662 LIABILITY UNDER THE STATUTES. 



of care than if the contract had been kept."""* On the other 

 hand, a parol agreement between the owner and the company 

 to remove or dispense with a fence has been held not to run 

 with the land or to bind the grantee.** So it has been held 

 no defence that the party whose cattle were killed was legally 

 bound to fence under a covenant between his assignor and 

 the company.*^ And the company cannot, in any case, es- 

 cape responsibility to the person whose stock are killed by 

 setting up a contract with the adjacent land-owner or any 

 third party by which the latter agrees to erect or maintain 

 the fence.*® 



And, in general, the company czmnot divest itself of its re- 

 sponsibility to its passengers and the public at large by mak- 

 ing private contracts with the land-holders along the road by 

 which the latter separately agree to make and keep up 

 fences.*'^ 



Where the company's obligation to fence arises from con- 



" Easter v. Little Miami R. Co., 14 O. St. 48. 



"Wilder v. Me. Cent. R. Co., 65 Me. 332; St. Louis, A. & T. H. R. Co. 

 V. Todd, 36 111. 409. And see Corry v. Great Western R. Co., 7 Q. B. D. 

 322. 



"^ Shepard v. Buffalo, N. Y. & E. R. Co., 35 N. Y. 641. 



"Indianapolis, P. & C. R. Co. v. Thomas, 84 Ind. 194; Cine, H. & I. 

 R. Co. V. Ridge; 54 id. 39; Warren v. Keokuk & D. M. R. Co., 41 la. 484; 

 Neversorry v. Duluth, S. S. & A. R. Co. (Mich.), 73 N. W. Rep. 125; 

 Oilman v. European & N. A. R. Co., 60 Me. 235; Silver v. Kansas City, 

 St. L. & C. R. Co., 78 Mo. 528; Berry v. St. Louis, S. & L. R. R. Co., 65 

 id. 172; Pittsb., C. & St. L. R. Co. v. Allen, 40 O. St. 206; Gill v. Atlantic 

 & G. W. R. Co., 27 id. 240. But see Baltimore & O. R. Co. v. Wood, 

 47 O. St. 431. 



In a note on Gilman v. European & N. A. R. Co., supra, it is said: 

 "But if the animal, in fleeing from the engine, had become so infuriated 

 as to run over and kill the plaintiff or his child, it might be fairly re- 

 garded, probably, as too remote a consequence of the negligence to form 

 the basis of a recovery. And so, too, if in consequence of the loss of his 

 engagement and, by reason of such default, he had been driven into 

 bankruptcy and thus lost all his property and business, no one would 

 dream of making the defendant responsible for the loss :" 12 Am L Res 

 N. S. s6o n. 



" New Albany & S. R. Co. v. Maiden, 12 Ind. 10. 



