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an exception where the company has no legal right to do the act, as where it would obstruct public streets or other public grounds. There is also an implied exception as to places required to be left open by public necessity or convenience, such as station or depot grounds used for the exit or entrance of passengers, or the receipt and delivery of freight. But this public convenience is the limit of the exception, and mere difficulty or inconvenience to the company or individuals creates no exception, and will not relieve it from complying with the law. Atchison, T. & S. F. R. Co. v. Shaft, 6 Pac. Rep. 908; Prickett v. Atchison, T. & S. F. R. Co., 7 Pac. Rep. 611. In Iowa a railroad company has no right to fence its tracks where they cross a public street in a city or town, and the owner of an animal killed at such point cannot recover therefor, on the ground of the failure of the company to fence. Long v. Central Iowa Ry. Co., 21 N. W. Rep. 122. The Michigan statute does not require railroads to fence their tracks at station grounds and their approaches, (Chicago & G T. Ry. Co. v. Campbell, 11 N. W. Rep. 152; McGrath v. Detroit, M. & M. R. Co., 24 N. W. Rep. 854,) nor does the Kansas statute. A railroad company owned a strip of land 250 feet wide by 2,400 feet long, which it used for station grounds. The plaintiff owned a steer, which he permitted to run at large near the station grounds. This animal passed along the highway and onto the station grounds, and wandered along the same until it passed upon the company's right of way and upon the railroad track, where it was killed. Neither the railroad track, nor the right of way, nor the station grounds was inclosed with a fence. A fence, however, extended along one end and a part of the two sides of the station grounds. The place where the animal was killed, though used as a part of the defendant's station grounds, was not necessary for such use. It was held that, assuming that land necessarily used for station grounds need not be fenced, still, as the place where the animal was killed was not necessary in the present case for the use of the railroad company as a part of its station grounds, the same should have been fenced. Atchison, T. & S. F. R. Co. v. Shaft, 6 Pac. Rep. 908. Where a railroad company is, for any reason, relieved from fencing its road at some particular place or places, then it must construct fences or other barriers as near thereto as is reasonably practicable. Andit devolves upon the railroad company to show that it is so relieved. Id. But in Iowa a railroad must fence its road against stock running at large on the line of its road within the limits of a corporate town, and outside of the first street or alley in such town. Coyle v. Chicago, M. & St. P. R. Co., 17 N. W. Rep. 771. Whenever the building of a fence would have prevented an accident to domestic animals, then the negligence of a railroad company in not fencing its road is the cause of the injury, and the company will be liable regardless of the species of the animals; and in the case of sheep or swine this would be a question of fact, depending on the size of the animals. Halverson v. Minneapolis & St. L. Ry. Co., 19'N. W. Rep. 392. A railroad company is not relieved of its obligation to fence in its right of way by the fact that it has let the contract for clearing, grubbing, and grading to a contractor, (Pound v. Port Huron & S. W. Ry. Co., 19 N. W. Rep. 570;) and while a railroad company owes to third persons and the public a duty to keep secure fences at private crossings, it owes no such duty to one whom it permits to construct and maintain a private crossing for his own benefit, and is not liable to such person for injury to his stock caused by a gate being left open at such crossing by a third party, (Louisville, N. A. & C. R. Co. v. Goodbar, 2 N. E. Rep. 337;) but where the owner of the adjoining land builds and maintains the fence between his land and the right of way of a railroad company, which the statute requires the company to build, in the absence of any agreement it will be the duty of the company to maintain it in good condition, and to restore it if removed; but, so long as it remains and is kept in good condition, no matter by whom, so that animals do not get upon the track by reason of any defect in it, the company is not liable as for failure to perform the duty to fence imposed on it by the statute. The statutory duty is discharged, though performed for the company by a mere volunteer. Hoverka v. Minneapolis & St. L. Ry. Co., 17 N. W. Rep. 376.
2. WHAT IS A SUFFICIENT FENCE. A wire fence constructed in accordance with the provisions of Gen. St. Minn. 1878, c. 18, 22, would be a compliance with Gen. St. 1878, C. 31, % 54, requiring railroads to fence their roads. Halverson v. Minneapolis & St. L. Ry. Co., 19 n. w. Rep. 392. Under the Michigan act of 1881 fences are to be approved and regulated by the railroad commissioners; but under the act of 1873 reasonable partition fences, four and a half feet in height, and fairly adapted, so far as strength and mode of construction were concerned, to keep animals from getting on the track, were required. Davidson v. Michigan Cent. R. Co., 13 N. W. Rep. 804. Under Code Iowa, 2 1289, a railroad company fully performs its duty as to fencing when it erects a fence that is reasonably sullicient to prevent live-stock from coming upon the track. Shellabarger v. Chicago, R. I. & P. R. Co., 23 N. W. Rep. 158. In Kansas building fences along the sides of a railroad is not alone sufficient. The railroad must be inclosed" with fences or other barriers; and whenever, for that purpose, cattle-guards are necessary at the crossing of public high ways or other public places, cattle-guards must be put in. Atchison, T. & S. F. R. Co. v. Shaft, 6 Pac. Rep. 908.
3. CATTLE-GUARDS. In the absence of statute there is no obligation on the part of a railroad company to maintain cattle-guards, and where there is no contract or charter obligation in respect thereto, such duty will not be implied from the fact that the company has constructed them along the line of road where it enters and leaves cultivated fields, unless the lapse of time has raised the presumption of a grant or covenant, There is no statute in Tennessee requiring railroads to maintain cattle-guards. Ward v. Paducah & M. R. Co., 4 Fed. Rep. 862. The term "cattle-guards” means such an appliance as will prevent animals from going upon the land adjoining the right of way. Missouri Pac. Ry. Co. v. Morrow, 4 Pac. Rep. 87. A pit under the track is not sufficient. Missouri Pac. Ry.Co. v. Manson, 2 Pac. Rep. 800. But a railroad company is not bound to guard against unruly horses or other animals; and if a cattle-guard is reasonably sufficient to turn back such beasts as cattle-guards are generally designed to restrain, it is not liable for not maintaining a better one. Smead v. Lake Shore & M. S. Ry. Co., 24 N. W. Rep. 761. And where the land-owner erects fences up to the right of way, it is the duty of the railroad company to erect a guard or protection extending the whole width of the right of way. Heskett v. Wabash, St. L. & P. Ry Co., 16 N. W. Rep. 525. In Iowa a cattle-guard cannot be considered as a part of a fence in such a sense that the owner of cattle, killed by reason of the defective condition of the cattle-guard, may recover double damages, as in the case of a defective fence. Moriaty v. Central Iowa Ry. Co., 21 N. W. Rep. 143. A railroad company, whether it operates the road as owner or lessee, is bound to see that proper cattle-guards exist wherever the road enters or leaves improved or fenced land, Missouri Pac. Ry. Co. v. Morrow, 4 Pac. Rep. 87;) but a railroad company is not required, within the limits of a city, to place guards around a cut, away from a public thoroughfare, to prevent animals grazing there in violation of law from falling down the bank. Clary v. Burlington & M. R. R. Co., 15 N. W. Rep. 220. Where a railroad is constructed across unimproved or uninclosed lands, and the land is afterwards improved or inclosed, it becomes the duty of the company operating such road, under section 1288 of the Iowa Code, to construct cattle-guards. Heskett v. Wabash, St L. & P. Ry. Co., 16 N. W. Rep. 525. Service upon a station-agent of the company, in a county where the land lies, of a written notice that the owner was fencing his land, and desired cattle-guards placed at both ends of the company's road where it passed in and out of his land, is sufficient notice to the company under the Iowa statute. Heskett v. Wabash; St. L. & P. Ry. Co., 16 N. W. Rep. 525.
4. GATES AND BARS. As the statute (Pub. Acts Mich. 1875, p. 139) does not preclude railroad companies from putting gates or bars at places other than farm crossings, they may construct them at other points, when deemed advisible, and a fence with such gates or bars may be a sufficient fence within the requirements of the statute. Hayt v. Detroit. G. H. & M. Ry. Co., 21 N. W. Rep. 367. A gate is a part of an inclosing structure, and a railroad company is liable, under Code Iowa, & 1289, for damages resulting from failure to maintain a gate at a private crossing. Mackie v. Central Iowa R. R., 6 N. W. Rep. 723.
5. DUTY TO KEEP IN REPAIR. After a railroad company has constructed fences, gates, crossings, and cattle-guards, it is bound to keep them in sufficient repair to accomplish the purpose for which they were intended. Miller v. Chicago, R. I. & P. R. Co., 24 N. W. Rep. 36; Bennett v. Wabash, St. L. & P. R. Co., 16 N. W. Rep. 211. The duty of a railroad company to maintain its fences is discharged by the exercise of reasonable care and diligence, and they may be temporarily prostrate or broken without a breach of such duty, (Varco v. Chicago, M. & St. P. Ry. Co., 13 N. W. Rep. 921; Grand Rapids & I. R. Co. v. Monroe, 10 N. W. Rep. 179; Carey v. Chicago, M. & St. P. Ry. Co., 20 N. W. Rep. 648;) but where a defect is patent, and has existed for two weeks or more, this will be considered presumptive negligence on the part of the company in failing to repair. Varco v. Chicago, M. & St. P. Ry. Co., 13 N. W. Rep. 921. Section 3324, Ohio Rev. St., requiring railroad companies to fence their tracks, and providing that they shall be liable for damages sustained by reason of the want or insufficiency of such fences, is to be reasonably construed; and where such damage results from defects (occurring without the fault or neglect of such companies) in an otherwise sufficient fence, there is no liability; and the fact that an insufficient fence has, for several weeks, been maintained by a railroad company along its right of way is sufficient to justify a jury in finding it gụilty of negligence; and the fact that the plaintiff's stock had, during all such time, been kept in a field adjoining the right of way, without escaping through such fence, and passing upon the railroad track, is not sufficient to excuse the company from such neglect; but where the immediate means or cause of such stock passing ver such fence and upon the railroad track is that, recently prior thereto, a board or rail had become detached and fallen from the fence, without the knowledge of the company, such company is not excused from liability, where there is evidence to justify the jury in finding that such special defect was attributable to the generally defective condition of the fence. Baltimore & 0. R. Co. v. Schultz, 1 N. E. Rep. 324. Reasonable care and diligence do not require it, unless under exceptional and extraor
dinary circumstances, to remove the natural accumulations of snow and ice from cattle-guards, (Blais v. Minneapolis & St. L. Ry. Co., 24 N. W. Rep. 558 ;) nor has it the right to take timber or poles from adjoining land not owned by it to repair its fences, etc. Cirey v. Chicago, M. & St. P. Ry. Co., 20 N. W. Rep. 648. Where the fence between the tracks and plaintiff's pasture was swept away by a flood which was at its height about eight days before plaintiff's horses were injured on the track, and, though the water had been falling each day, at the time of the injury it had not subsided so as to leave the entire line of the fence uncovered at the point where the injury occurred, it was held that the company were not negligent in not repairing the fence. Goddard y. Chicago & N. W. Ry. Co., 11 N. W. Rep. 593. And where it appeared that the section foreman had gone over the road in the forenoon, and that the fence was burned about noon, and cattle strayed on the track and were killed about 6 o'clock, and that the sectionman did not know of the burning of the fence until the next morning, it was held that the railroad company were not chargeable with negligence. Toledo & C. S. Ry. Co. v. Eder, 7 N. W. Rep. 898. Whether an inspection of fences every two days is sufficient exercise of diligence is a question of fact, to be determined by the jury with reference to the circunstances of the case. Evans v. St. Paul & S. C. Ř. Co., 16°N. W. Rep. 271.
6. CHARACTER OF ANIMALS. Section 1289, Code Iowa, requires a railroad company to fence against swine, as well as other species of live-stock. Lee v. Minneapolis & St. L. Ry. Co., 23 N. W. Rep. 299. And under the Kansas railroad stock law of 1874 a railroad is required to inclose its road with a good and lawful fence, as against all animals, including hogs; and where it is claimed that the animal injured was of such a character that a good
and lawful fence would be no protection against it, the company must prove this. Missouri Pac. Ry. Co. v. Roads, 7 Pac. Rep. 213, Same v. Bradshaw, 6 Pac. Rep. 917. But in Iowa the stock must be running at large; and an instruction, in an action to recover damages for cattle killed by a railroad coni pany, that, if the company neglected to build and maintain fences sufficient to keep stock off its right of way under all ordinary circumstances, it was liable for all injury to stock occasioned by such negligence, is erroneous, as it holds the company liable whether the stock were at the time running at large or not. Brentner v. Chicago, M. & St. P. Ry. Co., 23 N. W. Rep. 245. A team of horses that, becoming frightened, break away from a hitching-post and run upon the track, and are killed by reason of a failure of the company to fence, are to be regarded as “live-stock running at large,” within the meaning of Code Iowa, § 1289, (Inman v. Chicago, M. & St. P. Ry. Co., 15 N. W. Rep. 286 ;) and so is a colt that escapes from its owner while being conducted across the depot grounds, and strays upon the track. Smith v. Kansas City, St. J. & C. B. R. Co., 12 N. W. Rep. 619.
7. For WHAT INJURIES RAILROAD LIABLE-PROXIMATE CAUSE. The liability of a railroad company under the Minnesota statutes for injuries to animals caused by failure to fence is not confined to injuries caused by collisions with trains, but extends to any injury to animals getting on the track which might naturally and reasonably be expected to result from such neglect, in view of the character and condition of the railroad, and the uses to which it is to be put; but, as in other cases of negligence, the company is only liable for injuries of which the neglect to fence was the proximate cause, and which are the natural and proximate consequences of such neglect. Nelson v. Chicago, M. & St. P. Ry. Co., 14 N. W. Rep. 360 ; Maher v. Winona & St. P. R. Co., 18 N. W. Rep. 105; Krause v. B., C. R. & N. R. Co., 7 N. W. Rep. 598. So, where a colt got on the track, and broke his leg by getting his foot into a hole about as large as his foot, it was held that the company was not liable. Nelson v. Chicago, M. & St. P. Ry. Co., 14 N. W. Rep. 360. And, under the New York statute, (Laws 1850, c. 140, 8 44; Laws 1854, c. 282, 8 8,) it is held that the injury must be caused by some act on the part of the company or its agents; and where an animal injures itself on the track, as by falling through a bridge, the company will not be liable. Knight v. New York, L. E. & W. R. Co., 1 N. E. Rep. 108.
8. CONTRIBUTORY NEGLIGENCE OF OWNER AS A DEFENSE. Under the Iowa statute mere negligence on the part of the owner will not defeat his recovery, as the railroad company is liable for all injuries sustained by reason of a failure to fence, not occasioned by the willful act of the owner or his agent. Inman v. Chicago, M. & St. P. Ry. Co., 15 N. W. Rep. 286 ; Krebs v. Minneapolis & St. L. Ry. Co., 21 N. W. Rep. 131. The niere fact that the owner of a colt killed, by a voluntary act exposed it to danger, the act being done for a lawful purpose, and the danger merely incidental, will not make the ,act willful within the meaning of the Iowa statute and defeat recovery, (Smith v. Kansas City, St. J. & C. B. R. Co., 12 N. W. Rep. 619;) and allowing his högs to run at large on his premises near a railroad track will not constitute such a "willful act of the owner as will exonerate the railroad company from liability for killing them. Lee v. Minneapolis & St. L. Ry. Co., 23 N. W. Rep. 299. In Kansas the mere fact that the owner permitted his animals to run at large is not such contributory negligence as will prevent his recovery in the event of injury resulting from a failure to fence. Atchison, T. & S. F. R. Co. v. Shaft, 6 Pac. Rep. 908 ; Missouri Pac. Ry. Co. v. Bradshaw, Id. 917. In Michigan the statutory liability of a railroad company for injuries to cattle result
ing from failure to fence its track is not affected by the contributory negligence of the owner of the cattle, (Grand Rapids & I. R. Co. v. Cameron, 8 N. W. Rep. 99;) and where a servant was driving four horses home, and they ran upon the track through openings in the fence, and were struck and killed by a train, it was held that the owner could recover, notwithstanding the negligence of his servant in allowing them to escape upon the track; but that if he had purposely driven them on the track the company would not be liable unless there was gross and reckless nisconduct in the
management of the train. McDonald v. Chicago & N. W. Ry.Co., 17 N. W. Rep. 210. In Minnesota the contributory negligence of the owner is a defense, but the question of contributory negligence is generally a question for the jury, (Johnson v. Chicago, M. & St. P. Ry. Co., 13 N. W. Rep. 673;) and it is not conclusive evidence of contributory negligence for one to allow his domestic animals to run in his pasture adjoining a railroad, although he knew the dividing fence which the company was bound to maintain to be defective, (Evans v. St. Paul & S. C. R. Co., 16 N. W. Rep. 271,) and that the animals had before gotten on the track through an opening therein. Johnson v. Chicago, M. & St. P. Ry. Co., 13 N. W. Rep. 673. In Nebraska a railroad company which fails to fence its track at a place where by statute it is required to fence, is liable for stock killed or injured on its track by its engines or cars, and the mere negligence of the owner is no defense. Burlington & M. R. R. Co. v. Franzen, 18 N. W. Rep. 511; Burlington & M. R. R. Co. v. Webb, 24 N. W. Rep. 706. The mere escape of högs from an inclosure was held not contributory negligence. Union Pac. Ry. Co. v. High, 1+ N. W. Rep. 547. See, also, Union Pac. Ry. Co. v. Schwenck, 14 N. W. Rep. 376. In Wisconsin it was held that an owner who, knowing that a storm on Sunday had prostrated fences, on Monday evening turned his cattle upon uninclosed land, without inquiring whether the railroad fences abutting thereon were uninjured, was guilty of such contributory negligence that he could not recover for injuries received by his cattle on the railroad track, upon which they went through a gap in the fence caused by the falling of a tree thereon. Carey v. Chicago, M. & St. P. Ry. Co., 20 N. W. Rep. 648; but see Quackenbush v. Wisconsin & M. R. Co., 22 N. W. Rep. 519.
9. INJURIES TO ANIMALS RUNNING AT LARGE IN VIOLATION OF LAW. In Iowa the owner of a horse which is killed on the ground of another, where it is at large in the night-time, in violation of the night herd law, by a railroad train, without fault or negligence of the railroad company, at a point where it had a right to fence, but did not, may recover therefor in an action against the company, under section 1289 of the Code, (Krebs v. Minneapolis & St. L. Ry. Co., 21 N. W. Rep. 131;) and a railroad company is liable for swine killed on its track while running at large at a point where the company had a right to fence its road, and had not provided a sufficient fence, without proof of negligence on the part of the company, although such swine were running at large contrary to law. Krebs v. Minneapolis & St. L. Ry. Co., 21 N. W. Rep. 131, followed. Lee v. Minneapolis & St. L. Ry. Co., 23 N. W. Rep. 299. In Kansas an unfenced railway passed through a farm, and a hog belonging to the owner of the farm escaped, without any fault on the part of the owner, and strayed upon the railway within the limits of such farm, and was there killed by the railway company in the operation of its road. Held, under the railroad stock law of 1874, (Comp. Laws 1879, pp. 784, 785, pars. 4915-4919,) that the railway company was liable, notwithstanding the fact that the hog law of 1868, (Comp. Laws 1879, pp. 927, 928, c. 105, art. 7,) prohibiting hogs from running at large, was in force in that township, (Atchison, T. & S. F. R. Co. v. Bradshaw, 6 Pac. Rep. 917; Missouri Pac. Ry. Co. v. Roads, 7 Pac. Rep. 213;) and where a person pastured a bull over one year old on his own inclosed premises, through which a railroad was constructed and operated, and the railroad company had not inclosed its road with a fence, as required by the provisions of the railroad stock law of 1874, (Conip. Laws 1879, c. 84, art. 2, pp. 784, 785,) and the bull was killed by the railroad company in the operation of its road, it was held that the bull was not so running at large, within the meaning of section 38, art. 5, of the act relating to stock, (Comp. Laws 1879, c. 105,) as to prevent the owner from recovering for its value, under the provisions of said railroad stock law of 1874, although the railroad company may have owned the strip of land upon which its track was located and where the animal was killed. Gooding v. Atchison, T. & S. F. R. Co., 4 Pac. Rep. 136. In Minnesota merely permitting animals to run at large, in violation of a special law prohibiting it in certain towns, and making their owners liable for trespasses by them, is not considered contributory negligence, and there is no exemption from liability in the case of estrays or merely trespassing animals, where the fault or negligence of the owners does not contribute to the injury. Gillam v. Railroad Co., 3 N. W. Rep. 353; Watier v. Chicago, M. & St. P. Ry.Co., 16 N. W. Rep. 537. See O'Connor v. Chicago, M. & St. P. Ry. Co., 6 N. W. Rep. 481. Under the Nebraska act of June 20, 1867, a railroad company is liable for stock killed upon its track while running at large in the night-time, ata point where the company was required but failed to fence its track, notwithstanding stock is prohibited by statute from running at large in the night-time. Chicago, B. & Q. Ry. Co. v. Sims, 24 N. W. Rep. 388.
10. INJURIES TO TRESPASSING ANIMALS. The owner of cattle not running at large in violation of some positive statute, but rightfully running at large under the statutes, and merely straying from land in which the owner of the cattle had no interest, and upon which they were technically trespassers, may recover from a railroad company for any injuries done to the cattle in the operation of its road, (Railway Co. v. Howard, [Sup. Ct. Ohio, 1883,] 11 Amer. & Eng. R. Cas. 488; Toledo, etc., Ry. Co. v. Cary, 37 Ind. 172; Keliher v. Connecticut R. R. Co., 107 Mass. 411; McCall v. Chamberlain, 13 Wis. 637; Dunkirk, etc., R. Co. v. Mead, 90 Pa. St. 454; see Prickett y. Atchison, T. & S.F.R. Co., 7 Pac. Rep. 611;) especially where the land through which the road ran belonged to the owner of the cattle, and they got upon the track through the failure of the company to fence, and not through any fault of the owner. Shepard v. Buffalo, etc., R. Co., 35 Ñ. Y. 615; Mead v. Burlington, etc., R. Co., 52 Vt. 278; Wilder v. Maine Cent. R. Co., 65 Me. 332; Cincinnati, etc., Ry. Có. v. Hildreth, 77 Ind. 504; Rogers v. Newburyport R. Co., 1 Allen, 16; Corry v. Great Western R. Co., 6 Q. B. Div. 237; S. C. 7 Q. B. Div. 322; McCoy v. California Pac. R. Co., 40 Cal. 532; Veerhusen v. Chicago & N. W. Ry. Co., 11 Ń. W. Rep. 433; Hinman v. Chicago, etc., R. Co., 28 Iowa, 491 ; White v. Concord R. R., 30 N. H. 188; Keech v. Baltimore & W. Ry. Co., 17 Md. 32; Missouri Pac. R. Co. v. Roads, 7 Pac. Rep. 213. Thus, in a county in Kansas where the herd law prohibiting cattle from running at large was in force, as well as the railroad stock law of 1874, an owner of cattle kept and pastured them on his own land, through which a railroad was constructed and operated, which railroad was not inclosed, as required by the statute, by any fence separating it from the owner's land, and the cattle strayed upon the railroad, where one of them was killed by the company in the operation of its road, it was held that the owner of the cattle could
recover from the company for such injury. Atchison, T. & S. F. R. Co. v. Riggs, 3 Pac. Rep. 305; but see Van Horn v. Burlington, C. R. & N. Ry. Co., 12 N. W. Rep. 752. But in Iowa, where animals which are allowed to run at large in violation of a city ordinance stray upon a railroad track within the city, they become trespassers, and the company is not answerable for injuries inflicted upon them by any negligence of its servants not amounting to wanton or reckless misconduct. Van Horn v. Burlington, C. R. & N. Ry. Co., 12 N. W. Rep. 752; S. C. 18 N. W. Rep. 679.
11. NOTICE AND DEMAND BEFORE SUIT. Notice and affidavit under Iowa Code, 1289, are not defective because they fail to show that the animals injured were running at large, and that they were injured without the willful act of the owner. Mackie v. Central Iowa R. Co., 6 N. W. Rep. 723. That cattle were killed in the county may sufficiently appear from venue of affidavit and seal of notary. Mackie v. Central Iowa R. Co., 6° N. W. Rep. 723. Service of the statutory affidavit and notice must be clearly shown. Keyser v. Kansas City, St. J. & C. B. R. Co., 9 N. W. Rep. 338. The notice and affidavit of the killing of stock by a railroad company may be served on an officer or agent of the corporation by simply delivering them to such officer or agent, without reading them. Brentner v. Chicago, M. & St. P. Ry. Co., 23 N. W. Rep. 245. Proof of service of the notice of the killing of stock by a railroad at a place where it is required by law to fence, upon the station agent of the road in the county where the station is located, is sufficient. Welsh v. Chicago, B. & Q. R. Co., 6 N. W. Rep. 13; Sohlengener v. Chicago, M. & St. P.R. Co., 16 N. W. Rep. 103; Smith v. Chicago, M. & St. P.R. Co., 15 N. W. Rep. 303. A demand, otherwise in proper form, is not void, so as to prevent the owner from maintaining an action against the railroad company under the Kansas stock law of 1874, for the actual value of an animal killed, because in it the owner placed the value of the animal at more than it was actually worth; nor will this prevent him from recovering a reasonable attorney's fee for the prosecution of the action. Missouri Pac. Ry. Co. V. Abney, 1 Pac. Rep. 385.
12. TENDER-CODE IOWA, % 2105. An offer in writing by a railroad company to pay a certain amount of money to the owner of cattle killed by one of its trains, made to prevent litigation, and denying that such amount is in reality due the owner, is not an unconditional and valid tender. Kuhns v. Chicago, M. & St. P. R. Co., 22 N. W. Rep. 661.
13. PLEADING. The complaint must contain the averment that the animals entered upon the railroad at a point where it was not fenced as required by law; but in actions before a mayor or justice of the peace great latitude will be allowed, (Wabash, St. L. & P.R. Co. v. Lash, 2 N. E. Rep. 250,) and such a defect in the higher court will be cured by verdict. Louisville, N. A. & C. R. Co. v. Goodbar, 2 N. E. Rep. 337. A petition that alleges, in an action against a railroad company, that said company neglected and refused, for the period of about one year, to place cattle-guards at the proper places on its right of way through plaintiff's lands, and that by reason of said failure and neglect his fields were thrown open to the public, and that his grass and corn-stalks that he had been saving for his cattle were thereby destroyed and lost to him, and that he could not prevent the said loss, held not demurrable, on the ground that it claims remote damages; as the question of what actual damage was sustained was a matter to be proved by evidence at the trial. Raridon v. Central Iowa Ry. Co., 22 N. W. Rep. 909.