GENERAL LIABILITY ; NEGLIGENCE, ETC. 577 



from the effect on the HabiUty of railway companies of statutes 

 compelHng 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.^ 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 obUged to fence, it must 

 use ordinary care and diligence.^ A statute making the 

 company absolutely Uable 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 



'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. 669; New Orleans & N. E. R. Co. v. Thornton, 65 Miss. 256; 

 Davidson v. Cent. la. R. Co., 75 la. 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, 17 111. 131; St. Louis, A. 

 & T. H. R. Co. V. Linder, 39 id. 433; Rockford, R. L & St. L. R. Co. 

 V. Rafferty, 73 id. 58; Pittsb., Cine. & 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 



