582 LIABILITY IRRESPECTIVE OF FENCING LAWS. 



prevent a common-law action for negligence as where, under 

 certain circumstances, an animal was frightened and jumped 

 oS a trestle; ^* and where the defendant's employees, refusing 

 to wait till help could be had to remove a colt from a trestle, 

 kicked and threw it off, thereby causing its death.^'' 



In Tennessee, where the statute renders the company liable 

 for an "accident or collision," it is not necessarily liable for 

 failure to sound the whistle where the animal is frightened 

 and runs on a trestle. "The accident must be so far in the 

 nature of a collision as to be produced by the train, as, for 

 example, by steam from the engine, the shaking of the train, 

 or the rush of wind created by its rapid motion. Beyond 

 such possible cases, the two words are only different ex- 

 pressions of the same thing." ^* And in South Carolina it has 

 been held that injuries caused by the frightening of horses are 

 not caused by "collision" within the meaning of the statute.^^ 



In Missouri, under the statute giving double damages for 

 stock killed by trains, an actual collision must be proved,^* 

 though this may be done inferentially.** But this does not 

 prevent the bringing of a common-law action where there 

 was no collision.*" 



R. Co. V. Dutilap, 112 id. 93; Childers v. Louisville, N. A. & C. R. Co., 

 12 Ind. App. 686. 



■" Indianapolis, B. & W. R. Co. v. McBrown, 46 Ind. 229. 



'' Fort Wayne, C. & L, R. Co. v. O'Keefe, 4 Ind. App. 249. See the 

 comments on the act of 1885 in this case. 



"■ Holder v. Chic, St. L. & N. O. R. Co., 11 Lea (Tenn.) 176. And see 

 Nashville, C. & St. L. R. Co. v. Sadler, 91 Tenn. 508, where it was held 

 that actual contact must be shown. See, also, Sinard v. Southern R. Co., 

 101 id. 473. 



"'Kinard v. Columbia, N. & L. R. Co., 39 S. C. 514; Whilton r. Rich- 

 mond & D. R. Co., S7 Fed. Rep. 551. 



^* Foster v. St. Louis, I. M. & S. R. Co., 90 Mo. 116; Lafferty v. Hanni- 

 bal & St. J. R. Co., 44 id. 291; Seibert v. Mo., Kan. & T. R. Co., 72 id. 

 565; Lowry v. St. Louis & H. R. Co., 40 Mo. App. 554. See a comment 

 on these cases, disapproving of them, in 25 Am. L. Rev. 114. 



•" Harbeston v. Kan. City, Ft. S. & M. R. Co., 65 Mo. App. 160. 



*° Lowry v. St. Louis & H. R. Co., supra. 



As to liability under the Missouri statutes, see 11 L. R. A. 426 n. 



