618 LIABILITY IRRESPECTIVE OF FENCING LAWS. 



In Tennessee, where the statutes recognize the running out 

 of stock on the common as lawful, the fact that the owner 

 of an animal allowed it to be out of his enclosure cannot be 

 relied on by the company, either to defeat the action or in 

 mitigation of damages.^^' 



In Texas, where animals are unlawfully at large the com- 

 pany is liable only for gross negligence.^^^ Thus, when 

 mules were at large in violation of an ordinance, the com- 

 pany, in the absence of gross negligence, was held not liable 

 for their being killed by an engine running at an unlawful rate 

 of speed. ^^^ Where a fence is not required the company is 

 not liable for killing animals running at large unless the em- 

 ployees failed to use ordinary care.^^* And where animals are 

 unlawfully at large, failure to fence does not make the com- 

 pany liable unless its negHgence caused the accident. ^^^ 



In Vermont, the owner of stray cattle cannot recover 

 against the company without proof of its negligence, even 

 when it has neglected the statutory duty of fencing.^'® 



In Washington it is not contributory negligence for the 

 owners of animals to let them run at large.^^'' Nor is it in 

 West Virginia, though the owner takes the I'isk of unavoid- 

 able accidents.^^* 



'"■ Memphis & C. R. Co. v. Smith. 9 Heisk. (Tenn.) 860. 



""' Internal. & G. N. R. Co. v. Dunham, 68 Tex. 231; Same v. Cocke, 

 64 id. 151; Houston & T. C. R. Co. v. Nichols (Tex. Civ. App.), 39 S. W. 

 Rep. 954. 



'^ Mo., K. & T. R. Co. V. Russell (Tex. Civ. App.), 43 S. W. Rep. 576. 



'" Houston & T. C. R. Co. v. Jones (Tex. Civ. App.), 40 S. W. Rep. 

 745- 



'°° Evans v. Sherman, S. & S. R. Co. (Tex. Civ. App), 37 S.W. Rep. 93. 



=" Jackson v. Rutland & B. R. Co., 25 Vt. 150. 



'"Timm v. North. Pac. R. Co., 3 Wash. Ty. 299. 



But one camping for the night and leaving his horses loose in an un- 

 fenced field, without taking any steps to prevent their going on the track, 

 cannot recover, if they are killed: Dickey v. North. Pac. R. Co., 19 Wash. 

 350. 



'"'Washington v. Bait. & O. R. Co., 17 W. Va. 190; Layne v. O. River 

 R. Co., 35 id. 438; Blaine v. Chesapeake & O. R. Co., 9 id. 252; Baylor 

 V. Bait. & O. R. Co., Ibid. 270. 



