Page:North Dakota Reports (vol. 2).pdf/466

 James H. Bostwick, Plaintiff and Respondent, v. The Minneapolis & Pacific Railway Company, Defendant and Appellant.

Railroad Companies—Stock Killing—Negligence of Owner-Proximate Cause.

1. In this state the common law rule relative to domestic animals is in force, and every man is bound, at his peril, to keep his stock upon his own premises, and is liable for all damages that his stock may do on the premises of another, whether fenced or unfenced.

2. But the fact that plaintiff's horse was a trespasser upon the railroad track of defendant, without any actual fault of plaintiff, did not relieve defendant, after the presence and peril of the horse were known to it, from the obligation to exercise ordinary care in the management of its trains to prevent an injury to the horse.

3. Where one party has been negligent, and a second party, knowing of such antecedent negligence, fails to use ordinary care to prevent an injury which the antecedent negligence rendered possible, and the injury follows by reason of such failure, the negligence of the second party is the sole proximate cause of such injury.

APPEAL from district court, Richland county; Hon. W. S. Lauder, Judge.

Newman & Resser, for appellant. McCumber & Bogart, for respondent.

Action by James H. Bostwick against the Minneapolis & Pacific Railway Company to recover damages for an injury to a horse. Verdict and judgment for plaintiff. From an order refusing a new trial defendant appeals. Affirmed.

Newman & Resser, for appellant:

The horse was a trespasser at the time at which, and the place where the accident occurred. Railroad Co. v. Munger, 5 Denio 265; Robinson v. Railroad Co., 44 N. W. Rep. 779; Neiemann v. Railroad Co., 44 N. W. Rep. 1049; Railroad Co. v. Kerr, 26 N. E. Rep. 316; Railroad Co. v. Kerr, 12 8. W. Rep. 329; Palmer v. Railroad Co., 33 N. W. Rep. 707; Railroad Co. v. Godfrey, 71 Ill. 500. The plaintiff is not entitled to recover