which, while being properly driven along the highway, casually wander on the land of another, provided he removes them with reasonable promptitude.' But as cattle have no more than the public any right in the highway except to pass and repass, if the owner puts them there to graze, and they get into another's lot, he is liable. And if after lawfully getting into the close adjoining the highway they proceed into that of another beyond, their owner is responsible for this second trespass.3

§ 1393. Keeping Diseased Animals. - Keeping diseased animals on one's premises even if the disease is an infectious one is not per se negligence, though there

may be animals of another on adjoining premises. But where diseased animals trespass on another man's land and infect his animals, the owner of the diseased animals is liable without proof of scienter; and so where there is fraud or false representations. An action will lie to recover damages sustained by the negligence of servants having the care of cattle which they know to be suffering from an infectious disease, in allowing such cattle to intermingle with other cattle. In an action for bringing horses diseased with glanders to the farm of the plaintiff, whereby the horses and stock of plaintiff became infected

1 Hartford v. Brady, 114 Mass. 466; 19 Am. Rep. 377; Stackpole v. Healy, 16 Mass. 33; 8 Am. Dec. 121; McDonnell v. R. R. Co., 115 Mass. 564; Coal v. Crummet, 13 Me. 250.

2 Stackpole v. Healy, 16 Mass. 33; 8 Am. Dec. 121; Lyman v. Gipson, 18 Pick. 422; Pool v. Alger, 11 Gray, 489: 71 Am. Dec. 726; Avery v. Maxwell, 4 N. H. 36; Harrison v. Brown, 5 Wis. 27. Aliter where by a by-law of the town cattle are permitted to graze upon the highway: Holladay v. Marsh, 3 Wend. 142; 20 Am. Dec. 678.

3 McDonnell v. R. R. Co., 115 Mass. 564; Mills v. Stark, 4 N. H. 512; 17 Am. Dec. 444.

Fisher v. Clark, 41 Barb. 329; Mills v. R. R. Co., 2 Rob. (N. Y.) 326;

affirmed 41 N. Y. 619. Aliter by statute in Illinois: Ill. Laws 1865, p. 126, sec. 2; Herrick v. Gary, 65 IIL 101; 83 Ill. 85.

Barnum v. Vandusen, 16 Conn. 200; Noyes v. Colby, 30 N. H. 143; Eaton v. Winnie, 20 Mich. 159; 4 Am. Rep. 377. One knowing his cattle to be infected with a contagious disease, and allowing them to run at large, is liable to another injured thereby, without regard to any statute prohibiting im portation of cattle: Kemmish v. Ball, 30 Fed. Rep. 759.

Eaton v. Winnie, 20 Mich. 157; 4 Am. Rep. 377.

284.

Earp v. Faulkner, 34 L. T., N. S.,

with the same disease and died, the gravamen of the action is not deceit; but the liability of defendant arises from the fact of his taking horses known by him to be infected. with a dangerous disease into plaintiff's close.1 Under a statute giving a right of action against one willfully and knowingly driving diseased and distempered cattle, etc., defendant's knowledge of the diseased condition of his cattle must be shown.2

ILLUSTRATIONS. -The owner of diseased horses negligently allows them to gnaw through his wall into an adjoining stable, or to go to drink at a public tank, whereby other horses take the disease. Held, that he is liable to the owner of the latter: Mills v. R. R. Co., 2 Rob. (N. Y.) 326. G.'s sheep, infected with the scab, escaped into H.'s pasture through defects in G.'s part of the division fence, and caused a flock consisting of sheep of H. and sheep of H.'s father, to become infected. Held, that H. could recover of G., although H.'s sheep might have caught the infection from those of his father, if the latter's sheep had become first infected from G.'s sheep: Herrick v. Gary, 65 Ill. 101. A's sheep, being diseased, got into B's field, where his sheep were grazing, and infected them with the disease. It did not appear how they got there. A, on being told of it, used expressions indicating knowledge that his sheep were diseased. In an action against him for suffering his sheep to go at large, held, that, in the absence of negligence, proof of a scienter was necessary, and there was no sufficient evidence of it: Cooke v. Waring, 2 Hurl. & C. 332; 32 L. J. Ex. 262. By a railway accident a large number of swine were loosed. The defendant, the manager of the road, directed his servants to collect them, and put them in a safe place. They put them in the plaintiff's barn-yard, in his absence and without his leave; but on his return he did not object, but assisted in feeding them, and also in taking them away for reshipment, and rendered a bill for food, services, and damage to grass. The swine were diseased, and infected the plaintiff's swine, but neither he nor the defendant knew of the disease. Held, that the defendant, having acted within his authority, was not liable: Hawks v. Locke, 139 Mass. 205; 52 Am. Rep. 702.

§ 1394. Selling Diseased Animals.—The sale of diseased animals has been held not to be unlawful; and although the seller knew at the time that the animals were 1 Hite v. Blandford, 45 Ill. 9. 2 Bradford v. Floyd, 80 Mo. 207.

infected, and did not disclose it to the buyer, yet he is not liable for injuries occasioned by the spread of the disease among the animals of the purchaser; "for the maxim of caveat emptor applies to such a case."1 It would seem that there are decisions of authority which hold the seller to a liability in such a case; and certainly where the seller has been guilty of any fraud or misrepresentation, he is liable.3

ILLUSTRATIONS. A bought a cow of B on the assurance of the latter that he would warrant her, and that she had come off his father's farm. It proved to be a foreign cow, and a few days after the purchase, she fell ill, and died, of what proved to be the cattle-plague. Five other cows which had been in the same shed were attacked the same week, and eventually A lost them as well. The symptoms in all the cases were alike. Held, that as A was induced to buy the cow through B's misrepresentation, the latter was answerable for the consequences which ensued by her coming in contact with other cattle: Mullett v. Mason, L. R. 1 Com. P. 559; 14 Week. Rep. 898; 14 L. T., N. S., 558.

11 Thompson on Negligence, p. 207, sec. 22; citing Hill v. Balls, 2 Hurl. & N. 299. The seller does not impliedly represent that they are not, so far as he knows, infected with a contagious disease, and is not liable in an action for false representation at the suit of a person who has purchased such animals and consequently suffered loss: Ward v. Hobbs, 26 Week. Rep. 151; reversing the judgment of the

queen's bench division, 25 Week. Rep. 585; 26 L. T., N. S., 511; 46 L. J. Q. B. Div. 473; L. R. 2 Q. B. Div. 331.

2 Jeffrey v. Bigelow, 13 Wend, 518; 28 Am. Dec. 476; Hite v. Blandford, 45 Ill. 9; Penton v. Murduck, 22 L. T., N. S., 371.

3 Mullett v. Mason, L. R. 1 Com. P. 559; Fultz v. Wycoff, 25 Ind. 321. Sce post, title Contracts.

§ 1399.

§ 1400.

Evidence of negligence - Presumption - Burden of proof.
Duty to fence by statute - In general.

§ 1407.

Degree of care in maintenance of fence-Notice of defects.

§ 1395. Duty to Fence Railroad-At Common Law.There is no duty resting upon railroads to fence their tracks, in the absence of a statute requiring it to be done; but it is held that a failure to fence increases the care required of the railroad as to stock, and hence to this extent is relevant on the question of negligence.2

§ 1396. By Contract.-Where the railroad has agreed to fence its line through certain land, a failure to do so

As to injuries to animals in their carriage, see post, Title Bailments.

Vicksburg etc. R. R. Co. v. Patton, 31 Miss. 157; 66 Am. Dec. 552; Memphis etc. R. R. Co. v. Orr, 43 Miss. 279;

Kerwhacker v. R. R. Co., 3 Ohio St. 185; 62 Am. Dec. 246; Gorman v. R. R. Co., 26 Mo. 441; 72 Am. Dec. 220; Sullivan v. R. R. Co., 30 Pa. St. 234; 72 Am. Dec. 698. See ante, sec. 1391.

by which cattle get on the track and are killed will render it liable, in the absence of contributory negligence by the owner. In some states an obligation to fence the track will be implied, if in the condemnation of the right of way the award of damages was made on the understanding that the company was to fence both sides of the track. On a failure to do so, the company cannot impute negligence to the owner of cattle straying upon the roadway through the want of such fence. In other states the grant of the right of way by the plaintiff over his farm implies no obligation on his part to fence the railroad track, nor does the acceptance of the grant on the part of the railroad company.3

§ 1397. Duty as to Cattle on Track-Slackening Speed. Where by checking the speed of the train, animals on the track could escape, it is negligence on the part of the railroad servants not to do so. But the rights

passengers are superior to those of the owners of trespassing cattle, and the courts do not require the former to be endangered for the purpose of protecting the latter." The question is, whether, when the stock is discovered on

1 Fernow v. R. R. Co., 22 Iowa, 528; Joliet etc. R. R. Co. v. Jones, 20 Ill. 222; Drake v. R. R. Co., 51 Pa. St. 240.

2 Quimby v. R. R. Co., 23 Vt. 388; Trow v. R. R. Co., 24 Vt. 488; 58 Am. Dec. 191. And see In re Rensselaer R. R. Co., 4 Paige, 553.

3 Louisville etc. R. R. Co. v. Milton, 14 B. Mon. 75; 58 Am. Dec. 647; Louisville etc. R. R. Co. v. Ballard, 2 Met. (Ky.) 177; Indianapolis etc. R. R. Co. v. Brownenburg, 32 Ind. 200. See Campbell v. R. R. Co., 50 Conn. 128.

Chicago etc. R. R. Co. v. Barrie, 55 Ill. 227; Rockford etc. R. R. Co. v. Linn, 67 Ill. 110; Illinois etc. R. R. Co. v. Wren, 43 Ill. 78; Rockford etc. R. R. Co. v. Rafferty, 73 Ill. 58; Lapine v. R. R. Co., 20 La. Ann. 158; Aycock v. R. R. Co., 6 Jones, 232; Jones v. R. R. Co., 70 N. C. 626;

Page v. R. R. Co., 71 N. C. 222; Paris etc. R. R. Co. v. Mullins, 66 IIL 526; Toledo etc. R. R. Co. v. McGinnis, 71 Ill. 347; Searles v. R. R. Co., 35 Iowa, 490; Toledo etc. R. R. Co. v. Milligan, 52 Ind. 506; Reeves v. R. R. Co., 30 Pa. St. 454; 72 Am. Dec. 713; Johnson v. R. R. Co., 25 W. Va. 570; that reversing an engine is hurtful to its machinery is no excuse: East Tennessee etc. R. R. Co. v. Selcer, 7 Lea, 557.

5 Smith v. R. R. Co., 34 Iowa, 506; Louisville etc. R. R. Co. v. Ballard, 2 Met. (Ky.) 177; Darling v. R. R. Co., 121 Mass. 118; Eames v. R. R. Co., 98 Mass. 560; 96 Am. Dec. 676; Maynard v. R. R. Co., 115 Mass. 458; 15 Am. Rep. 119; McDonnell . R. R. Co., 115 Mass. 564; Central R. R. Co. v. Lawrence, 13 Ohio St. 66; 82 Am. Dec. 434.