616 LIABILITY IRRESPECTIVE OF FENCING LAWS. 



were trespassers, the plaintiff could not maintain an action 

 for their death even if caused by the gross negUgence of the 

 company.^^^ But under the statute the simple neghgence 

 of the owner in permitting animals to run at large in the 

 highway or to trespass will not prevent his recovery, where 

 the injury to them results from the failure of the company 

 to fence its track.^^^ It is otherwise where the owner does 

 some positive act increasing the danger, or voluntarily per- 

 mits his animals to stray on the track.^^'^ 



In North Carolina, it is held that the fact that the plaintiff 

 allowed an animal to stray and go on the track is not suffi- 

 cient negligence to bar recovery. ^^^ And it is not contrib- 

 utory negligence to put cattle in an enclosure of forty acres 

 through which a railway runs; and the fact that the stock 

 law is in force in the place makes no difference. ^^® 



In North Dakota, the fact that an animal is a trespasser 

 without the owner's fault does not relieve the company of the 

 obligation to use reasonable care to prevent injury.^*" Where 

 the plaintiff's colt, turned loose to feed on his land, was killed 

 while trying to cross the track on a private crossing built 

 by the company for the plaintiff's use in driving stock, it was 

 held not to be a trespassing animal but one lawfully on the 

 crossing.^*^ 



In Ohio, where animals are at large without the omission 



^'''' Tonawanda R. Co. v. Hunger, s Denio (N. Y.) 255. 



='° Corwin v. N. Y. & E. R. Co., 13 N. Y. 42; Munch v. N. Y. Cent. 

 R. Co., 29 Barb. (N. Y.) 647. And see Potter & Parlin Co. v. N. Y. Cent. 

 & H. R. R. Co., 22 Misc. (N. Y.) 10. But see Marsh v. N. Y. & E. R. 

 Co., 14 Barb. 364; Clark v. Syracuse & U. R. Co., 11 id. 112. 



See, also, the cases cited in § 139, infra. 



'"' Brady v. Rensselaer & S. R. Co., i Hun (N. Y.) 378, citing Corwin 

 V. N. Y. & E. R. Co., supra. 



'""' Bethea v. Raleigh & A. R. Co., 106 N. C. 279; Roberts v. Richmond 

 & D. R. Co., 88 id. 560; Farmer v. Wilmington Sz; W. R. Co., Ibid. 564. 



■^' Horner v. Williams, 100 N. C. 230. 



-*" Bostwick V. Minneapolis & P. R. Co., 2 N. D. 440. 



'■" Bishop V. Chic, M. & St. P. R. Co., 4 N. D. 536. 



