NOTICE ; ACTION ; PARTIES ; PLEADING. 635 



effect of fencing statutes in determining who is the proper 

 defendant will be discussed in the next chapter.^*^ 



A general averment of negligence is sufficient, though it 

 should appear that such negHgence was the proximate cause 

 of the injury.^®^ Nor need gross negHgence be averred.^^* 

 But where the answer alleges gross negligence in the plain- 

 tiff, the particular act or omission in which such gross neg- 

 ligence consisted should be averred.''^^ Where the statute 

 makes the fact of injury prima facie evidence of negligence, 

 an averment that the animal was injured by the defendant's 

 train sufficiently alleges negHgence. ^^^ Where the plaintiff 

 sues for an intentional and wilful injury, he cannot recover 

 on the ground that the engineer was negligent in not stop- 

 ping the train. ^^^ Under a charge of negligence, evidence 

 of failure to keep a proper lookout is admissible. ^^* But if 

 the declaration states that the injury was due to negligence 

 after seeing the animals, the plaintiff cannot recover if the 

 evidence shows the negligence was before seeing them.*^^ 

 And in a complaint for negligently and carelessly running the 

 train, evidence cannot be given of negligence in permitting 

 grass or water at or near the track.**'' So, a complaint that 

 the defendant negligently ran over a cow refers to negligence 

 in operating the train, and evidence of negligence in per- 

 mitting bushes to grow near the track so as to conceal cattle 



='' See § 143, infra. 



"' Jeffersonville R. Co. v. Martin, 10 Ind. 416; Stanton v. Louisville & 

 N. R. Co., 91 Ala. 382; Mack v. St. Louis, K. C. & N. R. Co., 77 Mo. 

 232; Berkley v. Chic, R. I. & P. R. Co, (Mo. App.), 3 West. Rep. 765: 

 Jacksonville, T. & K. W. R. Co. v. Jones, 34 Fla. 286; Hawker v. Bait. 

 & O. R. Co., IS W. Va. 628. 



'" Chic, B. & Q. R. Co. v. Carter, 20 111. 390. 



='' Jeffersonville, M. & I. R. Co. v. Dunlap, 29 Ind. 426. 



'"= St. Louis, I. M. & S. R. Co. V. Brown, 49 Ark. 253. 



"" Indiana, B. & W. R. Co. v. Overton, 117 Ind. 253. 



'" Omaha & R. V. R. Co. v. Wright, 49 Neb. 456. 



™ Hawker v. Bait. & O. R. Co., 15 W. Va. 628; Wallace v. San Antonio 

 & A. P. R. Co. (Tex. Civ. App.), 42 S. W. Rep. 865. 



"» Milburn v. Han. & St. J. R. Co., 21 Mo. App. 426. 



