horse in the pasture thus made insecure. He may recover in an action for damages to the fence, but has no right to abandon the rest of his property, and charge the railroad company with the consequences.1 One who, knowing that a severe storm on Saturday had prostrated fences, on Monday evening turned his cattle upon uninclosed lands without inquiry as to whether the railroad fences abutting thereon were uninjured was guilty of such contributory negligence as would defeat his recovery for injuries received by such cattle on the railroad track.2

§ 1413. What Kinds of Injuries to Cattle are within Statute. Where the statute gives damages where the animal is "killed or injured" by a railroad train, it seems that the injury to be recovered for must be one caused by actual contact with the locomotive or cars. In Iowa the statute gives a remedy for " stock injured or killed by reason of the want of such fence," and it is held that if the stock got upon the track through a defect in the fence, and injury or death resulted from their alarm and attempts to escape, the company is liable. The Kansas statute makes railroad companies liable for injuries to stock "by the engines or cars on such railroad, or in any other manner in operating such railroad." This is held to include injuries inflicted in removing cattle (which came upon the track through a defect in the fence) from a bridge in which they had become entangled upon the approach of a train.3

ILLUSTRATIONS.- By a gate left open in a wire fence inclosing defendant's track plaintiff's horses escaped onto the track, and, becoming frightened by a train, ran against the fence

and were injured. Held, that the leaving of the gate open was the proximate cause of the injury: Savage v. R. R. Co., 31 Minn. 419. By reason of the neglect of a railroad to properly maintain a fence, plaintiff's mule got upon the track, and put his foot into a small hole in the ground between two ties, thus breaking his leg. Held, that the railroad company could not be made responsible: Nelson v. R. R. Co., 30 Minn. 74.

§ 1414. Injuries to Railroad. The owner of cattle may be liable to an action by the railroad; as where he permits them to stray upon the track, whereby a train is thrown off, and property is damaged.'

ILLUSTRATIONS. Plaintiff's intestate was a fireman employed on a railroad, and while engaged in running a freight train, struck a steer belonging to defendant, which had strayed on the track; the engine and tender were thrown from the track, and plaintiff's intestate so injured that he died. The right of way at the place of the injury was owned in fee-simple by the railroad company, who had obtained a deed therefor from the defendant, the latter owning the land on both sides of the right of way. The railroad was unfenced. Defendant was in the habit of turning his cattle loose on his own lands, and they frequently strayed on and across the railroad track. Held, that plaintiff had no cause of action against the defendant: Sherman v. Anderson, 27 Kan. 331; 41 Am. Rep. 414.

§ 1415. Law and Fact.—The question whether or not a railroad is obliged to fence at a particular place is one of law for the court, and not for the jury; as, for example, as to what are "depot-grounds." But the following are questions of fact for the jury, viz.: Whether or not the company has securely fenced its road at a particuler place; or whether the injury occurred at a particular place, where the company is bound by law to maintain a fence; and whether or not the injury occurred in consequence of the defect.

1 Hannibal etc. R. R. Co. v. Kenney, 41 Mo. 271; Housatonic etc. R. R. Co. v. Knowles, 30 Conn. 313; Annapolis etc. R. R. Co. v. Baldwin, 60 Md. 88; 45 Am. Rep. 711.

2 Illinois etc. R. R. Co. v. Whalen, 42 Ill. 396; Chicago etc. R. R. Co. v. Engle, 76 Ill. 318; Indianapolis etc. R.

R. Co. v. Oestel, 20 Ind. 231; Toledo etc. R. R. Co. v. Cory, 39 Ind. 218.

3 Blair v. R. R. Co., 20 Wis. 254; Davis v. R. R. Co., 26 Iowa, 549.

Estes v. R. R. Co., 63 Me. 309; Mumpower v. R. R. Co., 59 Mo. 246; Toledo etc. R. R. Co. v. Cory, 39 Ind. 218.

§ 1416. Pleading. The facts upon which the statutory liability arises should be set out.' But an express averment that the injury was caused by the failure of defendant to maintain fences is not necessary; an allegation warranting that inference is sufficient. It is not essential to state that the plaintiff was not guilty of contributory negligence. Allegations of negligence are unnecessary and irrelevant where the cause of action as stated is complete under the statute: Where the declaration shows a cause of action at common law, and the evidence shows a state of facts entitling the plaintiff to recover, if at all, under the statute, he cannot recover." In order to entitle the plaintiff to recover at all, the declaration must be complete, either under the statute or at common law. In Illinois, a declaration averring that defendant failed to fence its road, and that it so carelessly ran, conducted, and directed its train that it struck and killed the plaintiff's horse, was held to be good, either as a declaration under the statute or at common law. The killing or injury of animals at different times is each a separate and distinct cause of action, which should be stated in separate paragraphs of the complaint. If the complaint indicates but one cause of action, the plaintiff will be confined in his evidence to a single cause of action.

Mo. 230; Edwards v. R. R. 66 Mo. 567.

5 Terre Haute etc. R. R. Co. v. Augustus, 21 Ill. 186; Luckie v. R. R. Co., 67 Mo. 245.

6 Calvert v. R. R. Co., 34 Mo. 242; Garner v. R. R. Co., 34 Mo. 235; Aubuchon v. R. R. Co., 52 Mo. 522; Smith v. R. R. Co., 35 N. H. 357; Cooley v. Brainard, 38 Vt. 394; Indianapolis etc. R. R. Co. v. Sparr, 15 Ind. 440.

Chicago etc. R. R. Co. v. Magee, 60 Ill. 529.

8 Jeffersonville etc. R. R. Co. v. Brevoort, 30 Ind. 325; Indianapolis etc. R. R. Co. v. Kercheval, 24 Ind. 139; Indianapolis etc. R. R. Co. v. Elliott, 20 Ind. 430.

There cannot be a recovery in the same action for the killing of a horse and an injury to the harness.1 The duty of the defendant to fence or otherwise guard its tracks must be averred by showing the facts upon which the duty arose.2 The petition must state accurately the facts upon which a recovery is asked. Thus an allegation that the fence was defective will not support evidence that a gate was left open. An allegation that the defendant failed to construct cattle-guards will not support a recovery for failing to fence. Where the provisions of the statute are subject to exceptions, these exceptions must be negatived; as that the stock was not killed within the limits of a corporate town. In actions before justices of the peace, the technical rules of pleading are not enforced, but the statement of the cause of action usually required must be sufficiently explicit to apprise the defendant of the nature of the injury, and whether it is under the statute or at common law."

5

§ 1417. Burden of Proof-Evidence of Negligence. The burden of proof that the defendant is within the provisions of the statute is on the plaintiff, except as to

Dillard v. R. R. Co., 58 Mo. 70.

2 Balt. etc. R. R. Co. v. Wilson, 31

Ohio, 555.

Schulte v. R. R. Co., 76 Mo. 324. 'Thompson on Negligence, 536; Ohio etc. R. R. Co. v. Miller, 46 Ind. Illinois etc. R. R. Co. v. McKee, 215; Toledo etc. R. R. Co. v. Reed, 23 43 Ill. 120. Ind. 101; Toledo etc. R. R. Co. v. Parker v. R. R. Co., 16 Barb. Lurch, 23 Ind. 10.

315.

5 Where they are contained in the enacting clause: Chicago etc. R. R. Co. v. Carter, 20 Ill. 390; Ohio etc. R. R. Co. v. Brown, 23 Ill. 94; Galena etc. R. R. Co. v. Sumner, 24 Ill. 631; Great Western R. R. Co. v. Bacon, 30 П. 347; 83 Am. Dec. 199; Toledo etc. R. R. Co. v. Lavery, 71 Ill. 522; Great Western R. R. Co. v. Hanks, 36 Ill. 281; Illinois etc. R. R. Co. v. Williams, 27 Ill. 48. Aliter where they are in another section: Chicago etc. R. R. Co. v. Carter, 20 Ill. 390; Toledo etc. R. R. Co. v. Lavery, 71 Ill. 522.

8

Indianapolis etc. R. R. Co. v. Means, 14 Ind. 30; Indianapolis etc. R. R. Co. v. Penry, 48 Ind. 128; Rogers v. R. R. Co., 1 Allen, 16; Toledo etc. R. R. Co. v. Logan, 71 Ill. 191; Baxter v. R. R. Co., 102 Mass. 384; Kansas etc. R. R. Co. v. Ball, 19 Kan. 535; Morrison v. R. R. Co., 32 Barb. 569; Indianapolis etc. R. R. Co. v. Stallman, 15 Ind. 205; Toledo etc. R. R. Co. v. Pence, 68 Ill. 525; Jeffersonville etc. R. R. Co. v. O'Connor, 37 Ind. 95; Ewing v. R. R. Co., 72 Ill. 25; Comstock v. R. R. Co., 32 Iowa, 376; Flint etc. R R. Co. v. Lull, 28 Mich. 510.

matters peculiarly within the defendant's knowledge.1 So the plaintiff must prove all the necessary facts. If it is a necessary allegation of the petition that the animals came upon the track at the place where the fence was defective, it must be shown in evidence that such was the fact. It is not sufficient to show that the fence on each side of the road was poor and defective. Evidence that the fence was defective on the 22d of the month is not sufficient to show that it was defective on the 20th, the date of the accident, and thereby to charge the company, without showing negligence. Where an animal is killed by a train at a public crossing, proof that the employees in charge of the train failed to ring the bell or sound the whistle, as required by the statute, is not sufficient to authorize a verdict against the company. It must be further shown by facts and circumstances that such neglect caused the injury. The failure to give the signals is negligence, but having shown that fact, it must be supplemented by testimony to show that the negligence caused the damage, and the burden of proof is upon the plaintiff to show that such negligence caused the injury.*

§ 1418. Measure of Damages. Where the stock is killed or rendered entirely valueless, the measure of damages is its value at the time of the injury. Where the animal killed or injured has a value as meat, the owner must dispose of it as such to the best advantage, and the measure of damage is then the value of the cattle as injured and their value before the injury. The owner, however, is only to be charged with the net proceeds of

Great Western R. R. Co. v. Bacon, 30 III. 347; 83 Am. Dec. 199.

2 Wabash etc. R. R. Co. v. Brown, 2 Ill. App. 516.

3 Illinois etc. R. R. Co. v. Whalen, 42 Ill. 396.

Holman v. R. R. Co., 62 Mo. 562. 5 Lapine v. R. R. Co., 20 La. Ann. 158; Indianapolis etc. R. R. Co. v.

Mustard, 34 Ind. 51; Toledo etc. R. R. Co. v. Johnston, 74 Ill. 83; Toledo etc. R. R. Co. v. Arnold, 43 Ill. 418; Madison etc. R. R. Co. v. Herod, 10 Ind. 2; Ohio etc. R. R. Co. v. Hays, 35 Ind. 173.

6 Illinois etc. R. R. Co. v. Finnigan. 21 Ill. 646.