The Louisville, New Albany and Chicago R, W. Co. v. Cahill. lot of hogs along a road, when some of them escaped through a gap in the railroad fence, and went upon the track. The plaintiff and his men pursued them and tried to get them back, but before they could do so a train came along and killed some of them. The possession of the hogs by the plaintiff was prima facie evidence of his ownership thereof. There is no error in the record. The judgment below is affirmed, with costs. THE LOUISVILLE, NEW ALBANY AND CHICAGO R. W. Co. v. CAHILL. RAILROAD.-Killing Stock.-Defence.-Contributory Negligence.—Contributory negligence is no defence to an action under the statute, against a railroad company, for killing stock at a point on its road not securely fenced. SAME.-Stock Running at Large in Violation of City Ordinance.-An answer in such action, that the plaintiff had negligently, or in violation of a city ordinance, allowed the stock killed to run at large within the limits of an incorporated city, and in the vicinity of the defendant's railroad, amounts only to an answer of contributory negligence, and is insufficient on demurrer. From the Putnam Circuit Court. D. R. Eckels, for appellant. D. E. Williamson and A. Daggy, for appellee. NIBLACK, J.-This was a suit by George Cahill, against the Louisville, New Albany and Chicago Railway Company, for killing two horses at a point on the line of the defendant's railway, at which it was not securely fenced. The defendant answered in three paragraphs: 1. The general denial; That the plaintiff turned his said horses loose upon The Louisville, New Albany and Chicago R. W. Co. v. Cahill. the streets, highways and unenclosed commons in and about the city of Greencastle, without any care or control over such horses, in violation of an ordinance of said city, by reason of which said horses wandered and strayed upon the defendant's railway track and were killed, without any negligence on the part of the defendant, such killing being the result of gross negligence on the part of the plaintiff'; 3. That the defendant's road passes through a portion. of the city of Greencastle, where the plaintiff resides, and. that the plaintiff voluntarily turned the horses loose near said. road, and permitted them go upon and remain on said road, where engines and cars were passing and repassing, by means of which the horses were run over and killed, being the result of gross negligence on the part of the plaintiff, and without the fault of the defendant. Demurrers were sustained to the second and third paragraphs of the answer. There was a trial, a verdict for the plaintiff, and judgment on the verdict. Errors are only assigned upon the decisions of the court sustaining the demurrers to the second and third paragraphs of the answer. It has been frequently decided by this court, that, where a railroad company is sued for killing animals at a point on its road where it might be, but is not, securely fenced, contributory negligence is no defence to the action. The Toledo, etc., R. W. Co. v. Cory, 39 Ind 218; The Toledo, etc., R. W. Co. v. Cary, 37 Ind. 172; The Jeffersonville, etc., R. R Co. v. Ross, 37 Ind. 545; The Toledo, etc., R. W. Co. v. Weaver, 34 Ind. 298; The Jeffersonville, etc., R. R. Co. v. O'Connor, 37 Ind. 95; The Cleveland, etc., R. W. Co. v. Crossley, 36 Ind. 370; The Bellefontaine R. W. Co. v. Reed, 33 Ind. 476; The Indianapolis, etc., R. R. Co. v. Parker, 29 Ind. 471. The second and third paragraphs of the answer before The Jeffersonville, Madison and Indianapolis R. R. Co. v. Foster. us were but answers of contributory negligence in different forms. The court, therefore, did not err in sustaining the demurrers to those paragraphs. The case does not fall within the rule laid down in the case of Knight v. The Toledo, etc., R. W. Co., 24 Ind. 402, as in that case, it was held that the defence amounted to more than contributory negligence. See, also, The Jeffersonville, etc., R. R. Co. v. Dunlap, 29 Ind. 426. The judgment is affirmed, with costs. THE JEFFERSONVILLE, MADISON AND INDIANAPOLIS R. R. Co. v. FOSTER. RAILROAD.-Negligent Killing of Stock.-Contributory Negligence.-Degrees of Negligence.-Instruction.—In an action against a railroad company, for the alleged negligent killing of stock belonging to the plaintiff, by the defendant's employees, the court instructed the jury, that, to constitute contributory negligence on the part of the plaintiff, in allowing said stock to run at large, he must have knowingly suffered his stock to habitually run at large in the immediate vicinity of the place where it was killed; and that the plaintiff "can not recover, although he may have been guilty of less negligence" than the employees of the defendant. Held, that the instruction was erroneous. From the Johnson Circuit Court. T. W. Woollen, G. M. Overstreet and A. B. Hunter, for appellant. S. P. Oyler, F. S. Staff and L. Short, for appellee. BIDDLE, J.-Action before a justice of the peace, by the appellee, against the appellant, for killing his mare and colt, by running a locomotive and train of cars against and over them upon the railroad track of the appellant. The case The Jeffersonville, Madison and Indianapolis R. R. Co v. Foster. was appealed from the judgment of the justice to the circuit court, wherein the complaint, consisting of two paragraphs, was amended, and a demurrer to each paragraph overruled, to which ruling exceptions were reserved. Answer, trial by jury, verdict and judgment for the appellee. A motion for a new trial and a bill of exceptions present the rulings of the court in giving and refusing to give instructions to the jury. Over the objections and exceptions of the appellant, the court instructed the jury as follows: "3. If the plaintiff knowingly permitted his mare and colt to habitually run at large in the immediate vicinity of the place where they were killed, and where he knew that trains of cars were running daily, he was guilty of such. negligence as would prevent his recovery on the first paragraph of the complaint. It is not a question which was the more negligent; if the company's servants ran their train in a careless and negligent manner, and the defendant did an act which contributed to the injury, such as knowingly suffering his stock to habitually run at large in the immediate vicinity of the place where they were killed, he can not recover, although he may have been guilty of less negligence than the company's servants." This instruction is wrong. It was applied to a paragraph of the complaint, which charged the killing by negligence, and the question under that paragraph was one solely of negligence. The instruction tells the jury, that, to constitute negligence on the part of the appellee, and prevent his recovery, he must have "knowingly suffered his stock to habitually run at large in the immediate vicinity where they were killed." The appellee might have been habitually negligent, but not negligent at the given time; if so, he might recover. Or he might not have been habitually negligent, yet negligent at the given time; if so, Hartman v. Aveline. and his negligence materially contributed to the injury, he could not recover. The instruction also tells the jury, that the appellee "can not recover, although he may have been guilty of less negligence than the company's servants." This implies that he may be guilty of some negligence and still recover. Negligence on the part of the appellee need not to have been habitual, nor need it have any degree of comparison with the negligence of the appellant, to prevent his recovery. If he was guilty of any act of negligence, in any degree, which materially contributed to the injury complained of, he can not recover, although his negligence was less in degree than the negligence of the appellant, which caused the injury. The judgment is reversed, at the costs of the appellee ; cause remanded, with instructions to sustain the motion for a new trial, and for further proceedings. 63 344 136 321 63 344 137 265 138 130 63 344 141 545 63 344 188 US718n HARTMAN v. AVELINE. SUPREME COURT.—Assignment of Error.—Special Finding.-Where an ex- FUGITIVE FROM JUSTICE.-Constitution and Laws of the United States.— ( |