Page:North Dakota Reports (vol. 2).pdf/474

 horse been lawfully upon the highway in charge of plaintiff or his servant, and accidentally escaped from control, and such fresh pursuit had been made, he would not then have been a trespasser. But it is claimed that the rule is different where the animal escapes from the owner's premises onto the highway. The point is technical, and without deciding it we will assume that the horse was trespassing. We will admit also, without deciding, that defendant owed no duty to this plaintiff to be on the lookout for trespassing animals, and that as to such animals it owed no duty to sound the whistle or ring the bell or slacken the speed of its train upon approaching a public crossing, unless such trespassing animal had been seen by the persons operating the train, and its peril was, or under the circumstances should have been, known by them. Nor would it then be the duty of the defendant to sound the whistle or ring the bell if such signals would be as likely to increase as to diminish the peril of the animal, nor to slacken the speed of the train, if to do so would endanger the safety of the passengers upon the train.

It is urged that the presense of the horse upon defendant's right of way, of itself and as a matter of law, establishes contributory negligence upon the part of plaintiff of such a character as to defeat a recovery; and the case of Hance v. Railroad Co., 26 N. Y. 428, is cited to sustain the point. Other cases might have been cited. Of the case from New York, Mr. Beach, in his work on Contributory Negligence, at page 241, says: It "stands alone in the New York Reports. The rule in that state is clearly the reverse of this." The rule, however, in that state, as we understand it, is based upon a statute requiring railroad companies to fence their right of way. The negligence chargeable to plaintiff is not actual. It is such negligence as exists irrespective of the means by which the animal becomes a trespasser. Plaintiff may have been overpowered and bound hand and foot, and his barn door broken down, and his horse turned into the highway to stray upon defendant's right of way; yet none the less the horse would have been a trespasser, and plaintiff chargeable with that negligence which arises from the mere presence of the animal upon the premises of another, and