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." ^® 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 injur)'.^^ 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.-^^ 



'V\'here 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.^® 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 Hable for the value of a gelding that fell 

 in and was killed. The court said: "Whether it [i. e., the 



^' Fales z>. Cole, 153 Mass. 322. 

 " West V. Ward, 77 la, 323. 

 " Gilman v. Noyes, 57 N. H. 627. 



"Pitzner v. Shinnick, 39 Wis. 129. And see Oeflein v. Zautcke. 92 

 id. 176. 

 " Pitzner :■. Shinnick, 41 Wis. 676. 



