694 LIABILITY UNDER THE STATUTES. 



dition since the injury.^*^ Where the company claims that 

 the animal was such that a good and lawful fence would be no 

 protection against it, the burden is on the compay to show 

 this.282 



The bad condition of fences in other places is not a material 

 fact.^^^ But evidence of the insufficiency of a similarly con- 

 structed cattle-guard some miles away is admissible.^*'' So,, 

 evidence is admissible that the same make of cattle-guards is 

 in general use among railways and is regarded as being the 

 best-known make.^*° But in an action against a company 

 for injuries to crops resulting from a defective cattle-guard it 

 was held that evidence that another guard, similarly con- 

 structed, had proved sufficient, was properly rejected.^'*'' 

 Evidence that other animals had got on the track owing to 

 the alleged defects in a fence or cattle-guard is admissible.^*'' 



It is proper to ask competent witnesses whether a particu- 

 lar fence was such a one as good husbandmen usually keep.*** 

 But the mere opinion of a witness that a bank was a good pro- 

 tection was held not admissible.*** And it has been held 

 that witnesses cannot testify as to the sufficiency of a cattle- 

 guard : their testimony should be confined to its actual con- 

 dition, leaving the question of sufficiency for the jury.*^" So,, 



"^ Brentner v. Chic. M. & St. P. R. Co., 58 la. 625. 



"^Mo, Pac. R. Co. V. Bradshaw, 33 Kan. 533. And see Gulf, C. & 

 S. F. R. Co. V. Hudson, 77 Tex. 494, where it was held that a company 

 that has not fenced its road cannot show that the killing would have 

 occurred even if there had been a fence. 



"" Chic, B. & Q. R. Co. V. Farrelly, 3 111. App. 60. 



"*New York, C. & St. L. R. Co. v. Zumbaugh, 11 Ind. App. 107. 



"^ Lake Erie & W. R. Co. v. Murray, 69 111. App. 274. 



'" Downing v. Chic, R. T. & P. R. Co., 43 la. 96. 



"'New York, C. & St. L. R. Co. v. Zumbaugh, supra; Chic & N. R. 

 Co. V. Hart, 22 111. App. 207; Lake Erie & W. R. Co. v. Murray, suprar 

 Bowen V. Flint & P. M. R. Co., no Mich. 445; Jebb v. Chic. & G. T. 

 R. Co., 67 id. 160. 



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



•"Veerhusen v. Chic. & N. R. Co., 53 Wis. 689. 



"° Kansas City, M. & B. R. Co. v. Spencer, 72 Miss. 491 ; Grace v. Gulf 

 & C. R. Co. (Miss.), 25 South. Rep. 875. 



