620 LIABILITY IRRESPECTIVE OF FENCING LAWS. 



mission on the owner's part.^*^ Where a teamster left a 

 mule in a stable with the door open, as usual, in order that it 

 might go to water, and it escaped and was killed, it was held 

 not to be "permitted to run at large." 2«* And where cows left 

 in a highway for the purpose of milking them, with intent 

 to put them in an enclosure, afterwards stray away they are 

 not "suffered to be at large." ^^e The fact that the plaintiff 

 kept his hogs in an insecure enclosure so that they escaped 

 was held not to prevent recovery, where even a lawful fence 

 would not have prevented their going on the track.^^" And 

 the fact that an animal escaped from a car through the 

 plaintiff's negligence, ran several miles and was then killed 

 by another train, was held not to be the proximate cause of 

 the injury nor to defeat the action. ^^^ 



The mere knowledge of the owner of animals that the land 

 into which he turns them is not fenced or is insufficiently 

 fenced from the railway has been held in many cases to 

 amount to contributory negligence.^®* So, where the plain- 



93 Mich. 607; Nelson v. Great North. R. Co., 52 Minn. 276; Cox v. 

 Minneapolis, S. S. M. & A. R. Co., 41 id. 101; Pittsb., Cine. & St. L. R. 

 Co. V. Howard, 40 O. St. 6; Chic. & N. R. Co. v. Goss, 17 Wis. 428. 



Contra, North Pa. R. Co. v. Rehman, 49 Pa. St. loi, cited supra; 

 Fisher v. Farmers' Loan & Trust Co., 21 Wis. 73; Munger v. Tonawanda 

 R. Co., 4 N. Y. 349. 



™Ohio & Miss. R. Co. v. Jones, 63 111. 472; Parker v. Lake Shore & 

 M. S. R. Co., supra; Marietta & Cine. R. Co. v. Stephenson, 24 O. St. 48. 



'"Doran v. Chic, M. & St. P. R. Co., 73, la. 115. 



And the fact that the plaintiff had a horse which was in the habit of 

 opening the gate of the barn-lot and did so on the night in question and 

 let out a team which was killed, was held not to amount to such contribu- 

 tory negligence as would defeat the plaintiff's recovery: Pacific R. Co. 

 V. Brown, 14 Kan. 469. 



=■" Bulkley v. N. Y. & N. H. R. Co., 27 Conn. 479. 



^^ Leavenworth, T. & S. R. Co. v. Forbes, 37 Kan. 445. 



'"" Louisville & N. R. Co. v. Kclsey, 89 Ala. 287. 



=" Chic, St. L. & P. R. Co. V. Nash, i Ind. App. 298; Indianapolis & C. 

 R. Co. V. Wright, 13 Ind. 213; Dayton & Mich. R. Co. v. Miami Co. 

 Infirmary, 32 O. St. 566; Sandusky & C. R. Co. v. Sloan, 27 id. 341; 

 Peterson v. North. Pac. R. Co., 86 Wis. 206; Trow v. Vermont Cent. R. 

 Co., 24 Vt. 487. 



