610 LIABILITY IRRESPECTIVE OF FENCING LAWS. 



to fence,^^^ unless the injury is wilful.^®* Where the owner 

 is guilty of gross negligence, as where the owner of a bhnd 

 horse turns it out on a common near the track, he cannot 

 recover, even though the company has failed to fence,^®* or 

 though the animal may lawfully run at large.^"" And where 

 the borrower of a horse rides it on the track when he is drunk, 

 the owner cannot recover, though the company should have 

 fenced : his act implies consent to the destruction of the 

 horse.^*^ Where the animal is at large without the owner's 

 fault, as where it has escaped from an enclosure, he may re- 

 cover for an injury due to the company's negligence.^**^ 



In Iowa, one unlawfully allowing an animal to run at 

 large cannot recover without showing that the company's 

 employees were not only negligent but guilty of reckless and 

 wanton misconduct. ^"^ The company is liable, however, for 

 killing animals running at large unlawfully where the accident 

 was due to its failure to fence, unless the owner's act was 

 wilful.^"* And where the right to let animals run at large ex- 



"" Lyons v. Terre Haute & I. R. Co., loi Ind. 419; Wabash, St. L. & P. 

 R. Co. V. Nice, 99 id. 152; Cine, H. & D. R. Co. v. Street, 50 id. 225; 

 Jeffersonville, M. & I. R. Co. v. Underbill, 48 id. 389; Same v. Adams, 

 43 id. 402; Indianapolis, C. & L. R. Co. v. Harter, 38 id. 557; Chic, St. 

 L. & P. R. Co. V. Nash, i Ind. App. 298. 



•"Chic, St. L. & P. R. Co. V. Nash, supra; Jeffersonville, M. & I. R. 

 Co. V. Underbill, supra; Detroit, E. R. & 111. R. Co. v. Barton, 61 Ind. 

 293- 



"• Knight V. Toledo & W. R. Co., 24 Ind. 402. 



See Hammond v. S. C. & P. R. Co., 49 la. 450. 



"» Hanna v. Terre Haute & I. R. Co., 119 Ind. 316. 



'" Welty V. Indianapolis & V. R. Co., 105 Ind. SS- 



="" Louisville, N. A. & C. R. Co. v. Ousler, 15 Ind. App. 232; Chic, St. 

 L. & P. R. Co. V. Nash, i id. 298. 



But see Chic, W. & M. R. Co. v. Stanley (Ind. App.), 27 N. E. Rep. 

 316, where a mule that had escaped was held a trespasser. 



'™ Van Horn v. Burlington, C. R. & N. R. Co., 63 la. 67, 59 id. 33. 



And see Connyers v. Sioux City & P. R. Co., 78 id. 410; McCool v. 

 Galena & C. U. R. Co., 17 id. 461. 



'-"■ Spence v. Chic. & N. R. Co., 25 la. 139; Stewart v. Same, 27 id. 

 282; Fritz V. Milwaukee & St. P. R. Co., 34 id. 337; Krebs v. Minneapolis 

 & St. L. R. Co., 64 id. 670. 



