626 LIABILITY IRRESPECTIVE OP FENCING LAWS. 



a horse, in charge of a servant, became frightened at the 

 noise of cars in a freight yard, backed over a wall and was 

 killed, it was held that the owner could not recover, where 

 the servant voluntarily assumed the risk: such an assump- 

 tion of danger is not identical with contributory negligence, 

 as it may be consistent with the exercise of due care.^^^ 



Where an animal is left unfastened or unattended in a dan- 

 gerous place, the owner is guilty of contributory negli- 

 gence.^^^ But where a herder, after rounding up his sheep 

 a mile and a quarter from the railroad, after some of them 

 had lain down, went home with his dog, this was held not 

 to be such contributory negligence as would relieve a com- 

 pany from liability. ^^* So, the fact that the plaintifif had per- 

 mitted his horse to follow him on to the defendant's track 

 is not such an abandonment as will prevent recovery, where 

 the animal afterwards followed him to a safe distance on the 

 highway and was then frightened and ran back on the un- 

 fenced track.^^® On the other hand, where cattle were 

 turned on a highway, unattended except by a dog, to cross 

 two railway tracks eighty yards apart and the dog drove 

 them between the tracks to the owner's knowledge, he mak- 



"^ Miner v. Conn. Riv. R. Co., 153 Mass. 398. 



" Deville v. South. Pac. R. Co., 50 Cal. 383; Higgins v. Wilmington 

 City R. Co., I Marv. (Del.) 352; Louisville & N. R. Co. v. Eves, i Ind. 

 App. 224; Chic, K. & W. R. Co. v. Totten, i Kan. App. 558; Wein- 

 gartner v. Louisville & N. R. Co. (Ky.), 42 S. W. Rep. 839; Dolan v. 

 Newburgh, D. & C. R. Co., 120 N. Y. 571; Gray v. Second Ave. R. Co., 

 6s id. s6i; Bowman v. Troy & B. R. Co., 37 Barb. (N. Y.) 516; Edwards 

 V. Phila. & R. R. Co. (Pa.), 23 At!. Rep. 894; Olson v. Chic, M. & St. 

 P. R. Co., 81 Wis. 41; Gunn v. Wis. & M. R. Co., 70 id. 203; McCandless 

 V. Chic. & N. R. Co., 45 id. 365; Tower v. Providence & W. R. Co., 2 

 R. I. 404; Sinkling v. 111. Cent. R. Co., 10 S. D. 560. See Brady v. 

 Rensselaer & S. R. Co., i Hun (N. Y.) 378. 



See as to obstructing an electric car track. Winter v. Federal' St. & P. 

 V. Pass. R. Co., IS3 Pa. St. 26, cited in § 68, supra. 



"* McCoy V. So. Pac. R. Co. (Cal.), 26 Pac. Rep. 629. 



°" Toledo, St. L. & K. C. R. Co. v. Jackson, 5 Ind. App. 547. And see 

 Southworth v. Old Colony & N. R. Co., 105 Mass. 342. 



