LIABILITY I'OK FPaGHTENING ANIMALS. 607 



orchard through a defective fence and then on the track 

 and were killed, it was held that the damage was not too 

 remote and that the imperfect state of the fence was no 

 answer.""^^ 



In awarding compensation for lands condemned for the 

 right of way of a railroad, the frightening of stock by trains 

 is speculative and not a proper element to be taken into con- 

 sideration.^*^ 



134. Animals Running at Large; Contributory Negligence 



Whether the owner of an animal allowed to run at large may 

 recover for an injury done to it by a train depends on several 

 considerations. The common-law rule requiring the owner 

 to restrain his animals may or may not be in force. There 

 may be a law requiring the company to fence or signal and 

 the injury may be the result of its failure to do so. And, 

 finally, the degree of negligence of the company's employees 

 may be an important factor in the question. The decisions, 

 therefore, vary in the different jurisdictions and no attempt 

 will be made to lay down a general rule applicable to all cases. 

 The obligation of the company to fence its right of way, 

 which will be discussed fully in the next chapter, will be here 

 treated of only incidentally in so far as it is necessarily in- 

 volved in the decision of the principal question. 



The common-law rule with regard to restraining animals 

 is discussed in an earlier portion of this work.^*^ 



In Alabama, the owner has a right to pasture his animals 

 or let them run at large near a railway and the fact that he 

 does so is not contributory negligence which will bar his 

 recovery for an injury received by them in consequence.^** 



"" Sneesby v. Lancashire & Y. R. Co., i Q. B. D. 42. 



"' St, Louis, K. & S. R. Co. v. Hammers, 51 Kan. 127. 



"' See Title IV, Chapter I, supra. 



'" Birmingham Mineral R. Co. v. Harris, 98 Ala. 326; Louisville & N. 

 R. Co. V. Cochran, lOS id. 3S4; Ala. Gt. South. R. Co. v. McAlpine, 71 id. 

 545; Same v. Powers, 73 id. 244. 



