into the plaintiff's close, and it was alleged as consequential damage that the plaintiff's cattle were infected. [CHANNELL, B., referred to Singleton v. Williamson, 7 H. & N. 410.] As regards the scienter, there was at most a mere scintilla of evidence. The facts proved are equivocal, and do not establish the defendant's knowledge prior to the occurrence of the mischief. . . .

Huddleston and Harrington, in support of the rule. First, the fair prima facie presumption from the evidence is, that the defendant was cognizant of the condition of his sheep, before the mischief occurred.... Secondly, assuming there was evidence of the scienter, it was unnecessary to aver or prove negligence. The case of Hill v. Balls, 2 H. & N. 299, has been relied on by the defendant, but there the purchase of the glandered horse by the plaintiff was a voluntary act, and the rule of caveat emptor was applicable. In Anderson v. Buckton, 1 Stra. 192, the decision of the Court proceeded upon the ground that what was there laid as consequential damage might have formed the subject of a distinct action on the case. The authorities which have been referred to, and which establish the proposition that in the case of mischievous propensities, negligence will be presumed where a scienter is shown, apply equally to diseased animals. The injury results in each case from physical agency, though with different effects. . . .

POLLOCK, C. B., now said: We are all of opinion that the rule to set aside the nonsuit and for a new trial ought to be discharged. . . . I am of opinion that, a scienter being essential to support the action, and there being no evidence of it, my brother CHANNELL was perfectly right in nonsuiting the plaintiff.

BRAMWELL, B. I am of the same opinion. The ruling was correct, because there was no negligence, if there was no knowledge upon the part of the defendant. It is, no doubt, extremely difficult. to separate the two considerations of knowledge and negligence, and to say that either of them would be sufficient without the other. But I think it enough to say there was no evidence that, at the time when the injury occurred, the defendant knew that the sheep were in a diseased condition, so as to constitute negligence in keeping them. . . Rule discharged.

507. GRIMES v. EDDY

SUPREME COURT OF MISSOURI. 1894

126 Mo. 168, 28 S. W. 756

APPEAL from Monroe Circuit Court. Hon. T. H. BACON, Judge. Affirmed as to first count. Reversed as to second count.

Action to recover the value of a cow alleged to have died from Texas fever contracted from cattle shipped over the Missouri,

Kansas, & Texas Railway, while the same was being operated by the defendants as receivers. The suit was commenced before a justice of the peace in Monroe County, and appealed to the Circuit Court. The statement is in two counts. . . .

It was by stipulation admitted that the cattle, which it is claimed caused the injury, were shipped from Sinton, in San Patricio county, Texas, over a line of railroad connecting with that operated by the defendants, at West Point, Texas, and then delivered to the defendants, consigned to Chicago, Illinois. Said cattle were shipped May 16, 1890, and reached Paris, Monroe County, on the morning of May 21, 1890, while en route to Chicago. As the cars going eastward toward the depot passed over the switch, they were wrecked. . . . One of the cattle cars was broken at one end, and some of the cattle escaped in this way. The cars were thrown over to one side, and the cattle all thrown together at one end, and it became necessary to remove them speedily to prevent them smothering. This was done by opening the side doors, pulling them out with ropes, etc. The town of Paris lies nearly wholly south of the railway. As the cattle escaped from or were removed from the wrecked cars, they were scattered along the right of way south of the track and between the wreck and the road crossing west of the wreck about one hundred and fifty feet. Plaintiff's evidence showed no efforts of anyone, save the trainmen and railroad employees, to stop the cattle from wandering off. They did nothing with the cattle that night, as they were wild, vicious, and unmanageable. By daylight the next morning the cattle had wandered out over the streets of Paris, and upon open grounds, some going as far as a mile in the country, and it was 10 o'clock A. M. before they were all driven into the railroad stock pens by horsemen. . . . As soon as they could do so, defendants had the cattle collected and placed in the stock pens of the railroad company.

At the close of the plaintiff's evidence, defendants interposed a demurrer thereto, which was overruled. Under the instructions of the Court, there was a verdict for plaintiff on each count in the complaint. Defendants then filed a motion for new trial and in arrest of the judgment, which being overruled, they appealed to this court.

Jackson & Montgomery, for appellants. (1) The Court erred in not sustaining the defendant's demurrer under the first count in the petition, because the evidence wholly failed to sustain the aver ments of the petition in these three particulars: First. That the cattle transported and alleged to have been permitted to escape, etc., were infected with a deadly disease. Second. That the defendants knew the fact. . . . Third. That they negligently permitted the cattle to escape from their custody or control. . . .

R. N. Bodine and Stocking & Alexander, for respondent. (1) Any

one who allows diseased or infected animals to run at large, knowing them to be diseased or infected, is liable for the damage or loss which such animals may cause by reason of such disease or infection. . . . (2) Much more, if defendants had in their care or control animals known to them to be affected with a contagious disease, and negligently allowed them to wander upon the streets of Paris, by reason of which plaintiff suffered damage, then the defendants are liable therefor.

BURGESS, J. 1. The first contention of defendants is that the demurrer to the evidence under the first count in the statement should have been sustained, for the reason that it failed to support the averments in the statement in that it failed to show that the Texas cattle which were permitted to escape, were infected with a dangerous or deadly disease, and that the defendants knew it, and that they negligently permitted the cattle to escape from their custody or control.

The cause of action stated in the count now under consideration being one at common law, before plaintiff was entitled to recovery thereunder it devolved upon him to show, not only that the Texas cattle were infected with a dangerous and deadly disease, microbe or parasite, and that the disease was communicated to his cow, by reason of which she died; but it devolved upon him to show that the defendants knew, or that it was a notorious fact, that all Texas cattle were so diseased or so infected, and that it was by their negligence, or that of their employees, that they were permitted to escape from their custody or control. While the proof did not show that the cattle were themselves, in fact, diseased, it is of general notoriety that all cattle in that part of Texas from which these cattle were shipped are infected with a microbe or germ of disease which is taken in by Missouri cattle by injection, that is, taken into the system through the stomach by eating grass over which Texas cattle have travelled, or by drinking water from pools or streams through which they have passed and deposited the germ by dropping, or from ticks. Plaintiff undertook to fix notice on defendants of the infection of the cattle by proof of notoriety of the fact that all Texas cattle are affected with what is called Texas fever, and will impart that fever to native cattle under certain conditions.

In respect of animals of a wild nature, such as beasts of prey, or animals by nature vicious, the owner is responsible for any damages occasioned by them, whether or not he knew of their habits or disease. Canefox v. Crenshaw, 24 Mo. 199. While at common law it was the duty of every man to restrain his cattle within his own inclosure and for failing to do so he was liable for their trespasses and for injuries resulting from disease communicated by them, whether he voluntarily permitted them to go at large or not (Cooley on Torts (2 Ed.), 397), as to domestic animals, the common law

does not fix any liability on the owner for damages done by them when at large on the ground of negligence, unless it be proven that the owner knew that the animals were mischievous or dangerous. Lyke v. Van Leuven, 4 Denio, 127; Cooley on Torts (2 Ed.), 341, 343; Dearth v. Baker, 22 Wis. 73; Vrooman v. Lawyer, 13 Johns. 339; Railroad v. Finley, 38 Kan. 550; Patee v. Adams, 37 Kan. 133. In Bradford v. Floyd, 80 Mo. 207, which was an action for damages occasioned to plaintiff's cattle by contact with what were known as Texas cattle, it was held that, while the evidence showed that the defendant could be held liable for damages caused by disease communicated by them to plaintiff's cattle, it must be shown that defendant knew that his cattle were diseased. The same rule was announced in Railroad v. Finley, 38 Kan. 550, and Patee v. Adams, 37 Kan. 133.

Since those cases were decided, scientific investigation has demonstrated and it is now a matter of general information or knowledge, that Texas cattle are not, in fact, diseased themselves, so as to render them unhealthy for food, but that all Texas cattle are infected in their systems with a parasite or germ, which is harmless to them, but which when taken into the stomach by native cattle produces what is known as Texas fever. . . . This peculiar characteristic, and its notoriety, is recognized by this and many other States, as is shown by the various legislation with respect thereto as well as by regulations in the markets of the country which require this class of cattle to be kept separate from others. From these considerations it would seem that the case of Bradford v. Floyd, supra, in so far as it holds that Courts will not take judicial notice of the fact that Texas cattle have some contagious or infectious disease communicative to native cattle should be overruled.

Plaintiff was permitted to prove, over the objections of defendants, that it was a matter of universal knowledge that Texas cattle were infected with an infectious disease communicable to native cattle, and while, from what has been said, such proof was entirely unnecessary, it is impossible to see how defendants could have been prejudiced thereby. As the railway company owed no duty to the plaintiff, what produced or caused the wrecking of the train was of no consequence, except for the purpose of showing how the cattle escaped from the custody of defendants or their employees; the inquiry being whether the escape was because of their carelessness or negli gence. If so, as it was a notorious fact that the cattle were infected with microbes or parasites which were liable to communicate, to domestic cattle travelling over the ground after them, or eating grass over which they have passed or their droppings had fallen, the Texas fever, and the plaintiff's cow had contracted the disease in that way, from which she died, the plaintiff is entitled to recover. As to whether or not the cattle were permitted to escape from the

custody of defendants' employees after the wreck, by reason of their carelessness or negligence, the question was one to be passed upon by the jury under proper instructions from the Court, and we are not prepared to say that there was not sufficient evidence upon which to predicate such instructions.

The instructions that were given under this count in the complaint presented the law of the case very fairly to the jury.

2. The second count of the statement is predicated upon sections 953 and 954, Revised Statutes, 1889: .

"No railroad companies or owners of a steamboat, or any other company or person, shall bring into or transport through this State, or from one part thereof to another, any Texas, Mexican, Cherokee or Indian cattle affected with what is commonly known as Texas or Spanish fever. . ."

The effect of the statute is to obstruct interstate commerce, and to discriminate between the property of one State and that of citizens of other States, in so far as it prohibits the transportation of Texas, Mexican, Cherokee, and Indian cattle through the State [and it is to this extent invalid.] . . .

The judgment as to the first count is affirmed. As to the second count, the judgment is reversed. All concur. BARCLAY, J., concurs in the result.1

1 [TOPIC 3. PROBLEMS:

The defendant's dog trespassed on the plaintiff's land, ran after the plaintiff's mare, barking at her. The mare ran away, and in jumping a fence fell and broke her neck. Is the defendant responsible per se? (1880, Doyle v. Vance, 6 Vict. L. R. 87.)

The defendant's hogs were running unlawfully in the highway. The plaintiff's horses took fright at the hogs, ran away and were injured. Is the defendant responsible per se? (1904, Heist v. Jacoby, 71 Nebr. 395, 98 N. W. 1058; 1899, Purinton v. Somerset, 174 Mass. 556, 55 N. E. 461.)

"I am by no means sure that if a man kept a tiger, and lightning broke his chain, and he got loose and did mischief, the man who kept him would not be liable." (Per Bramwell, B., in Nichols v. Marsland, 1875, L. R. 10 Exch. 255.) Is this sound?

Defendant owned a greyhound, and allowed it to go with him to a race-track. The plaintiff was a jockey in the races, and just as he was riding on the homestretch of a race, the dog rushed out at the plaintiff's horse, and caused it to stumble and fall; the following horse struck the falling horse, which fell upon the plaintiff and injured him severely. By rule of the racing association, no dog was to be brought loose on the premises. Is the defendant responsible? (1909, McClaim v. Lewiston I. F. & R. Ass'n & Vollmer, 17 Ida. 63, 104 Pac. 1015.)

A

The defendant knowingly owned sheep which had the scab disease. statute made the owner of sheep liable for disease communicated, if the owner knew the sheep to be diseased. The sheep escaped into the plaintiff's lot through a defective fence maintainable by the defendant. If the defendant's sheep originally caught the disease from one of the plaintiff's sheep which had strayed in, is the defendant responsible? (1876, Herrick v. Gary, 83 Ill. 85.)

Defendant's cow was unlawfully alone in the highway, sitting down. Plaintiff approached, driving. The cow arose, and the plaintiff's horse took fright