KVIOKNCI': ; DAMAGES. 693 



at a lawful rate of speed and with proper appliances and that 

 the collision was unavoidable, will overcome the presump- 

 tion of negligence.^'^^ 



Where the action is brought for common-law negligence, 

 the fact that the road was not fenced cannot be shown.-'''* 

 And, conversely, where the petition sets up merely that the 

 injury was caused by the want of a fence, the plaintiff is not 

 entitled to have the question of general negligence adjudi- 

 cated.-'f^ 



Where the facts are undisputed, the question of the neces- 

 sity of fencing is one of law for the court.^'^^ Where the evi- 

 dence as to such necessity is conflicting, the verdict of the 

 jury will not be disturbed.^''' 



Where the fence has been shown to be insecure and not such 

 as good husbandmen generally keep, it need not be shown 

 that the particular part where the stock passed was inse- 

 cure.^'^ Where the evidence fails to show that defects in a 

 fence or crossing had any bearing on the question of the de- 

 fendant's negligence, evidence of such defects is inadmis- 

 sible.^'^ Evidence of repairs made by the company to a gate 

 after cattle were killed, owing, as alleged, to the bad condition 

 of the gate, is admissible.^^" But evidence of the character 

 and kind of fence subsequent to the injury is not admissible 

 without showing that there had been no change in its con- 



™ Dickey v. North. Pac. R. Co., 19 Wash. 3So. 



'■"' Pittsburg, C. & St. L. R. Co. v. Stuart, 71 Ind. 500; Dickey v. North. 

 Pac. R. Co., supra. 



™ Asbach v. Chic, B. &. Q. R. Co., 74 la. 248. 



"' Hyatt V. New York, L. E. & W. R. Co., 64 Hun (N. Y.) S42- 



'"Terre Haute & I. R. Co. v. SchaefTer, s Ind. App. 86. And see 

 Snook V. Clark, 20 Mont. 230. 



'" Louisville, N. A. & C. R. Co. v. Spain, 61 Ind. 460. 



See, as to evidence of insecurity, McGuire v. Ogdensburgh & L. C. R. 



Co., 18 N. Y. Suppt. 313- _ ^- A ^ < c w 



-' Galveston, H. & S. A. R. Co. v. Dyer (Tex. Civ. App.), 46 S. W. 



Rep. 841. 

 '"Page V. Great Eastern R. Co., 24 L. T. N. S. sSS- 



