612 LIABILITY IRRESPECTIVE OF FENCING LAWS. 



animals, individuals may permit their stock to run at large 

 on the public highways, and in doing so they are not neces- 

 sarily guilty of negligence.^^* 



In Maryland, if the accident could have been avoided by 

 ordinary care on the part of the company's servants, it is no 

 defence that the plaintiff was negligent in allowing his ani- 

 mals to escape and stray at large unattended.^^^ 



In Massachusetts, a railway company is not liable for kill- 

 ing a trespassing animal unless the injury is wanton: proof 

 of mere want of ordinary care is insufficient.^'^ It is other- 

 wise where the company has failed in its duty as to fencing 

 and the injury is a result of such failure.^'* Where the com- 

 pany is not bound to fence, the due care of the owner of the 

 animal must be proved.^'^ 



In Michigan, one who turns his cattle at large in a public 

 highway near a railway crossing is guilty of contributory 

 negligence where the company has complied with the statu- 

 tory requirements as to fences, etc., and speed could not be 

 checked in time to avoid injury. "A man who permits his 

 dumb beasts, which cannot reason or appreciate danger, to 

 roam at large where it is highly probable, if not inevitable, 

 that they will run into dangerous places, ought to be judged 

 by the same rule as when he places himself in the presence 

 of danger and thereby suffers injury which his own prudence 

 might have avoided." ^'^ AVhere the company has failed to 



"' Mo. Pac. R. Co. z'. Wilson, 28 Kan. 637. 



"*' Western Md. R. Co. v. Carter, 59 Md. 306; Bait. & O. R. Co. v. 

 Mulligan, 45 id. 486; Northern Central R. Co. v. Ward, 63 id. 362. The 

 rule was formerly different: Bait. & O. R. Co. v. Lamborn, 12 Md. 257. 



'"' Maynard v. Boston & Me. R. Co., 115 Mass. 458; McDonnell v. 

 Pittsfield & N. A. R. Co., Ibid. 564. 



If the injury was the natural and probable consequence of the owner's- 

 negligence, he cannot recover: Arastein v. Gardner, 134 id. 4. 



^" Rogers v. Newburyport R. Co., i Allen (Mass.) 16. 

 But see § 139, infra, as to qualifications of this rule. 



"" Stearns v. Old Colony & F. R. R. Co., i Allen (Mass.) 493. 



""" Robinson v. Flint & P. M. R. Co., 79 Mich. 323. 



And see Niemann v. Mich. Cent. R. Co., 80 id. 197. 



