-28.

SHEEP
meaning of “sheep” in a statute, 182.
trespass by rams, 278.
when they are “running at large,” 2094.
liability of the bailee of, 427.
slaughtering and converting are not “carrying on manufacture,” 56.

SINGING-BIRDS
not the subjects of larceny, 8, 37.

SKIN
of animals, larceny of the, 5, 43.

SLAUGHTER-HOUSE
grant of exclusive right to maintain, 352.
when a nuisance, 354.
meaning of the word, 355.

SOCIETIES FOR THE PREVENTION OF CRUELTY
See CRUELTY.

790 INDEX.

The references are to the pages.

SOUTH CAROLINA
larceny of dogs in, 61 n.
liability in, for the fright of an animal on a defective highway, 226.
rule in, as to restraining animals, 264.
injury by railway company to animal at large, 617.
rule in, as to actual contact, 582.
injury is prima facie evidence of negligence in, 640.

SOUTH DAKOTA
taxation of cattle in, 51.
injury made prima facie evidence of negligence, 640.

SPAYING
whether a form of cruelty, 540.

SQUIRRELS
as the subjects of larceny, 37.

STABLE
when a nuisance, 356, 358.

STALLION
See also BREEDING; NUISANCES; WARRANTY.
damages on the sale of a, 76.

STATION GROUNDS
See Rattway COMPANIES.

STATUTE OF FRAUDS
acceptance within the meaning of, 72.
agreement to pay for colt after weaning, 74.
as to cattle-guard, 680.

“STEER”

meaning of, in an indictment for larceny, 182.

“STOCK”

meaning of, in a statute, 656.

STREET CAR COMPANIES
See also RatLway COMPANIES.
may be enjoined from scattering salt, 244.
contributory negligence in actions against, for injuries, 253.
liability for the conduct of their horses, 333.
frightening animals, 602-604.
in case of a broken wire, 246.

STUFFED BIRDS

are movable personal chattels, 41 n.

INDEX. 791

The references are to the pages.

SUNDAY
sale of horse on, 74.
removal of frightful object on, 228.
negligently driving on, 432.
transportation of stock on, 504.
hunting on, 562.
repairing fence on, 659.

SWANS
property in, 4, 7, 23.
as the subjects of larceny, 9, 15, 23, 37.
property in cygnets, 23, 44.

SWINE
See also Hoc; Pic.
meaning of the word, 183.

TARIFF
admission of animals free of duty under the tariff acts, 56 n.

TAXATION
of domestic animals, 50-57.
situs, 50-56.
of a “manufacturer,” 56.
uniformity; ‘‘exports,” 56.
of dogs, 64-68.

TELEGRAPH COMPANIES
damages for failure to deliver a message promptly, 75 n, 127.
liability for injuries caused by a broken wire, 246, 253.

TENNESSEE
larceny of dogs in, 62.
wager on horse-race in, 366.
injury by railway company to animal at large, 618.
rule in, as to actual contact, 582.
injury made prima facie evidence of negligence, 640.
fencing at private crossings, 670.

TEXAS
taxation of cattle in, 52, 54.
dogs in, 66.
payment of bounties for killing wild animals, 146.
liability in, for the fright of an animal on a defective highway, 211,
226.
rule in, as to restraining animals, 267.
injury by railway company to animal at large, 618.
rule in, as to actual contact, 583.
construction of crossings, 670.

792 INDEX.

The references are to the pages.

TEXAS FEVER
liability for transporting cattle affected with, 344-346.
pasturing cattle that contract, 435.

THEFT
See LARCENY.

TRAINERS
of animals, lien of, 442.

TRESPASS
See also TRESPASSING ANIMALS.
when not the proper remedy, 273 n, 415, 432, 630.
election as to bringing, 306, 307.
for injury by runaway horse, 335.
whether owner liable in, for animal's acts, 375.

TRESPASSING ANIMALS
See also the NAMES OF STATES.
injuring and killing, 135-141.
driving away, 139.
accidental injuries to, 147-153.
whether wounding trespassing animal is indictable as cruelty, 535.
common-law rule as to restraining animals, 258-265.
abrogated, 265-269.
division fences, 269-274.
sufficiency of fence, 274-276.
nature and results of the trespass, 276-279.
tule as to dogs, 277.
injuries by animals straying from the highway, 279-284.
person in charge is the one liable, 284-286.
joint and several liability, 286.
scienter need not be shown, 286-288, 295, 394.
driving animals intentionally on another’s land, 288.
liability of lessee or licensee, 285, 280.
where plaintiff is tenant or employee of a railway company, 289.
who may recover, 290.
when animals are ‘running at large,’ 290-296. See also WorpDs AND
PHRASES.
pasturing animals in the highway, 296, 301.
statutes and ordinances regulating running at large, 298-301.
distress, 301-306.
other remedies, 306-300.
lien on trespassing stock, 307.
joining causes of action, 307.
recovering value of crops, 279, 308.
statutes authorizing sale without notice, 308.

INDEX. 793

The references are to the pages.

TRESPASSING ANIMALS—(Continued.)
damage done in highways by passing animals, 338.
trespass by diseased animals, 347.

‘TURKEYS
property in, 39.
wild, as the subjects of larceny, 37, 39.
not “wild animals,” 39.
killing trespassing, 135.
liability for fright of horse at, 238.

UNSOUNDNESS
See WARRANTY.

VERMONT
liability in, for the fright of an animal on a defective highway, 204,
227.
rule in, as to restraining animals, 264.
injury by railway company to animal at large, 618.
rule as to owner of land adjoining railway, 667.

‘VETERINARY SURGEON
approval of horse by, 97.
no power of court to order, Io1.
failure to send telegram to bring, 127.
provision as to, in insurance policy, 159.
testimony of, not privileged, 166.
owner’s responsibility as to employment of, 257.

‘VICIOUS ANIMALS
destroying, as public nuisances, 141, 144.
liability of owners of, 372-418.
negligence in keeping, 379-385.
liability to trespassers, 383.
notice given by the owner, 385.
contributory negligence, 385-391.
rule as to sctenter, 391-402.
evidence of scienter, 402-404.
who is liable, 405-414.
liability for the acts of another, 412.
of the owners of several animals, 413-414.
action for injuries, 414.
pleading; averments, 415.
amount of damages, 416-418.

‘VIRGINIA
wager on a horse-race in, 365.

794 INDEX.

The references are to the pages.

WAGER
See Berrinc and the NAMES OF STATES.

WARRANTY

in the sale of animals, 76-r1or.
patent defects, 76-78.
may be prospective, 78.
negligent treatment by purchaser, 79.
evidence must not relate to remote time, 70.
right of action in a conditional sale, 79.
infancy a defence, 80.
no indictment for deceitful warranty, 8o.
animals bought for a special purpose, as breeding, 80-82.

sold for food, 82-83.
by a servant or agent, 84-86.
what amounts to a, 86-88.
what does not amount to a, 88-89.
what constitutes unsoundness, 89-92.

a “vice,” 92.
allegation and proof of unsoundness, 92.
specific forms of unsoundness, 93-96.
return on breach of, 96-98.
damages on breach of, 98-101.
court has no power to order examination by veterinary surgeon, IOI..
of freedom from disease; damages, 342.
particular defects:

age, 87, 89.

badness of shape, 93.

broken wind, 96.

chest-foundered, 96 n.

cold or cough, 78, 90, 91, 94.

corns, 96 n.

crib-biting, 77, 94.

deafness, 77.

defective sight, 87, 80, 93.

fever, QI.

footrot, 76.

glanders, 92 and n.

kidney disease, 77.

lameness, 90 n, 93, 95.

laminitis, 96.

lung diseases, 96.

moon-eyed, 77.

navicular disease, 96.

nerving, 95.

one eye, 77 n, 93.

INDEX. 795

The references are to the pages.

WARRANTY—(Continued.)

particular defects—(Continued.)
ossification of cartilages, 96.
pimple, gr.
plunging, 95.
pregnacy, 95.
roaring, 94.
rot, 96.
spavin, 77, 95.
spine disease, 77.
splints, 77.
sterility, 79, 81.
stumbling, 96.
swollen leg, 78.
thick wind, 96.
tick, 96.
want of castration, 95.
whistling, 95.

particular phrases:
“all right,” 79, 80, 86, 87.
“all right, except he would sometimes shy,” 87.
“appear to be healthy and are doing well,’ 80.
“can return it,” 98.
“considered sound,” 88.
“exactly the horse you want,” 89.
“fourteen years old,” 87.
“gentle,” 87, 95 n.
“good drawer,” 95.
“good hunter,” 95.
“gray four year old colt, warranted sound,” 89.
“horse’s eyes are as good as any horse’s eyes in the world,” 89.
“T never warrant, but he is sound as far as I know,” 86.
“T will warrant,” 78.
“In foal to,” 87.
“Tn good health and condition,” 88.
‘nice lot of young, sound sheep,” 89.
“on trial,” 78 n.
“perfectly quiet and free from vice,” 86.
“perfectly sound in every respect,” 88.
“quiet to drive,” 95 n.
“served by,” 87.
“sound,” 86, 90.
“sound and free from blemish,” 78.
“sound and healthy and, with proper handling, a foal getter,” 81.
“sound and kind,” 86.

796 INDEX.

The references are to the pages.

WARRANT Y—(Continued.)
particular phrases—(Continued.)
“sound and kind in every respect,” 95.
“sound and right,” 95.
“sound and six years old,” 98 n.
“sound, straight, and all right, just such a horse as is wanted,”
86.

“stinted to,” 87.
“sure foal-getter,’” 82 n, 84 n.
“sure-footed,”’ 96.
“sure the mare is safe and kind and gentle in harness,” 89.
“true to harness,” 79.
“well broke,” 87.
“will make his mark as a foal-getter,” 88.
“with all his faults,” 77 n.

WASHINGTON
taxation of stock in, 54.
liability in, for the fright of an animal on a defective highway, 212.
rule in, as to restraining animals, 267.
injury by railway company to animal at large, 618.

WEST VIRGINIA
liability in, for the fright of an animal on a defective highway, 201.
rule in, as to restraining animals, 267.
injury by railway company to animal at large, 618.

WHALES
property in, 23-26.

WILD ANIMALS
See also Game Laws and the NaMEs oF PaRTICULAR ANIMALS.
nature of property in, I-2.
character of confinement, 4, 18, 20, 28.
escape, 2, 3, 6, 19, 24, 28.
pursuit, 2, 5-6, 10, II, 19, 20.
animus revertendi, 6-8, 22, 26, 28.
as the subjects of larceny, 2, 5, 8-10, II-14, 15, 37.
how far the right of national protection extends, 27.
property in game, I0-15, 557.
in the increase of, 15.
in particular beasts and birds, 16-40.
inheritance in, 21, 30, 35, 40.
killing dangerous wild animals, 144.
bounties for, 146.
an escaped wild animal, 146.
liability of the keeper of, 372-374, 377-370.
Scienter not necessary, 392.

INDEX. 797

The references are to the pages.

WILD ANIMALS—(Continued.)
meaning of ‘‘wild animals” or ‘‘animals fere nature,” 1, 9, 16, 22, 31,
34, 36, 37, 39.

WISCONSIN
license of dogs in, 65.
liability in, for the fright of an animal on a defective highway, 199,
227.
rule in, as to restraining animals, 265.
injury by railway company to animal at large, 619.
is prima facie evidence of negligence in, 640.
rule as to owner of land adjoining railway, 667.

WITNESS
See EVIDENCE.

WOLVES
right to kill; bounties, 144, 146.
liabilities of keepers of, 372.

WOOL
larceny of, 43.
sale of, 70.

WORDS AND PHRASES
See also WaRRANTY.
“accident or collision,” 582.
“accustomed range,” 186.
“across a country,” 368.
“agent of the corporation,” 688.
“agents, engines or cars,” 583.
“all damages so done,” 414.
“all earnings whether by premium or otherwise,” 108.
“all increase and the increase of the increase,” 108 n,
“all other exhibitions,” 371 n.
“animal,” 527, 528.
“animal of the cow kind,” 182.
“animus revertendi.” See that title.
‘apparatus for the purpose of registering bets,” 362 n.
“at large,” 142 n, 154 n, 281 n, 290-2096, 619-620, 622-623.
“baiting animals,” 539.
“bee tree,” 20.
“beef,” 182.
“break into the enclosure,” 307.
“carrying on manufacture,” 56
“cattle,” 181-182, 289, 400, 528, 640 n, 656.
“cattle stealing,’ 168 n.
“causing, etc., the movement of diseased animals,” 343 n.

798 INDEX.

The references are to the pages.

WORDS AND PHRASES—(Continued.)
“chattels,” 61, 62, 68.
“collision,” 582.
“colt holden for payment,’’ Io9g.
“contained in assured’s barn,” 160.
“contribution toward a prize,” 364.
“cow,” 182.
“cruelly,” 543.
“dangers and accidents of the seas,” 495.
“deer,” 183.
“defect,” 222 n.
“defect in the repair,” 226.
“detention,” 504.
“device,” 328.
“disfigure,” 551.
“domestic animals.’’ See that title.
“domite nature,” 1, 34, 42.
“dumb animal,” 549 n.
“eagles or song birds,” 568.
“engines or agents,” 581.
“erect and maintain pounds,” 311.
“estray,” I14.
“exports,” 56.
“farm,” 53.
“feloniously,” 555.
“fere nature.” See that title.
“fine for forfeiture,” 312 n.
“fish,” 33.
“forward,’’ 465.
“found lying about any highway,’’ 204 n.
“gambling device,” 363.
“game,” 362, 363, 562, 572.
“gelding,” 179.
“going at large.” See “at large,” supra.
“goods,” 61, 62, 68, 522.
“hog,” 182, 183.
“home,” 51.
“home-ranch,” 52.
“horse,” 179, 188.
‘implements of gaming,” 363.
“in operating such railway,” 584.
“in the neighborhood or along the line,” 343.
“in the places herein set forth and not elsewhere,” 160.
“increase and all appendages thereto,” 108.
“increase of the sheep,” 108.

”

INDEX. 799.

The references are to the pages.

WORDS AND PHRASES—(Continued.)
“injured by cars in running over,” 583.
‘Just and reasonable,” 472-474.
“keep,” 360.

“keeper,”’ 291, 405, 440.

“kept,” 53.

“land,” 533 n.

“lottery,’’ 363 n.

“maim,” 550.

“maliciously,” 555.
“manufacturer,” 56.

“mare,” 179.

“neat cattle,” 181.
“obstruction,”’ 220, 224, 225.
“occupation,” 2, 16.

“occupied lands,’’ 681.

“offense of a trifling nature,” 65 n.
“on premises,” 161.

“ordinary fences,” 275.
“ordinary stock,” 276.

“other beasts,” 550.

“other breach of the law,” 370.
“owner,” 176, 273.

“owner and keeper,” 412.
“owners or occupiers,” 663.
“passing upon a highway,” 327.
“per impotentiam,” 2, 15.

“per industriam hominis,” 2.
“perils of the sea,” 495.
“permitted to run at large,” 620.
“personal goods,” 62.
“personal property,” 509, 61-63, 591 n.
“pig,” 182-183.

“place of injury,’ 249 n.

“place used for betting,” 368 n.
“plant,” 376-377.

“products,” 46 n.

“property,” 58, 66, 68, 549.
“propter privilegium,” 2.

“race meeting,” 361 n.

“range,” 186.

“range brand,” 49.

“reckless,” 636.

“repair,” 212.

“resorting thereto,” 368.

800 INDEX.

The references are to the pages.

WORDS AND PHRASES—(Continued.)
“ridgling,” 181.
“road brand,” 49.
“running at large.” See “at large,” supra.
“same,” 565.
“sheep,” 182.
“shooting,” 556.
“shows and amusements,” 371.
“slaughter-house,” 355.
“species bull,” 299.
“specifically insured,” 162.
“sporting paper,” 368.
“stallions,” 300.
“steer,” 182.
“stock,” 306, 656.
“stray beast in a suffering condition,” 114 n.
“suddenly assaulted,” 131-132.
“suffer to be at large,’ 619-620.
“take up and use,” I7I n.
“thing of value,” 62, 68.
“turned loose,” 294 n.
“under control,” 293 n.
“unlawfully,” 544.
“unnecessarily,” 544.
“vermin,” 495, 572.
“vice,” 92.
“wild animals.” See that title.
“wilful,” 555.
“wilfully,” 185.
“wilfully and willingly,” 636.
“without a keeper,” 201.
“wound,” 551, 556.
“yearling,” 178.

WORMS
not “perils of the sea,” 495.

WYOMING
taxation of cattle in, 54.

YOUNG
See INCREASE.