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."^ 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.^^* 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.-'^^ 



The owner of stock has no legal right to rely on the suffi- 

 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.^'^* 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- 

 ifif'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.^^'' 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.^'* 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. 596; 

 Blyth V. Topham, Cro. Jac. 158. 



And see the cases cited in § 42, supra. 



"' Caulkins v. Mathews, 5 Kan. 191. 



"' 111. Cent. R. Co. v. Carraher, 47 111. 333. 



"' Young V. Harvey, 16 Ind. 314; Haughey v. Hart, 62 la. 96. 



"'■ McNeer v. Boone, 52 111. 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. 391. 



