646 LIABILITY IRRESPP;CTIVE OK FENCING LAWS. 



however, he does not discover the carcass until it is swollen, 

 he need not use due diligence to dispose of it in order to re- 

 cover the full value.*"* And in some jurisdictions it has been 

 held that the owner is not bound to make use of the carcass 

 and that the damages are not to be diminished by its value, 

 unless he derives a benefit therefrom or elects to appropriate 

 it to himself."" 



Where there is no market value at the particular place 

 where the animal is killed, the value at the nearest market is 

 ordinarily the measure of damages.*^" Where the animal is 

 badly wounded and the owner kills it to put it out of suffer- 

 ing, he may recover its full value.*''^ Where it escaped from 

 a car and was killed by another train, the cause of action 

 being negligence outside of the contract of transportation, it 

 was held that the plaintiff might recover the full value and 

 was not limited to the maximum amount stated in the con- 

 tract, though the contract of affreightment was admissible as 

 evidence on the question of value. *''- 



In a leading text-book on this subject it is said that, "there 

 is a divergence of view as to the right to interest on damages 



Finnigan, 21 id. 646. As to the constitutionality of a statute prohibiting 

 the mutilation of a carcass by the company, see Bannon v. State, 49 Ark. 

 167, cited in § 136, supra. 



*" Rockford, R. I. & St. L. R. Co. v. Lynch, 67 111. 149. 



*" Indianapolis, P. & C. R. Co. v. Mustard, 34 Ind. 50; Ohio & Miss. 

 R. Co. V. Hays, 35 id. 173; Burger v. St. Louis, K. & N. R. Co., 52 Mo. 

 App. 119 (reversed in 123 Mo. 679 on another ground). 



The contrary doctrine is said, in Ga. Pac. R. Co. v. Fullerton, supra, 

 "to be better sustained by reason and authority" and the Indiana cases 

 are said to be based upon a statute expressly declaring the rule therein 

 laid down. And see the Illinois and North Carolina cases cited supra. 



"° Tex. & Pac. R. Co. v. McDowell, 7 Tex. Civ. App. 341 ; St. Louis, 

 A, & T. R. Co. V Pickens, 4 Tex. App. (Civ. Cas.) 54. 



Where there is no evidence to the contrary, the court will not set aside 

 the verdict on a mere supposition that the basis of estimation was not 

 the market value: Jacksonville, T. & K. W. R. Co. v. Wellman ■>& Fla 

 344. 



" Atchison, T. & S. F. R. Co. v. Ireland, 19 Kan. 405. 



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



