594 LIABILITY IRRESPECTIYE OF FENCING LAWS. 



gence per se}^'° And the fact that the train had no air- 

 brakes is not of itself sufficient to make the company liable.*'"' 

 But the failure to equip the cars with suitable brakes may 

 make the company liable for negligence in running over an 

 animal where the use of such brakes might have prevented 

 the accident.!"'^ And the failure to apply the brakes may, 

 of course, be gross neghgence.*"* Apart from statute, the 

 rate of speed is not governed by definite rules and a charge 

 which makes it the duty of an engineer on approaching a 

 crossing to diminish the speed of the train, without regard to 

 attendant circumstances, is erroneous.*"^ So, where cattle 

 were killed that had taken shelter near a trestle during the 

 night, and it did not appear that the train was running with 

 unusual speed and was not proved that when the cattle were 

 first seen the train could have been arrested in time, an instruc- 

 tion that if the train was running so that it could not be 

 stopped within half a mile, this of itself was negligence, was 

 held erroneous.**" In determining the rate of speed, such rate 

 being otherwise reasonable, the company is not bound to con- 

 sider the increased risk to cattle running at large in the vicin- 

 ity and lessen their speed accordingly.*** It is not sufficient to 

 show that the train was running at an unlawful rate of speed : 

 the company is not liable unless the injury resulted there- 



"^ Windsor v. Hannibal & St. J. R. Co., 45 Mo. App. 123. 



"" Grundy v. Louisville & N. R. Co. (Ky.), 2 S. W. Rep. 899. 



"' Forbes v. Atlantic & N. C. R. Co., 76 N. C. 454. 



"* Toledo, W. & W. R. Co. v. McGinnis, 71 111. 346, and cases cited 

 supra. 



'" E. Tenn., V. & G. R. Co. v. Deaver, 79 Ala. 216. 



That no rate of speed is negligence per se, see Windsor v. Hannibal & 

 St. J. R. Co., supra; Wallace v. St. Louis, L M. & S. R. Co., 74 Mo. 594; 

 Young V. Hannibal & St. J. R. Co., 79 id. 336. 



That the rate of speed is not ordinarily to be decreased on approaching 

 crossings, see Connyers v. Sioux City & P. R. Co., 78 la. 410; Robinson v. 

 Flint & P. M. R. Co., 79 Mich. 323; Zeigler v. Northeastern R. Co., 7 

 S. C. 402; Bunnell v. Rio Grande W. R. Co., 13 Utah 314. 



"° Doggett V. Richmond & D. R. Co., 81 N. C. 459. 



"' Central Ohio R. Co. v. Lawrence, 13 O. St. 66. 



