ANIMALS RUNNING AT LARGE, ETC. 609 



at large was contributory negligence depended formerly on 

 whether it was the proximate cause of the injury and, if so, 

 whether the owner's negligence was slight and the company's 

 gross, comparatively; and the latter was liable for an injury 

 resulting from its failure to fence, unless it were shown that 

 the owner let his animals run at large under such circum- 

 stances that the natural and probable consequence of doing so 

 would be their going on the track and being injured.'"^ He 

 may also have been negligent in letting them loose where the 

 company is not obliged to fence. ^^^ The doctrine of com- 

 parative negligence, however, has been recently abolished.'®'' 



In Indian Territory the owners of stock are not negligent 

 in letting them run at large near a railway.'®^ 



In Indiana, there is no contributory negligence on the part 

 of the owner who turns his animals loose near a place where 

 the company should have fenced its track. ^®* It is otherwise, 

 if they are injured at a place where the company is not obliged 



"' Rockford. R. I. & St. L. R. Co. v. Irish, 72 111. 404; Ewing v. Chic. 

 & A. R. Co., Ibid. 25; Cairo & St. L. R. Co. v. Murray, 82 id. 76; Same 

 V. Woosley, 85 id. 370; Cleveland, C, C. & St. L. R. Co. v. Ahrens, 42 111. 

 App. 434; Indiana, I. & I. R. Co. v. Dooling, Ibid. 63; Wabash R. Co. 

 V. Perbex, 57 id. 62; Atchison, T. & S. F. R. Co. v. Cupello, 61 id. 432; 

 Peoria, D. & E. R. Co. v. Miller, 11 id. 375. 



The case of Peoria, P. & J. R. Co. v. Champ, 75 111. 577, holding that 

 an owner illegally letting his animals run at large cannot recover against 

 the company for an injury resulting from its failure to fence, appears to be 

 at variance with the other decisions in the State. 



'" Toledo, W. & W. R. Co. v. Barlow, 71 M. 640. And see the opinion 

 in Headen v. Rust, 39 id. 186. 



'" See Cicero & P. St. R. Co. v. Meixner, 160 111. 320. 



'" Eddy V. Evans, 58 Fed. Rep. 151. 



'"Baltimore & O. & C. R. Co. v. Evarts, 112 Ind. 533; Toledo, W. 

 & W. R. Co. V. Gary, 37 id. 172; Jeflfersonville, M. & I. R. Co. v. Ross, 

 Ibid. S4S; Bellefontaine R. Co. v. Reed, 33 id- 476; Indianapolis & Cine. 

 R. Co. V. Guard, 24 id. 222; Louisville, N. A. & C. R. Co. v. CahiU, 63 

 id. 340; Terre Haute & I. R. Co. v. Schaeflfer, S Ind. App. 86. 



In Cine, W. & M. R. Co. v. Stanley (Ind. App.), 27 N. E. Rep. 316, it 

 was held that the fact that the company should have mamtamed better 

 cattle-guards and wing fences does not render it liable. 

 39 



