ANIMALS RUNNING AT LARGE, ETC. 615 



suit like this must be contributive — i. e., the direct and proxi- 

 mate cause of the injury of which plaintiff complains. It 

 will not do to say that the act of permitting plaintiff's cow 

 to escape and run at large was negligence directly con- 

 tributing to the injury merely because if she had been kept 

 in the enclosure she would not have got upon the crossing, 

 for the same kind of logic would prove the plaintiff guilty 

 of negligence by the simple act of owning the cow. In a 

 legal sense it must be the direct and proximate, and not the 

 remote, cause of the injury; or, in other words, it must have 

 been near in the order of causation . . and must have 

 contributed, to some extent, directly to the injury, and must 

 have been not a mere technical or formal wrong contributing 

 either incidentally or remotely or not at all to the injury." ^^^ 



In Montana, an owner of stock is not guilty of contrib- 

 utory negligence in turning it out to graze on the public 

 domain near a railway.^^^ 



Under the Nebraska statute, the fact that the owner of 

 animals unlawfully permitted them to run at large is no de- 

 fence to an action against the company for damages re- 

 sulting from its failure to fence.^^^ 



In New Jersey it has been held that the owner of animals 

 that break out of his pasture, stray on the track and are 

 killed through the negligence of the company's employees, 

 cannot recover by reason of his contributory negligence in 

 permitting them to stray.^^* 



In New York, prior to the fencing statutes, where animals 



'" Kirkpatrick v. Mo., K. & T. R. Co., 71 Mo. App. 263, 267. See 

 Sullivan V. Hannibal & St. J. R. Co., 72 Mo. I9S- 



"^ McMaster v. Montana Un. R. Co., 12 Mont. 163. 



™ Burlington & Mo. River R. Co. v. Brinkman, 14 Neb. 70; Same v. 

 Franzen, 15 id. 365; Chic, B. & Q. R. Co. v. Sims, 17 id. 691. 



So, where he neghgently allowed them to escape: Burlington & M. R. 

 R. Co. V. Webb, 18 id. 215. 



="Case V. Cent. R. Co. of N. J., 59 N. J. L. 471; Price v. N. J. R. & 

 T. Co., 31 id. 229. And see Vandegrift v. Rediker, 22 id. 185. 



