692 LIABILITY UNDER THE STATUTES. 



mal owing to a failure to fence, the acts of the plaintiff ex- 

 cusing such neglect are not available under a general 

 denial.^^^ A tender of damages pleaded as a distinct defence 

 admits that the company ought to have fenced.^"'' 



144. Evidence; Damages. — Although the material fact in the 

 plaintiff's case is the entry of his animals on the defendants' 

 track at a place where it should have been fenced, it has been 

 held that, where the evidence shows the injury or killing to 

 have occurred at an unfenced place, it will be presumed that 

 the animals entered on the track at that spot.^®^ And, in 

 general, the plaintiff is not bound to show by positive evi- 

 dence where the animals entered : it will be sufficient if that 

 fact can be inferred.^^' But, in the absence of some kind of 

 evidence, there can be no presumption as to the place of in- 

 jury.^'*" If the place of entry was one which the company 

 was required to fence, and was capable of being fenced, the 

 presumption is that the company had done its duty in regard 

 to fencing it.^^^ Where the road was not fenced, it will be 

 presumed that the injury was caused by the failure tO' fence.^'^ 

 Where the statute provides that the failure to fence is prima 

 facie evidence of negligence, proof that the train was running 



'" Kingsbury v. Chic, M. & St, P. R. Co., 104 la. 63. 



'" Taylor v. Chic, St. P. & K. C. R. Co., 76 la. 753. 



'"Wabash R. Co. v. Pickrell, 72 111. App. 601; Patrie v. Oreg. Short- 

 Line R. Co. (Ida), 56 Pac. Rep. 82; Asher v. St. Louis, I. M. & S. R. 

 Co., 89 Mo. n6; Duke v. Kansas City, F. S. & M. R. R. Co., 39 Mo. App. 

 105; Pearson v. Chic, B. & K. C. R, Co., 33 id. 543; McGuire v. Mo. Pac. 

 R. Co., 23 id. 325. See Brenner v. Green Bay, S. P. & N. R. Co., 61 

 Wis. 114. 



'" Evansville & T. H. R. Co. v. Mosier, loi Ind. 597. 



Otherwise, where it is proved that the animals were killed where the 

 company was not obliged to fence: Sullivan v. Oreg. R. & Nav. Co., 19 

 Oreg. 319. 



""Croddy v. Chic, R. I. & P. R. Co., 91 la. 598. 



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



""Wood V. Kansas City, F. S. & M. R. Co., 43 Mo. App. 294; Mayfield 

 V. St. Louis & S. F. R. Co., 91 Mo. 296. 



