ANIMALS RUNNING AT LARGE, ETC. 621 



tiff knew of a storm that had prostrated many fences;^®* 

 where animals were turned loose in a place where the person 

 in charge knew a forest fire had passed and he made no effort 

 to discover whether the pasture fences had been injured ;^^" 

 and where the plaintiff's tenant knew that the plaintiff's horse 

 used to pass over a cattle-guard, and yet voluntarily turned it 

 out near the crossing.^''^ It has even been held that one 

 habitually turning his horses on the company's right of way 

 could not recover for an injury to them, though the com- 

 pany was in fault in not maintaining a fence. "To habit- 

 ually turn animals loose upon a railroad track or right of 

 way is . . . something more than contributory negli- 

 gence." ^''^ But, as a general rule, where the company has 

 neglected to perform its statutory duty of erecting or main- 

 taining fences, gates, or cattle-guards, it cannot defeat the 

 defendant's action by setting up his knowledge of that fact 

 as a proof of contributory negligence on his part.^''^ Where 

 the owner of an animal knowingly let it enter a field where 

 was a gate left open for several months by the company 

 through which it passed on the track and was injured, 

 he was held not guilty of contributory negligence unless 



™ Carey v. Chic, M. & St. P. R. Co., 6i Wis. 71. 



Otherwise where the storm is subsequent to the turning in of the 

 animal: Williams v. Mo. Pac. R. Co., 74 Mo. 453- 



"" McCann v. Chic, St. P., M. & O. R. Co., 96 Wis. 664. 



'" La Flamme v. Detroit & M. R. Co., 109 Mich. 509. 



"" Fort Wayne, C. & L. R. Co. v. Woodward, 112 Ind. 118. 



™ McCoy v. Cal. Pac. R. Co., 40 Cal. 532; Macon & W. R. Co. v. 

 Baber, 42 Ga. 300; Terre Haute & I. R. Co. v. McCord, s6 111. App. 173; 

 Toledo, St. L. & K. C. R. Co. v. Burgan, 9 Ind. App. 604; Wilder v. 

 Me. Cent. R. Co., 65 Me. 332; Schubert v. Minneapolis & St. L. R. Co., 

 27 Minn. 360; Wilson v. St. L., I. M. & S. R. Co., 87 Mo. 431; Cressey 

 V. North. R. Co., 59 N. H. 564; Horn v. Atlantic & St. L. R. Co., 35 id- 

 169; Cleveland, C, C. & I. R. Co. v. Scudder, 40 O. St. 173; Gu f, 

 C & S F R Co. z/. Cash, 8 Tex. Civ. App. 569; Congdon v. Cent. Vt. 

 R. Co., 56 Vt. 390; Mead v. Burlington & L. R. Co., 52 id. 278; Dunsford 

 V. Mich. C. R. Co., 20 Ont. App. 577- , <> c p w 



That the question is for the jury, see Johnson v. Chic, M. & bt. Jr". k. 

 Co., 29 Minn. 425; Evans v. St. Paul & S. C. R. Co., 30 id. 489- 



