ANIMALS RUNNING AT LARGE, ETC!. 611 



ists, "the owner must be held to take the risk only of such 

 injuries as do not result from the defendant's negligence." ^*^ 

 The negligence of the owner or his allowing his stock to run 

 on his own land near an unfenced track is not the "wilful act 

 of the owner" which will prevent recovery under § 1289 of 

 the code making the company liable for failure to fence.^"® 

 In Kansas, where an animal is knowingly allowed to run 

 at large the owner cannot recover for an injury to it unless 

 the company has been guilty of gross negligence,^'''' as in 

 failing to fence its track.^"* And it has been held that where 

 an animal was unlawfully at large in the night, the owner 

 could not recover though the railway was unfenced where it 

 should have been fenced.^"* Where an animal breaks loose 

 in spite of the efiforts of the owner to confine it, and is killed 

 in an unfenced place, the owner may recover.^^" In counties 

 where no order has been made by the board of county com- 

 missioners regulating or prohibiting the running at large of 



=" Van Horn v. Burlington, C. R. & N. R. Co., 59 la. 33. 



See also Searles v. Milwaukee & St. P. R. Co., 35 id. 490; Kuhn v. 

 Chic, R. I. & P. R. Co., 42 id. 420; Whitbeck v. Dubuque & Pac. R. Co., 

 21 id. 103; Balcom v. Dubuque & S. C. R. Co., Ibid. 102; Stewart v. 

 Burlington & M. R. Co., 32 id. 561. 



=°° Inman v. C, M. & St. P. R. Co., 60 la. 459; Lee v. Minneapolis & 

 St. L. R. Co., 66 id. 131. 



""Union Pac. R. Co. v. Rollins, S Kan. 167; Kan. City, Ft. S. & G. R. 

 Co. V. McHenry, 24 id. 501. 



See the comments on the former case in Mo. Pac. R. Co. v. Wilson, 

 infra. And see Prickett v. Atchison, T. & S. F. R. Co., 33 Kan. 748, 

 where it was held that the company was liable for ordinary negligence 

 where the stock was permitted to run at large. 



""Mo. Pac. R. Co. V. Bradshaw, 33 Kan. 533; Atchison, T. & S. F. 

 R. Co. v. Riggs, 31 id. 622. 



"" Cent. Branch R. Co. v. Lea, 20 Kan. 353- So, where he places the 

 animals on the track or purposely exposes them to danger: Mo. Pac. R. 

 Co. V. Roads, 33 id. 640. 



But the owner is not guilty of culpable contributory negligence m per- 

 mitting an animal to run unattended near an unfenced track on his own 

 premises which are enclosed by a fence: Atchison, T. & S. F. R. Co. 

 V. Gabbert, 34 id. 132. And see the cases cited in the precedmg note. 



"" Kan. Pac. R. Co. v. Wiggins, 24 Kan. 588. 



