maintenance of guards through the night to prevent injuries to their fences, and, if the fence is generally sufficient, the fact that in one place it is not so as to turn stock is no proof by itself that the injury resulted from the company's not having repaired the weak spot or closed the gap; the burden of proof that the neglect of the company is the cause of the injury being on the party complaining of the injury, he must show that the animal got through the gap or over the weak place, the value of the testimony of the existence of such gap or weak spot being for the determination of the jury.1 1 Shearman & Redfield on Negligence, 461. "Only reasonable or ordinary diligence is required of railroad companies in the maintenance of their fences. They are allowed a reasonable time for repairs, and are not bound to keep watch all night, for example, to guard against injuries to their fences. If within such reasonable time the fence is repaired, the company is not liable, under the statute, for cattle entering through the breach. If the fence is for the most part maintained, but is defective in particular places, the owner of the injured cattle must give some proof that they entered at a defective part of the fence.” (Lemon v. R. R. Co. 32 Iowa, 151; Chicago Etc. R. R. Co. v. Barrie, 55 Ill. 226; Ill. C. R. R. Co. v. Dickerson, 27 Ill. 55; Morrison v. R. R. Co. 32 Barb. 568.) But in some States a high degree of diligence is required. (Antisdel v. R. R. Co. 26 Wis. 145.) The latest cases, however, are to the effect given in the text. (Perry v. R. R. Co. 36 Iowa, 105.) "Having built the fence as the law requires, the leaving of bars therein down by some third person, and that through them cattle have strayed upon the track and been injured, does not make for plaintiff a prima facie case. He must go further, and show that the defendant was guilty of negligence in permitting them to remain down. Having built the fence as the law requires, the leaving of bars therein down by some third person, over whom defendant has no control, is not an act which renders defendant liable. That liability, if it exists at all, arises from its conduct after the bars were left down, either in failing to put them up, after acquiring knowledge that they were down, or in neglecting to use reasonable diligence to ascertain such condition. And the burden of proving these facts is upon plaintiff." (Aylesworth v. R. R. Co. 30 Iowa, 459; Muldowney v. R. R. Co. 32 Iowa, 176.) And it is to be observed that, in some of the States, where the common-law rule as to keeping animals within inclosures prevails, a railroad company is not liable for animals injured by its trains where the animals were not lawfully in the land adjoining the roadway and thence got upon the track through a gap in the fence. (McDonnell v. R. R. Co. 115 Mass. 564.) 94. § 95. § 96. § 97. § 98. § 99. The hirer of animals must feed and care for them. § 100. If the hirer of animals abuse them. § 101. Distinction between hirer and borrower of animals § 102. Borrower of animals restricted to stipulated use of them. § 91. Contract of hire of animals.-The hiring of animals implies an obligation on the part of the lessor to him who, by the contract, is to have the use thereof, that for the period of the bailment the hirer is to have the use and enjoyment of the property to the extent of the contract, and on the part of the hirer to fulfill all such engagements as by express terms he has agreed to, or are by law imposed on him. On the part of him who hires out the animals, it is in effect stipulated that he is to deliver them to the hirer; to refrain from every obstruction to the use of them by the hirer during the period of the bailment; to refrain from doing anything which should deprive the hirer of the benefit contemplated in the transaction; to warrant the title and right of possession to the hirer, so that he may have the full and unobstructed use of the property, and to warrant the animals to be free from any fault inconsistent with the proper use of them, regard being had to the purposes for which they are let. The delivery of the property must be to the hirer, unless otherwise agreed; and this should be with all suitable and requisite appendages and equipments, in view of the purposes FARM-8. of the hirer in taking the same; as, if a horse is let to ride, it should also be with a suitable saddle and bridle.1 On § 92. Special covenants by the lettor of animals. the part of the lettor of animals, the covenants which the law implies to have been made by him are such that he must deliver to the hirer the subject of the bailment in proper condition, and with suitable equipments for the purposes of the service involved, and if he fail to do so an action will lie for a breach of the covenant. He must deliver to the hirer the animal in the condition contemplated by the parties in making the contract, and if by accident, unavoidable casualty, or otherwise, the animal has become injured or unsuited to the employment, the hirer is not bound to take it, but may insist upon the contract being rescinded. From principles of justice it results that the lettor should restrain from all obstructions to the hirer in the use of the property for the purposes of the bailment; the only practical questions involved in the consideration of this branch of the subject, therefore, are what amounts to such obstruction. Resumption of the property, or any other act by which the lettor voluntarily deprives the hirer of it, is a clear case of violation of duty, and so it may be said of any other act which prevents the hirer from using the same as contemplated by the parties when they made the contract; as, if the lettor sells the property, or suffers it to be attached so that the hirer loses the anticipated use of it. In such cases there is a clear violation of his implied contract.2 § 93. Warranty of title implied by letting animals. An implied warranty of the title and right of possession to 1 Story on Bailments, p. 317; Pothier Contrat de Lonange, n. 53; 1 Domat Civil Law, by Strahan, Vol. 1, p. 264-5. This distinguished author, in his chapter on the Duties of the Lessor, says: "The lessor is bound to procure the free use and enjoyment of the thing leased, to the person to whom he lets it out; to deliver the same to him in a condition to serve the use for which it is hired; and if the lessor does not deliver the things in good condition, or such as he promised to do, the lessee may recover his damages; and he will be still more entitled to this relief if the proprietor himself, or the person for whom he is answerable, hinder the tenant from enjoying the property leased." 2 Pothier Contrat de Lonange, n. 86, 87; 1 Domat, Civil Law by Strahan, p. 265, B. 1, Tit. 4, Sec. 3, Art. 4. |