ANIMALS RUNNING AT LARGE, ETC. 623 



driving the third, and the latter, being from sixty to one 

 hundred feet in front, tried to cross the track and was killed 

 by the train, it was held that it was not "in charge" of any 

 person and the plaintiff could not recover.^** 



In the following instances the animals were held not to be 

 "running at large" : where stock is in charge of a herder; ^^^ 

 where cattle, driven by their owner, escape and run on the 

 track; ^^^ where horses were attached to a sleigh on a prairie 

 with a drunken driver; ^^'^ where a bull was pastured in a 

 fenced field with the railway running through it unfenced.^^® 



Where the driver or rider of animals fails to look or listen 

 on approaching the crossing, in cases where he might have 

 done so, he will be held guilty of contributory negligence; ^®* 

 and the owner will be held responsible for the conduct of 

 his servant in this respect.^®" But the mere fact that a per- 

 son on horseback, driving cattle to a crossing, did not ride 

 forward and look out has been held not to be conclusive evi- 

 dence of negligence on his part.^^' And where the com- 

 pany's employees by the use of ordinary care could have 

 avoided injuring the animal, recovery will not be defeated by 

 the owner's negligence in failing to look out.^^^ Nor do 



=" Markham v. Gr. West. R. Co., 25 U. C. Q. B. 572. And see Cooley 

 V. Grand Trunk R. Co., 18 id. 96. 



^ Keeney v. Oreg. R. & Nav. Co., 19 Oreg. 291. 



^' Smith V. Chic, R. I. & P. R. Co., 34 la. 96- 



"" Grove v. Burlington, C. R. & N. R. Co., 75 la- 163- 



=" Gooding v. Atchison, T. & S. F. R. Co., 32 Kan. 150. 



As to the meaning of "confined in the night-time" under the Kansas 

 statute, see Kan. Pac. R. Co. v. Landis, 24 Kan. 406. 



'" Hager v. South. Pac. R. Co., 98 Cal. 309; Louisv., N. A. & C. R. Co. 

 V. Storamel, 126 Ind. 35; Schaefert v. Chic, M. & St. P. R. Co., 62 la. 

 624; Rheiner v. Chic, St. P., M. & O. R. Co., 36 Minn. 170; Kimes v. 

 St. Louis, I. M. & S. R. Co., 8s Mo. 611; Gunn v. Wis. & M. R. Co., 70 

 Wis. 203. 



"° Louisv., N. A. & C. R. Co. v. Stommel, supra. 



™TuthilI V. North. Pac R. Co., 50 Minn. 113. And see Bates v. Fre- 

 mont, E. & M. V. R. Co., 4 S. D. 394- 



"= Wooster v. Chic, M. & St. P. R. Co., 74 la. 593- 



But in Hager v. South. Pac. R. Co., supra, it was held that the owner 



