Fensom v. Can. Pac. Ry. Co., 3 Can. Ry. Cas. 231, 7 O.L.R. 254.
[Affirmed in 8 O.L.R. 688, 4 Can. Ry. Cas. 76.]
CROWN LANDS POWERS OF MUNICIPALITIES.
The Railway Act, 1888, s. 194 as amended by 53 Viet. c. 28, s. 2 enacts
that, if in consequence of the omission of a railway company to erect and
maintain a fence, "any animal gets upon the railway from an adjoining
place where under the circumstances it might properly be, then the com-
pany shall be liable to the owner of every such animal for all damages in
respect of it caused by any of the company's trains or engines," and that
"no animal allowed by law to run at large shall be held to be trespassing
on a place adjoining the railway merely for the reason that the owner or
occupant of such place has not permitted it to be there." The plaintiffs'
cattle running at large in a municipality, as by one of the by-laws they
were permitted to do, got upon Crown lands, and from the Crown lands,
on to the railway, and were killed on the track by one of the defendant's
trains: Held, that notwithstanding the by-law permitting running at
large, the cattle were not properly on the Crown lands; yet the defendants
could not defend themselves by saying that they were trespassing there,
FATAL ACCIDENTS ACT. 401
bat were liable under the above enactments. The authority of a munici-
pal council under RS.O. 1897, e. 223. s. 546 (2) extends no further than
to allow the running at large upon the roads and highways of the muni-
cipality. 3 Can. Ry. Cas. 231, 1 O-LJL 254, affirmed.
Fensom T. Can. Pae. By. Co^ 4 Can. Ry. Cas. 76, 8 A-LuR, 688.
CATTLE AT LARGE IXTEBSECTIOX or BAILBOAD AST> HIGHWAT.
On the proper construction of s. 237. subs. 4 of the Railway Art, 1903.
while it is unlawful for the owner of cattle to permit them to be at large
within half a mile of the intersection of a highway with a railway, and
while if killed at the intersection, the railway is exempt from liability
if by reason of the failure of the company to comply with the statutory
requirements as to fencing, construction of cattle guards, etc., the cattle
reach the line of railway and are killed or injured at a point on the rail-
way other than the intersection, the company are liable, unless they can
establish affirmatively that the owner was guilty of negligence. The mere
fact that the cattle were at large or the fact that they were not in charge
of a competent person does not prevent the plaintiff's recovery.
Arthur v. Central Ontario Ry. Co.. 5 Can. Ry. Cas. 318, 11 6.LJL 537.
[Considered in Carruthers v/Can. Pac. Ry. Co., 16 Man. LJL 329; fol-
lowed in Lebu T. Grand Trunk Ry. Co., 12 OJLJL 590, 5 Can. Ry. Cas. 329;
referred to in McDaniel v. Can. "Pac. Ry. Co.. 13 B.CJL 52. See Bacon T.
Grand Trunk Ry. Co., 5 Can. Ry. Cas. 325, 12 O-LJL 196; followed in
Parks T. Can. Northern Ry. Co.. 14 Can. Ry. Cas. 247.]
KILLED OX TRACK NEGLIGENCE:
In an action for damages for the loss of a horse killed by a train upon .
the defendants' track, the jury found that the horse was killed upon' the
property of the defendants, and that the defendants were responsible for
that: Held, that upon the proper construction of s. 237, subs. 4, of the
Railway Act, 1903, a finding that the horse was killed upon the property
of the defendants was sufficient to entitle the plaintiff to recover unless it
was shewn by the defendants that the animal got at large through the
negligence of the owner or custodian, and such negligence was sufficiently
negatived, in view of the Judge's charge, by the finding of the jury that
defendants were responsible. Judgment of the county Court of Simcoe
reversed.
Bacon T. Grand Trunk Ry. Co.. 5 Can. Ry. Cas. 325, 12 O-LJL 196.
[Followed in Carruthers v. Can. Pac. Ry. Co.. 16 Man. LJL 329: Cortese
T. Can. Pac. Ry. Co., 13 B.C.R. 323: Lebu v. Grand Trunk Ry. Co.. 12
O.L.R. 590. 5 Can. Ry. Cas. 329; referred to in McDaniel v. Canl Pac. Ry
Co.. 13 B.CJL 53: vide Arthur v. Central Ont. Ry. Co.. 5 Can. Ry. Cas.
318. 11 O.L.R. 537: followed in Parks v. Can. North. Ry. Co.. 14 Can.
Ry. Cas. 247.
OF OWXES" "IMPROVED OB SETTLED AXD ENCLOSED."
Lands adjoining a railway must not only be improved or settled but
also enclosed before the company is required to erect fences under s. 199
of the Railway Act, 1903: An owner of lands adjoining the railway, but
which the company is not bound to fence, cannot maintain an action under
a. 237 (4) for the loss of a horse killed on the railway.
Phair T. Can. Northern Ry. Co_ 5 Can. Ry. Cas. 334, 6 O.WJL 137.
[Commented on in Re Can. North. Ry. Co., 42 Can. S.C.R. 475: refer-
red to in Daigle T. Temiscouata Ry. Co"., 37 NJJJL 220; McLeod v. Can,
Northern Ry. Co., 9 Can. Ry. Cas. 39, 18 OJ.JL 616; Biddeson v. Can.
North. Ry. Co., 7 Can. Ry. Cas. 17.]
Can. Ry. L. Dig. 26.
402 FATAL ACCIDENTS ACT.
CATTLE STRAYING ON TRACK LIABILITY FOR KILLING MEANING OF "OTH-
ERWISE."
Cattle being pastured in common by the occupiers of improved lands
bordering on the defendant company's railway found their way to the
track, and were killed by a passing train of the defendant company. It
was proved that the defendants' fence along the common pasture was de-
fective, that the company had notice of the defect and neglected to repair
it, but there was no evidence as to how the cattle got on the track:
Held, that under the Railway Act, 1903, it might he inferred that the
cattle found their way to the track through the defendants' defective fence,
and a verdict for the plaintiff should have been sustained. Subs. 4 of
s. 237 of the Act provides that when any cattle or other animals at large
upon the highway or "otherwise" gets upon the property of the company
and are killed or injured by a train, the owner shall be entitled to recover
for the loss or injury from the company, unless they shew the negligence
or wilful act or omission of the owner: Held, that the word "otherwise"
means "otherwise at large," and not otherwise at large in a place ejusdem
generis with a highway.
Daigle v. Temiscouata Ry. Co., 6 Can. Ry. Cas. 33, 37 N.B.R. 219.
[Referred to in McLeod v. Can. North. Ry. Co., 9 Can. Ry. Cas. 39, 18
O.L.R. 616.]
ANIMAL KILLED ON TRACK NEGLIGENCE OF OWNER.
Plaintiff's horses were found by defendants' section foreman on their
right of way about a quarter of a mile from a highway crossing. The
fences were in good repair and so were the cattle guards at the crossing
prior to a snowstorm which filled them up. The horses were killed after
the snow storm. There was no evidence as to how they came to their death
nor any evidence of external violence. It was shewn that the horses were
put in pasture at a distance from the plaintiff's residence without any
one being left in charge and in such a position that they might easily have
escaped: Held, that the plaintiff could not recover as the horses were at
large through his negligence or wilful act or omission.
Becker v. Can. Pac. Ry. Co., 7 Can. Ry. Cas. 29, 5 West. L.R. 569.
[Approved in Clayton v. Can. North. Ry. Co., 17 Man. L.R. 426, 7 W.L.R.
721, 7 Can. Ry. Cas. 355; followed in Parks v. Can. North. Ry. Co., 14
Can. Ry. Cas. 247 ; Wallace v. Grand Trunk Ry. Co., 17 Can. Ry. Cas. 64.
PASTURE IN OPEN.
Plaintiff's animals were set at large to pasture in the open country, and
were killed at a place where the company was not bound to fence: Held,
that he could not invoke the aid of s. 237, subs. 4, of the Railway Act,
1903. Decision of Forin, Co. J., affirmed, Martin, J., dissenting.
McDaniel v. Can. Pac. Ry. Co., 7 Can. Ry. Cas. 34, 13 B.C.R. 49.
[Followed in Power v. Jackson Mines, 13 B.C.R. 208; referred to in
Clayton v. Can. Northern Ry. Co., 17 Man. L.R. 426, 7 Can. Ry. Cas. 355.]
LOSS OF CATTLE STRAYING ON RAILWAYS OMISSION OF OWNER.
Under subs. 4 of s. 237 of the Railway Act, 1903, which provides that
railway companies shall be liable for the loss of cattle killed on their
roads except when it is proved that such cattle "got at large through the
negligence or wilful act or omission of the owner or his agent," no lia-
bility whatever is incurred by the company for contributory negligence or
otherwise when the case falls within the exception.
Bourassa v. Can. Pac. Ry. Cas. 41, 30 Que. S.C. 385.
[Approved in Clayton v. Can. North. Ry. Co., 17 Man. L.R. 426, 7
W.L.R. 721, 7 Can. Ry. Cas. 355; followed in Renaud v. Can. Pac. Ry. Co.,
13 Can. Ry. Cas. 358.]
FATAL ACCIDENTS ACT. 403
"XCGUGEXCE OF OWTfEK."
Where horses had been placed by the plaintiff in a corral bounded OB
the south and vest by a fence, on the east by a creek, and not closed in
in any way on the north, the creek bring frozen over so that the horses
could pass over it. it was held that there was a wilful omission or negli-
gence on the part of the owner within the meaning of the statute in leaving
horses in ich a place at night, and that the owner, therefore, could not
recover against the railway company. The statute does not intend that
railway companies should be insurers against any accident which may oc-
cur by reason of their trains. Some duty is cast upon the owners of all
animals that are likely to be placed in danger by reason of the trains, aad
they must take reasonable precautions to prevent them getting at large,
so that accidents may not happen to them. The facts are sufficiently set
out in the judgment of Wetmore. C. J.
Murray T. Can. Pae. Ey. Co., 7 Can. Ry. Cas. 351, 7 West, LJL 50
(Sack.).
[Referred to in Clayton T. Can. North. Ry. Co., 17 Man. LJR. 437, 7
Can. Ry. Cas. 355.]
XBGLIGEXCE OF owxtn OBLIGATION TO FEXCR.
When it is proved that animals killed by a train of a railway company
had been allowed to go at large on a public road through the negligence
or wilful act or omission of the owner or his agent, and. in consequence
thereof, got upon the right of way through a defect in the railway fence,
sobs. 4 of a. 237 of the Railway Act, 1903. (s. 294 of the Railway Act.
1906 t, protects the company from any claim for damages, although the
company had failed to observe the requirement of s. 199 Is. 254 of 1906)
by neglecting to keep the fence along the right-of-way in proper repair.
S. 237 deals completely with the question of animals at large getting upon
the railway track and being killed or injured, and. therefore, s. 294
(a. 427 of 1906 being only of general application, cannot be interpreted
so as to make the company liable in a case in which, by a. 237, it is ex-
pressly relieved from liability, llowell. C.J.A.. dissenting. [Murray v.
Can. Pac. Ry. Co. (19071. 7 W.LJL 50: Becker v. Can. Pae, Ry. Co.
CUM), 7 Can. Ry. Cas. 29. and Bourassa v. Can. Pac. Ry. Co. (1906),
7 Can. Ry. Cas. 4i. followed.]
Clayton v. Can. Northern Ry. Co., 7 Can. Ry. Cas. 355, 17 Man. LJL
426.
COMPETEXT FEKSOX IXFAXT IX CHARGE:
S. 294 of the Railway Act. 1906. enacts that "no horses . . . or
other cattle shall be permitted to be at huge upon any highway within
half a mile of titst intersection with any railway at rail level, unless
... in charge of some competent person ... to prevent their loiter-
ing ... on such highway ... or straying upon the railway. If
the horses ... of any person which are at huge contrary to ...
this section are killed ... by any train at such point of intersection
. . . he shall not have any right of action against any company in re-
spect of the same being killed or injured.'* The plaintiff, a farmer, sent
a hid about ten years old to take fourteen cows along a public highway
and across the defendants' line of railway. The trains of the defendants ran
over and killed four of the cows, and the jury found negligence on the
part of the defendants, and also that the boy was a "competent person"
within the meaning of the above section: Held, that the plaintiff was
entitled to judgment.
Sexton v. Grand Trunk Ry. Co.. 9 Can. Ry. Cas. 119, 18 (XLJL 202.
404 FATAL ACCIDENTS ACT.
DUTY TO FENCE ANIMAL GETTING ON TRACK OPEN GATE AT FARM CROSS-
ING.
If a gate in the fence at a farm crossing of a railway is left open by the
person for whose use the crossing is provided or any of his servants or
by a stranger or by any person other than an employee of the company,
the company is relieved by the s. 295 of the Railway Act, 190(}, from the
liability imposed by subs. 4 of s. 294 to compensate the owner for the loss
of an animal at large without his negligence or wilful act or omission get-
ting upon the railway track through such gate and killed by a train. Per
Perdue, J.A. : Some negligence or breach of statutory duty on the part
of the railway company in respect of such gate would have to be shewn
to render the company liable in such a case. Per Howell, C.J.A.: If rail-
way fences or gates are torn down or get open by the action of the elements
or by some accident or default not caused by the act of man, and an animal
thereby gets upon the track and is killed, none of the exceptions in s. 295
would apply, and the company would be liable under subs. 4 of s. 294.
Nonsuit ordered, reserving right of plaintiff to bring another action.
[Flewelling v. Grand Trunk Ry. Co. (11)06), 6 Can. Ry. Cas. 47, followed.]
Atkin v. Can. Pac. Ry. Co., 10 Can. Ry. Cas. 204, 18 Man. L.R. 617.
ANIMAL KILLED ON TRACK NEGLIGENCE LIABILITY.
The plaintiff's son, a boy of only 12, but a "competent person," was
leading the plaintiff's horse along a highway parallel with the defendants'
railway, when the horse became frightened, broke away from the boy. left
the highway, crossed lots, and got upon the defendants' tracks, where it
was killed by one of the defendants' trains. The facts, as found, were:
(1) that there was no negligence on the part of the train crew; (2) that
the animal did not get at large through the negligence or wilful act of the
owner or custodian of the animal; (3) that the lands on either side of the
railway at the place where the horse was killed were not enclosed or
either settled or improved, and there were no fences, gates, or cattle-
guards: Held, upon consideration of ss. 254, 294, 295 of the Railway Act,
1906, that, in these circumstances, the law imposed no duty on the defend-
ants, and thev were not liable to the plaintiff for the loss of the horse.
Seigle v. Can. Pac. Ry. Co., 12 Can. Ry. Cas. 463, 13 W.L.R. 627.
DEFECTIVE FENCE NEGLIGENCE WILFUL ACT OF OWNER.
Action for the value of two horses alleged to have been killed by one
of the company's trains through its neglect to fence its right of way at
the place in question. The horses escaped from the pasture field by reason
of the defective fence (slash fence) with which it was enclosed; strayed
on to the unfenced right-of-way of the railway company and were killed
by a passing train: Held (1), that, under subs. 4 of s. 237 of the Rail-
way Act, 1903, the defendant escaped liability through the wilful act or
omission of the owner of the animals in question by having a defective
fence. (2) That, therefore, the exception in subs. 4 of s. 254, relieving a
company from fencing did not need to be decided. [Bourassa v. Can. Pac.
Ry. Co., 30 Que. S.C. 385, 7 Can. Ry. Cas. 41, followed.]
Renaud v. Can. Pac. Ry. Co., 13 Can. Ry. Cas. 358.
WILFUL ACT OR OMISSION OF OWNER DEFECTIVE FENCES.
Action to recover the value of cattle found killed on the defendant's
railway. The plaintiff's cattle escaped by knocking down or jumping
over a fence of insufficient strength and height from one pasture field to
another, and from there got through the highway fence part of which
FATAL ACCIDENTS ACT. 403
was constructed of brash with poles; thence along the highway, got over
the cattle guards at the crossing and were killed by a passing train. The
plaintiff's son admitted that said cattle had got out to the highway more
than once through the fences which be had fixed at different tunes in
different places after they had got out: Held, that the cattle got at large
through the wilful art or omission of the plaintiff by reason of his fences
both of the pasture field and at the highway being insufficient and in-
secure and he cannot recover their vatae from the defendant.
Wilkinson T. Grand Trunk By. Co. (Ont.i-, 14 Can. By. Cas. 23C
LJAKTUTT FOB ANIMALS KILLED ox TRACK FENCE* Wn_m. ACT OF
The liability of a railway company, under sub**. 4. 5 of *. 294 of the
Railway Act. 1906. for damages in the case of M * l at large killed or
injured by a train is not limited to territory where the company is by s.
254 obliged to erect suitable fences, and the company can only escape such
liability by shewing that the animals got at huge through the negligence
or wilful act or omission of the owner or hi* agent or the custodian of
such -""* 1 - or his agent. The Railway Act of 1903 changed the law in
this respect. [Bank of England T. Vagliano. [1891] A-C_ per Lord Her-
sehell at p. 144, followed as to the interpretation of a statute intended to
he a code of law on the subject referred to.] The plaintiff had for two
years been accustomed to turn his horses out of the stable in the winter
to go without halters to a watering trough about fifteen yards away and
driving them back to the stable after drinking. On the occasion in ques-
tion. the plaintiff and his hired man were carrying out the usual routine
when three of the horses after drinking, without their noticing it. walked
off in the direction of the road instead of returning to the stable. When
the fourth had finished drinking it started to walk after the others. The
plaintiff' observed this and immediately tried to intercept the horses, but
the three escaped and, although the plaintiff followed them up at once and
did his best to recover them, they eventually got on to the defendant's
railway track and were killed by a train on a bridge: Held, that the
plaintiff was not guilty of negligence or any wilful act or omission in the
matter so as to disentitle him to recover. [Arthur v. Central Ontario Rv.
COL. 11 OJLR. 537. 5 Can. By. Cas. 318; Bacon v. Grand Trunk By. Co..
12 OJLJL 196, 5 Can. By. Cas. 325; Lebu v. Grand Trunk By. Co.. 5 Can.
By. Cas. 329, 12 O.L.B. 590; Carrothers v. C-P.B. COL, 16 Man. T^K. 323. 6
Can. By. Cas. 15. 39 Can. S.CJL 251. T Can. By. Cas. 23, and Becker v. Can.
Pae. By. Co^ T Can. By. Cas. 29. 5 W.LB. 569. followed.]
Parks v. Can. Northern By. Co. (Man.;, 14 Can. By. Cas. 247.
[Distinguished in Hupp v. Can. Pae. By. COL, 17 Can. By. Cas. 66, 16
DUL 343.]
XECUEEXCK OF owxnt.
A railway company operating under and subject to the Railway Act.
1906, is liable for killing horses at huge upon the railway line, unless the
railway company establishes under s. 294 4. that the animals got at
huge through the negligence or wilful act of the owner or his agent or
the custodian of such animals or his agent, or unless the circumstances.
as to the manner in which the horses came to be at large are within the
special exceptions from liability stated in ss. 294, 295.
Bogers T. Grand Trunk Pae." By. Co., 2 D.L.B. 683, 22 Man. L.R. 349.
[Referred to in Bowe v. Quebec Central By. Cou 3 D.LR. 175.]
TO ACTUALS AT LAKE.
Under a. 294 of the Railway Act, 1906, as amended by 9-10 Edw. VTL c.
400 FATAL ACCIDENTS ACT.
50, s. 8, imposing a liability on a railway company for injuries to animals
'at large" on its right-of-way, the onus of proving negligence on the part
of the owner of the animal in allowing a horse to be "at large" is upon the
railway company.
Stitt v. Can. North. Ry. Co., 15 Can. Ry. Cas. 333, 23 Man. L.R. 43, 10
D.L.R. 544.
DKFECTIVE FENCE ANIMALS AT LARGE UNDER BY-LAW.
Cattle turned out to graze on the highways as authorized by a munici-
pal by law are not "at large through the negligence or wilful act or omis-
sion of the owner" so as to relieve a railway company, under s. 294 (4)
of the Railway Act, 1906, as amended by 10 Edw. VII. c. 50, s. 8, from
liability for running down animals that came upon its right-of-way at a
place other than a highway crossing, by reason of defects in the fencing
which the railway company was under a statutory obligation to maintain.
Greenlaw v. Can. North. Ry. Co., 15 Can. Ry. 'Cas. 329, 12 D.L.R. 402,
23 Man. L.R. 410.
[Distinguished in Doble v. Can. Northern Ry. Co., 19 Can. Ry. Cas.
312, 27 D.L.R. 115; followed in Koch v. G.T.P. Branch Lines. Co., 21 Can.
Ry. Cas. 136, 32 D.L.R.. 393.]
INJURY TO ANIMALS BY TRAINS LACK OF PROPER FENCE OWNER'S NEGLI-
GENCE.
The fact that the owner of an animal turns it out to pasture on his
own land beside a railway track which a company ha.d not fenced as
required by law, does not shew that the animal was at large through negli-
gence or wilful act of the owner so as to relieve the company from liability
under s. 294 (4) of the Railway Act, 1906, for injuries inflicted on it
while on the right-of-way; the company's omission to construct a fence
did not deprive the adjoining owner of the right to turn his animals out
to pasture on his own land. [McLeod v. Can. Northern Ry. Co., 18 O.L.R.
(i!6, 9 Can. Ry. Cas. 39, followed.]
Palo v. Can. Northern Ry. Co., 16 Can. Ry. Cas. 1, 29 O.L.R. 413, 14
D.L.R. 902.
INJURIES TO ANIMALS CONTRIBUTORY NEGLIGENCE ONUS.
Under the provisions of subss. 4, 5 of s. 294 of the Railway Act, 1906, the
onus of establishing that horses were at large through the negligence of
their owner or custodian, is upon the railway company seeking to avoid
liability for their getting upon the right-of-way and being run down by a
train. The onus of proof upon the defendant company, under subss. 4 and
5 to establish negligence against the plaintiff in an action for injury to
iinimals on the track, is not displaced by a finding that the plaintiff was
careless in looking after the injured animals, if the nature of such care-
lessness was not determined.
Maves v. Grand Trunk Pacific Ry. Co., 16 Can. Ry. Cas. 9, 14 D.L.R. 70.
NEGLIGENCE OF OWNER UNENCLOSED LANDS.
Where a horse got at large from unenclosed lands by reason of the
negligence of its owner in not properly confining it he cannot recover
damages for its loss, although the animal wanders a considerable distance
before getting upon the right of way of the defendant. [Becker v. Can.
Pac. Ry. Co. 7 Can. Ry. Cas. 29, followed.]
Wallace v. Grand Trunk Ry. Co., 17 Can. Ry. Cas. 64.
LIABILITY OF RAILWAY KILLING HORSE ON TRACK.
Where a horse which had been turned out to pasture on unfenced
FATAL ACCIDEXTS ACT. 407
range lands adjoining a railway took fright on being driven into camp by
the owners employee and escaped from his control and was killed by i
train, the owner has no right of action against the railway company under
s. 294, subs. 4, of the Railway Act 1906 (as amended 9 t 10 Edw. VII.
c. 50, s. 8), for, if he had the landowners permission to pasture on the
lands, the hone while thereon was not "at large," and. if he had not such
permission, the horse was put "at large" by the plaintiff's wilful act iu
pasturing the horse there within the exception of the enactment.
Hupp v. Can. Pac. Ry. Co.. 17 Can. Ry. Cas. 66, 16 DUEL 343.
[McLeod T. Canadian Northern R. Co., 18 O.L.R. 616: Parks T. Can.
Northern R. Co., 14 Can. Ry. Cas. 247, 23. Man. LcR. 103, distinguished;
see also as to animals at large, Rogers T. Grand Trunk R. Co., 2 D.L.K.
683.]
INJURIES TO ANIMALS OS TRACKS BY TRAINS.
The evident purpose of Parliament to deal with the whole question of
a railway company's liability for injury to animals at large by the
provisions of s. 294 of the Railway Act, 1906, as amended, constitutes s.
294 a specific code laying down a general statutory liability and pro-
riding a special defence, thereby precluding the plaintiff, in such case?,
from resting liability upon a breach of s. 254 read with the general pro-
visions of s. 427. [Clayton v. Can. Northern Ry. Co., 7 Can. Ry. Cas.
355. 17 Man. L.R. 433, followed.]
Sporle v. Grand Trunk Pacific RT. Co., 17 Can. Ry. Cas. 71, 17 D.L.R.
367.
INJURY TO ANIMALS BY TRAINS CATTLE GUARDS GATES "TTNUSED HIGH-
WAY."
The Railway Act. 1906, does not forbid, either by s. 254 or otherwise,
the erection of a farm crossing in lien of cattle guards at a road allowance
which is unused as a highway and is in fact used as farm land, and where
a railway company and an adjoining farm owner concur in so treating
an "unused highway* 1 the farm owner is bound under s. 255 to keep the
gates on each side of the railway closed when not in use. and damage
to the owner's animals through his own neglect to perform such statutory
duty is not recoverable from the railway company, no negligence on the
part of those in charge of the train being shewn.
Brook T. Can. Pac, Ry. Co., 18 Can. Ry. Cas. 78, 18 D.LR. 184.