A Treatise On American Railroad Law

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27 id. 49.
* Cornwall v. Sullivan R. R. Co. 8 Foster, 181.
2 INJURIES TO CATTLE. 341 track, at least in the absence of negligence, which have strayed upon the highway, and come upon the track through the want of the fence or cattle-guards which the company is by law bound to maintain.
The cattle were unlawfully on the highway, unless they were being driven along, or while being driven along, escaped from the persons having charge of them, who made fresh pursuit. The plaintiff can- not recover f
...or an injury brought about by his neg- ligent and unlawful act. 1 ■Although the company, when bound to fence, may not be bound to fence against cattle unlawfully on the adjoining land, it is liable for wanton injury to them, and in some States is liable for injury to them which might have been avoided by it in the exercise of ordinary care at the time of the injury. 2 A construction of the statute may be adopted which excludes the operation of the rule of the com- mon law requiring a party, on whom the obliga- tion of fencing rests, to fence only against cattle rightfully on the adjoining close.

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