ACTION ; PARTIES ; PLEADING. 689 



A company is liable only for injuries to animals caused by 

 trains on its own line owing to a failure to fence the track 

 and not for injuries caused by the trains on a parallel and con- 

 tiguous line.^*® But a company owning the central tracks 

 among a number of parallel ones is liable for the death of an 

 animal by one of its trains owing to a failure to fence the ex- 

 terior tracks.''*'' 



The plaintiff in an action under the statute should allege 

 that the road was not fenced at the place where the animals 

 entered, and no other negligence need be averred. ^''^ But 

 the failure to fence should appear from the statement, by im- 

 plication at least, to have been the cause of the killing.^*' An 

 averment that the animal was killed at an unfenced place is 

 not sufficient, the place of entry being the decisive test.^'*^ 

 But this defect may be cured by the verdict.*''^ 



Some of the cases go further and hold that the plaintiff 

 must also negative any statutory exceptions and allege that 

 the animals entered at a place where the company could have 



'" Fouchon V. Ontario & Quebec R. Co.. ii Leg News (Can.) 74;. 

 iDaoust V. Can. Pac. R. Co., 15 id. 382. 



"' Kelver v. N. Y., C. & St. L. R. Co., 126 N. Y. 365. 



See Gallagher v. N. Y. & N. E. R. Co., 57 Conn. 442, cited in § 142.. 

 supra. 



'"Terre Haute, A. & St. L. R. Co. v. Augustus, 21 111. 186; Bait., P_ 

 & C. R. Co. V. Anderson, 58 Ind. 413; Toledo, W. & W. R. Co. v. ^<tsNn, 

 34 id. 298; Kan. Pac. R. Co. v. Taylor, 17 Kan. 566; Bigelow v. North 

 Missouri R. Co., 48 Mo. 510; Gulf, C. & S. F. R. Co. v. Washington, 

 49 Fed. Rep. 347; i Rap. & Mack Dig. of Ry. Law 257. See Indian- 

 apolis & V. R. Co. V. Sims, 92 Ind. 496. 



Where there is no statute requiring railroad companies to fence, the 

 omission to do so is not prima facie evidence of negligence : Stevenson v. 

 N. O. Pac. R. Co., 35 La. Ann. 498- 



""Dryden v. Smith, 79 Mo. 525; Bowen v. Hannibal & St. J. R. Co, 75 

 id. 426; Toledo, P. & W. R. Co. v. Darst, 52 HI. 89. And see, as to a 

 cattle-guard, Riley v. Chic, M. & St. P. R. Co., 104 la. 235. 



"^ Louisville, N. A. & C. R. Co. v. Quade, 91 Ind. 295. 



But see Jeflfersonville, M. & I. R. Co. v. Chenoweth, 30 id. 366. And 

 see the cases cited in § 144, infra, as to the presumption that the place 

 of killing was the place of entry. 



"" Louisville, N. A. & C. R. Co. v. Goodbar, 102 Ind. 596- 

 44 



