6M() LIABIMTY UNDER THK STATUTES. 



The burden of proof is on the defendant to show that the 

 animal was killed within the station grounds.^^* Where 

 this is shown, there can be no recovery in the absence of evi- 

 dence showing the want of ordinary care.^^^ 



143. Action; Parties; Pleading. — It was held in an Illi- 

 nois case that an action for injuries to stock caused by the 

 failure of a railroad company to maintain fences along the 

 track is transitory in its nature, whether brought under the 

 statute or at common law.^^" But under the Indiana statute 

 such an action is local and must be brought in the county in 

 which the injury occurred. ^^^ The owner of animals may, as 

 a rule, in such cases elect whether to base his action upon the 

 statute or upon common-law grounds of negligence. ^^* An 

 action based on, and claiming double damages under, the 

 fencing statutes of one State cannot be maintained in another 

 State.^^'' Where sheep, getting through a defective fence, 

 were killed by a train, the engineer of which had orders to 

 travel at a certain rate of speed per hour, it was held that the 

 remedy was in case, not in trespass.^^*" 



A railroad company is not liable to its own tenants for the 

 loss of cattle caused by its failure to fence its land.^^^ But 

 where, owing to a failure to fence, an animal gets on a track 



^ Wilder v. Chic. & W. M. R. Co., 70 Mich. 382. 



''° Internat. & G. N. R. Co. v. Dunham, 68 Tex. 231; Swearingen v. Mo., 

 K. & T. R. Co., 64 Mo. 73; Robertson v. Atlantic & P. R. Co., Ibid. 412; 

 IndianapoHs & St. L. R. Co. v. Christy, 43 Ind. 143; Cleaveland v. Chic. 

 & N. R. Co., 35 la. 220. 



^"' 111. Cent. R. Co. v. Swearingen, 33 111, 289. 



'"Terre Haute & I. R. Co, v. Pierce, 95 Ind. 496; Louisville, N. A. 

 & C. R. Co. V. Davis, 83 id. 89. The complaint should aver that the 

 animal was killed or injured in the county in which suit is brought: 

 Toledo, W. & W. R. Co, v. Milligan, 52 Ind, 505. And see Jacksonville, 

 T, & K, W. R. Co. V. Wellman, 26 Fla. 344. 



'=" Rockford, R. I. & St. L. R. Co. v. Phillips, 66 111. 548. 



'" Bettys V. Milwaukee & St. P. R. Co., 37 Wis. 323. 



™ Sharrod v. London & North-Western R. Co., 4 Exch. 580. 



'" Potter V. N. Y. Cent. & H. R. R. Co., 60 Hun (N. Y.) 313. 



