The plaintiff claimed damages against the defendant for negligence in that the defendant had dug a drain under the plaintiff's fence thereby enabling the plaintiff's cattle to gain access from the plaintiff's farm to 5 the defendant's railway line, resulting in 12 of the plaintiff's cattle being run over by trains.
Held:
(i) If contributory negligence is to be relied upon it should be pleaded.
Defence counsel cannot for the first time raise it in his submissions.
(ii) That in digging a drain under the plaintiff's farm and thereby enabling his cattle to stray on to the railway line the defendant's servants were negligent.
