CROSSINGS ; GATES. 671 



run its trains as if no such right existed, subject only to the 

 duty of looking out for cattle and avoiding injury to them, 

 if discovered.120 j„ minois, it is the duty of the company at 

 a private farm crossing to place gates and bars to keep animals 

 within the enclosure off the track.^^^ 



A gate is a part of a fence and the duty of erecting and 

 maintaining fences includes the duty of keeping gates in re- 

 pair and closed as against stock.^^^ The gate must be sufifi- 

 ■cient to keep out animals,^ ^^ Where the fastenings are in- 

 sufficient, contributory negligence in the plaintiff or his serv- 

 ant will bar his recovery .^^^ But the mere knowledge of the 

 land-owner that they were insufficient and his failure to notify 

 the company of the fact, have been held not to prevent his 

 recovering damages where his animals strayed and were killed 

 as a consequence of such insufficiency.*^^ It is otherwise 

 where the owner has changed the gate and hung it so as to 

 suit his own convenience.*^® The fact that the company 

 knew that a gate was out of repair is evidence of negli- 

 gence.*^'^ But the fact that it continued to use a fastening 

 in which there was nothing intrinsically or necessarily dan- 

 gerovis, which had been for nine years without mischievous re- 



^^ Whittier v. Chic, M. & St. P. R. Co., 26 Minn. 484. 



"' Peoria, P. & J. R. Co. v. Barton, 80 111. 72. 



'"" West V. Mo. Pac. R. Co., 26 Mo. App. 344; Estes v. Atlantic & St. 

 L. R. Co., 63 Me. 308; Mackie v. Cent. R. Co. of la., 54 la. 540; Chic. & 

 A. R. Co. V. O'Brien, 34 111. App. iSS; Wabash R. Co. v. Kime, 42 id. 

 272; Mo. Pac. R. Co. V. Hackett, 54 Kan. 316. 



In Matson v. Baird, 3 App. Cas. 1082, it was held that a railway be- 

 longing to private owners was not obliged by statute to make and main- 

 tain gates across highways. 



'""Charman v. South-Eastern R. Co., 21 Q. B. D, 524. 



'" Haigh V. London & North-Western R. Co., i F. & F. 646. 



'"• Dunsford v. Mich. Cent. R. Co., 20 Ont. App. S77; McMichael v. 

 Grand Trunk R. Co., 12 Ont. 547; Toledo, St. L. & K. C. R. Co. v. Bur- 

 gan, 9 Ind. App. 604. 



"' Chic, B. & Q. R. Co. v. Dannel, 48 HI- App. 251. 



'" Brooks V. London & North-Western R. Co., 33 W. R. 167. And 

 see Fitterling v. Mo. Pac R. Co., 79 Mo. 504. 



