GENERAL LIAF.ILITY l.'OK FAILURE TO FENCE. 655 



Where a fence is unnecessary or where a sufficient one has 

 been erected, negligence must, of course, be shown." The 

 absolute liability imposed by statute applies only where the 

 loss results either wholly or partly from the failure to fence; 

 and where the plaintiff, in consequence of his barn being- 

 threatened with fire, turned his horses out and they strayed 

 on the unfenced track and were killed, and it was shown that, 

 even if the company had complied with the statute, the fence 

 would have been destroyed by the fire for which it was not 

 responsible, it was held that it was not liable for the killing 

 of the horses.^ ^ 



The liability of the company for the erection of a fence be- 

 gins at the same time with the necessity of protection to the 

 land-owners, that is, when it begins to run cars over the 

 road.^^ It cannot claim exemption from building fences on 

 the ground that the road is not completed and that there was 

 a lack of reasonable time, where a train is moved over the 

 road, though it is a construction train carrying material." 



Whether the fence is sufificient in the sense of the statute 

 depends somewhat on the wording thereof. It is for the 

 jury to say whether the statute has been complied with.'* It 

 has been held that the liability for a defect in the fence ex- 

 tends to all kinds of animals that would be kept from the track 

 by an ordinary fence, without reference to the question 

 whether they are large enough to throw a train off the track 



"St. Louis, A. & T. H. R. Co. v. Linder, 39 111. 433; Indianapolis & 

 C. R. Co. V. McClure, 26 Ind. 370; New Albany & S. R. Co. v. 

 McNaniara, 11 id. 543; Louisville, E. & St. L. R. Co. v. Hart, 2 Ind. App. 

 130; Cleaveland v. Chic. & N. R. Co., 35 la. 220; Alger v. Miss. & M. R. 

 Co., 10 id. 268; Louisville & F. R. Co. v. Milton, 14 B. Mon. (Ky.) 75- 



" Cook V. Minneapolis, St. P. & S. S. M. R. Co., 98 Wis. 624. 



" Silver V. Kansas City, St. L. & C. R. Co., 78 Mo. 528; Cobb v. Kansas 

 City, F. S. & M. R. Co., 43 Mo. App. 313; Gordon v. Chic., S. F. & C. 

 R. Co., 44 id. 201. See Holt v. Melocke, 34 Low. Can. Jur. 309. 



"Glandon v. Chic, M. & St. P. R. Co., 68 la. 457; Wichita & Colo. 

 R. Co. V. Gibbs, 47 Kan. 274. 



" Parker v. Lake Shore & M. S. R. Co., 93 Mich. 607. And see Welch 

 V. Abbot, 72 Wis. 512. 



