action; PAKTiiis ; plkadi.ng. 691 



based on a failure to keep a cattle-guard in repair was held 

 <lemurrable for not alleging that the guard was one that the 

 defendant was required to keep in repair.^^^ 



General allegations of the continuous operation of the road 

 and the continuous neglect to fence it and that damages re- 

 sulted therefrom, are sufificient to authorize a recovery for 

 such natural mischiefs as invariably follow the destruction of 

 fences and exposure of lands and cannot easily be itemized.^^* 

 An allegation that the damage was caused by the defendant's 

 failure to maintain a good and sufficient fence will cover any 

 defect in the fence without special mention. ^°'' But an aver- 

 ment that a barbed-wire fence was so constructed as to create 

 a snare and that stock were injured on the wires was held not 

 to charge that the fence was negligently constructed.^"" 



A petition uniting a cause of action for not maintaining 

 fences, for failure to signal and for negligence, has been held 

 bad for duplicity.^®^ Otherwise, where a petition alleged a 

 failure to maintain fences with an opening and gates therein, 

 and to maintain cattle-guards : the plaintiff might recover on 

 proof of either charge.^"^ But allegations of negligence in 

 such cases may be treated as surplusage and the action re- 

 garded as a statutory one for failure to fence.^*^ 



An allegation that the road was "not fenced according to 

 law" was held insufficient, as stating a mere conclusion of 

 law.^"* Otherwise, where the allegation was that the road 

 was "not securely fenced as required by law." ^*^ 



It has been held that in an action for the death of an ani- 



="' Southern R. Co. v. Harrell (Ga.), 30 S. E. Rep. 821. 



'^ Grand Rapids & I. R. Co. v. Southwick, 30 Mich. 444. 



'"• McCoy V. Southern Pac. R. Co. (Cal.), 26 Pac. Rep. 629. 



^° Texas M. R. Co. v. Hooten (Tex. Civ. App.), 50 S. W. Rep. 499- 



'^ Harris v. Wabash R. Co., 51 Mo. App. 125. 



'""Woods V. Mo., K. & T. R. Co., 51 Mo. App. 500. 



'«» Jeffersonville, M. & I. R. Co. v. Lyon, SS Ind. 477- 



«" Indianapolis, P. & C. R. Co. v. Bishop, 29 Ind. 202. 



"" Indianapolis, B. & W. R. Co. v. Lyon, 48 Ind. 119. 



