#### Ohio and Mississippi Railroad Company v. Emanuel Fowler.

Contributory negligence—-failure to fence track. Where a railroad company fails to fence its road, and stock is killed by its trains in a county where it is lawful for stock to run at large, the question of contributory negligence, in the owner permitting his stock to run at large, can not arise, and the company is liable.

Appeal from the Circuit Court of Shelby county; the Hon. Horatio M. Yandeveer, Judge, presiding.

Mr. J. G. Essick, for the appellant.

Mr. Justice Scott

delivered the opinion of the Court:

Proof was made, it was lawful for stock to run at large in the county where plaintiff’s steer was killed, and hence the question of contributory negligence discussed does not arise. *22As the company had not fenced its railroad track at the point where the animal was struck and killed, defendant is clearly liable, and the judgment must be affirmed.

Judgment affirmed.