Moses v. Southern Pacific Railroad , 18 Or. 385 ( 1890 )

Lord, J.

This is an action to recover ■ damages for negligence in the management of the defendant’s railroad, whereby a horse owned by the plaintiff was killed. The answer, after making the usual denials, sets up separately as a defense that the injury and damages were caused by the contributory negligence of the plaintiff; all of which he denied in his reply. There was a trial had, resulting in a verdict and judgment for the plaintiff, from which this appeal is taken.

By his brief, the counsel for the defendant, who is the appellant, says that the appeal involves but one question: “What is the liability of a railroad company for an injury done by a moving train to a horse running at large, and seeking pasturage upon the depot grounds of the company with the knowledge and permission of the owner?” This question arises out of an exception to a modification of an instruction asked, and is as follows: '“If the jury believes from the evidence that the plaintiff voluntarily permitted his horse to run at large, and the horse was accustomed to pasture on the depot grounds of the defendant, and wandered on the railroad track and was killed, such con-duct by the plaintiff would not preclude a recovery in this case by the plaintiff, unless the defendant’s servants exercised the ordinary care of prudent men in running the train at the time of the accident. In this case, if yon believe from the evidence that the plaintiff was guilty of negligence in allowing his horse to be upon the depot grounds, and that such negligence contributed to the accident, still if you believe that the accident could have been avoided by the exercise of ordinary care and diligence on the part of the defendant, the defendant is liable. ”

The facts upon which this instruction was based were to this effect: That the evidence tended to show that the horse was, at the time he was struck by the locomotive, running at large on the depot grounds of the defendant, in the town of Tangent, and that the locomotive was attached to one of the regular passenger trains, which passed through the town north to south at one o’clock P. M., and was upon the regular time; that the engineer signaled his approach to the station by sounding the whistle when about three hundred yards distant therefrom, etc.; that the horse was, during all of said time and prior to the first sounding of the whistle for the station, running at large at or near said depot grounds, and had at different times previously to said day been seen occasionally pasturing upon said depot grounds; that plaintiff resided in said town, and about seven hundred feet away from said depot grounds; that there is a conflict of evidence as to what the speed of the train was when said horse was first seen to go upon the track and said alarm whistle was sounded, or as to whether or not said speed was slacked before the horse was overtaken by the locomotive, and as to whether or not the engineer endeavored to and could have stopped the train after the horse went upon the track and before he was struck by the locomotive, the speed of the train when the horse went upon the track and before he was struck by the locomotive being variously estimated, by witnesses, at from eight to twenty miles per hour, and some of the witnesses testifying that the speed of the train was constantly lessened before the horse was struck, while other witnesses testified that they could not perceive that the speed of the train was at all diminished between the sounding of the alarm and the striking of the horse. The engineer testified that immediately upon sounding the alarm whistle he applied the brakes, reversed the engines, and did all that was in his power to do towards stopping the train, which was running about three miles an hour when the horse was struck. Other witnesses, who were standing on the platform some three hundred yards distant, testified that the engineer did, and some that he did not, check the speed of the train before striking the horse.

These facts show (1) that the injury to the horse occurred on the track on the depot grounds, and (2) that, as the hoi’se had been seen px-ior to the day of the accident occasionally to pasture on the depot grounds, it is presumed that he was suffered to run at large with the consent of his owner, and strayed upon the track under the circumstances indicated, and (3) that there is a conflict of evidence as to whether the engineer endeavored to check the speed of the train before striking the horse, but none that he did not sound the alarm whistle and turn the steam through the cylinder cocks to dxúve the horse from the track. Upon this state of facts, the contention of the appellant is (1) that the depot grounds are not included within the intention of the law requiring railroads to be fenced, and (2) that the plaintiff, in allowing his horse to run at large and stray upon the depot grounds and track, where he was killed by a moving train, was guilty of contributory negligence, which precludes his right of recovery. The language of the statute making railroad companies liable for killing stock “upon or near any unfenced track of any railroad in this State, whenever such killing or injury is caused by any moving train or engine or cars upon such track, ” is broad enough to include that part of the track which is contiguous to its- stations or depots. Or. Code, §§ 4044, 4045. Taking it literally, the statute would apply to the entire track of the railroad, which would necessarily include such parts of the track as lie upon its depot or station grounds, thereby rendering the railroad company absolutely liable to the owner of any stock injured, for an omission to fence its tracks upon its depot or station grounds. But such a construction is not consistent with the reason of the statute or the intention of its enactment. In view of the business transactions at depot grounds, it is as much for the public convenience that it should be open and unfenced as public highways, to which, applying the strict letter of the law, the statute would also extend at the places where the railroad track crosses such highways. The purposes for which these are to be used, and the right of public convenience, are inconsistent with the obligations to fence at such places, or to incur the liability created by the statute, and cannot therefore be held to apply to depot grounds, nor to public-road crossings, nor to the streets of cities or villages. In Davis v. Railroad Company, 26 Iowa, 554, Wright, J., said: “The language is ‘its road,’ and wTe do not believe that this includes depot grounds. True, these grounds, including switches, side track, etc., may be a part of the road. This is not denied, for many purposes, and indeed most purposes, and yet we cannot think that the legislature contemplated these as a part of ‘the road’ by the statute under consideration. ” Within the principle thus declared, on account of the impracticability of fencing such places, we do not think that the statute applies to depot grounds, and so it has often been held by the courts. Eorer on Railroads, Vol. 622, 623, and note; 19 Am. & Eng. R. R. Cases, 539, note. Nor is there anything in the complaint or record to indicate that a recovery in damages is sought or any liability created by the statute, or other than the ordinary action to recover damages for negligence.

Upon the next question, namely, that the plaintiff, in allowing his horse to run at large, so that he strayed upon the track, was guilty of contributory negligence, and is precluded from a recovery, the authorities are not agreed. There seems, however, to be a line of distinction between them which accounts for this difference on principle, which perhaps would not exist without it, and this is, whether the common law rule which requires the owner of stock to keep them in his own close, at his peril, prevails in the jurisdiction or not. Of course, in any of them, this relates only to such cases as are not within the statutory obligation to fence, or such places as are excepted from its operation. In those jurisdictions in which the common law rule prevails that the owner of cattle is bound to keep them in his own enclosure, it is quite generally held that if he suffers them to go at large, and the cattle stray upon the railroad track and are injured or killed, the company is not liable, unless the conduct of its agents in the management of the train was wanton or wilful. In such cases the cattle are regarded as unlawfully at large, and exposed to danger by the fault of the owner, which, in the event of their destruction by collision with the locomotive, while on the track of the railroad, is considered as the direct consequences of his negligence, which will preclude a right of recovery in him for their loss, although it may have occurred through the negligence or want of care of the railroad company.

In Railroad Company v. Munger, 4 N. Y. 258, which was an action to recover damages for negligence in killing the plaintiff’s oxen by running over them by a train while on the track of the defendant, the court, after reaching the conclusion that the oxen, when killed, were trespassing on the land of the defendant, under the common law rule that the owner of cattle is bound, at his peril, to keep them off the land of other persons, says Beardsley, J.: It is not pretended that the act was done 'designedly by the persons in charge, but simply that it occurred through their negligence or want of care. It is a well .settled rule of law that such an action cannot be sustained if the wrongful act of the plaintiff cooperated with the misconduct of the defendants, or their servants, to produce the damage sustained. I do not mean that the cooperating act of the plaintiff must be wrong ih intention to call for the application of this principle, for such is not the law. The act may have been one of mere negligence on his part, still he cannot recover. ” “But injuries inflieted by design are not thus to be excused A wrong-doer is not necessarily an outlaw, but may justly complain of wanton and malicious mischief. Negligence, however, even when gross, is but an omission of duty. It is not designed and intentional mischief, although it may be cogent evidence of such an act. Of the latter a trespasser may complain, although he cannot be allowed to do so in regard to the former.” In Bowman v. Railroad Co., 37 Barb. 519, it is held that one who voluntarily suffers his cow to go at large in the public street, with no one to take charge of her, and to stray upon a railroad track at a time when cars are passing, is guilty of carelessness, and cannot recover for injuries to the cow happening through the negligence of the railroad company, not amounting to gross negligence, Miller, J., saying: “His own act and negligence contributed to produce the injury complained of, and caused the death of the cow, and there is no evidence of gross negligence on the part of the defendant.” In Maynard v. Railroad Co., 115 Mass. 460, Gray, C. J., said: “If the horse had been rightfully upon the defendant’s land, it would have been their duty to exercise reasonable care to avoid injuring the horse; but it being admitted, by the plaintiff that liis horse was trespassing upon the railroad, they did not owe him that duty and were not liable to him for anything short of reckless and wanton misconduct of those employed in the management of their train.”

As the plaintiff is bound at common law to keep his cattle within his own enclosure, and liable for all damages done by them when they stray upon the lands of others, he is the party in fault; and it results, if he suffers them to stray upon the track of a railroad, they are there without right, and as trespassers, through his wrongful conduct, and if injured or killed by the negligence of the railroad or its agents in the management of its train, he must abide the consequences, upon the ground that the defendant company owes no duty of care to trespassing cattle on their Hacks, except not wantonly or -wilfully to destroy them, and that in x^ermitting the cattle to be at large, wrongfully or by Ms own fault lie has contributed to produce the injury of which he complains, and is precluded from a recovery. When such a state of facts exist, nothing but wilfulness on the part of the agents of the company, or, as the authorities sometimes put it, such negligence as would amount to wilfulnes's, would make the company liable in damages for the killing of cattle upon their track,. so exposed by the fault of their owner. Railroad Co. v. Hunter, 38 Ind. 557; Williams v. Railroad Co., 2 Mich. 265; Stucke v. Railroad Co., 9 Wis. 202; Halloran v. Railroad Co., 2 E. D. Smith, 257; Railroad Co. v. Ballard, 2 Met. (Ky.) 257; Bennett v. Railroad Co., 19 Wis. 145; Railroad Co. v. Tower, 2 R. I. 404; Vandgrift v. Redker, 22 N. J. L. 185; Perkins v. Railroad Co., 29 Me. 307; Woolsen v. Railroad Co., 19 N. C. 267; Railroad Co. v. Skinner, 19 Pa. St. 298; Railroad Co. v. Spinner, 67 N. Y. 153; Railroad Co. v. Stuart, 71 Ind. 504.

In some of the cases, and especially the older ones, the term “gross negligence” is used as the equivalent of “wilful negligence ” as used by the later authorities, which imports act or conduct that is wilful or wanton, and to which the doctrine of contributory negligence has no application; for when the injury done the plaintiff is occasioned by the wilful and wanton act of the defendant, the negligence of the plaintiff is no defense, and so it is held by the cases referred to, with perhaps some slight excep tions to cattle trespassing on the track of railroads. As a result of this class of cases in the States in which the common law.rule prevails, it is generally considered that allowing cattle to run at large is such negligence as precludes a recovery. On the other hand, in those jurisdictions or /States in which the common law rule as to the duty of the owner of stock to keep them in Ms own enclosure is abrogated, it is generally held that a plaintiff in permitting his stock to run at large commits no unlawful act, nor is guilty of an omission of ordinary care, and if they stray upon the' uninclosed track of a railroad, and are injured or killed, although they may be regarded as trespassers, lie is not guilty of contributory negligence, but that the company is liable for their loss unless it exercised ordinary care and skill in the management of its trains tc prevent their injury or destruction. It is considered, as the act of the plaintiff in suffering his stock to run at large is not unlawful nor negligent, nor likewise the act of the defendant in leaving its track uninclosed, yet when it is so, as the stock may stray upon it as other uninclosed places, the defendant takes the risk of such intrusion upon its track and the owner the risk of injury to his stock by unavoidable accident, but not of negligence or want of ordinary care, hence the conclusion that railroad companies are not liable for the ordinary negligence of their servants. In all such cases and jurisdictions where the common law rule is not in force and the owner of stock may allow them to run at large without violating the law, or being guilty of negligence, if such stock stray on an uninclosed track and are killed by the train, when by the exercise of ordinary care that loss or result might have been avoided, the negligence of the railroad company is regarded as the proximate cause of the injury, and tho act of the owner in suffering them to run at large as too remotely connected with the negligence of the defendant to constitute contributory negligence, or be operative as such a defense. Such acts are not the immediate cause of the injury or loss of property, nor do they concur and combine at the time with the negligence of the company as the natural and probable consequence of it, but at most bear only a remote relation to it, which, when stock is on their track, does not release the company from their obligation of reasonable care to avoid injuring them, at least, to the extent that the law requires; and common justice and humanity demands of others, when stock is trespassing upon their lands, not to injure or kill it, if by ordinary care they could prevent it. When the company is not bound to fence, the measure of liability is ordinary care, and though stock have no right to be on the track, especially when required for use of its trains, yet the company enjoys no special privileges over other owners of lands, and is under the same obligation to exercise care to avoid injuring them, consistent with their duties in the management of the train. In Railroad Co. v. Finley, 37 Ark. 569, it is held that it is the duty of an engineer of a train to keep a careful and constant lookout for stock upon the track, and, although such be wrongfully there, yet he must use ordinary care and diligence to discover it and avoid injury to it, or the company will be liable for the injury done. The court say: “Avery prudent man might not, perhaps, allow his stock to go at large in the immediate vicinity of a railroad, and one who does so may not be altogether free from negligence, yet he assumes only the risk of an accident which might not be avoided by ordinary care of the agents of the company. ” In Balcom v. Railroad Co., 21 Iowa, 103, where the action was for damages sustained by killing the plaintiff’s cattle by running the cars over them, at a point where the public highway crossed the defendant’s road, it was held that if the cattle were not on the track by the negligence of the plaintiff, the test of the defendant’s liability is whether, at the time of the accident, reasonable and proper care . was exercised to avoid the injury.

In Searles v. Railroad Co., 35 Iowa, 491, which was an action for negligence in killing the plaintiff’s ox by a freight train on a public highway crossing, error was assigned for refusal to give, among other, this instruction: ‘ ‘Railroad trains, when cattle are on the track, are not required to slacken their speed, or to make signals by blowing the whistle or ringing the bell at road crossings, or places where the road has not a right to fence, ” and Day, J., said: “It was held, at a very early period in the judicial history of this State, that the mere fact of permitting cattle to go at large is not a ground for imputing negligence to the owner. A railway company is liable for injuries resulting from the careless and negligent management of its trains, where the injured party does not by his own negligence contribute to the injury. It is a corollary of these two jjropositions that a railroad company must respond in damages for injuries to stock through its negligence, where the owner has contributed to the injury no further than merely permitting it to run at large. ” In Railroad Co. v. Smith, 22 Ohio St. 227, it was held that the servants of a railroad company, in operating its trains are bound to use ordinary care to avoid injury to domestic animals trespassing on the track; and the court say: “If the servants of the company in charge of the train, haying due regard to their duties for the safety of the persons and property in their charge, could, by the exercise of ordinary care, have seen and saved the horses, we think they were bound to have done so. ” In Blaine v. Railroad Co., 9 W. Va. 253, which was an action for negligence in killing a horse on a railroad track, the court, after remarking that the rule of common law requiring the owner of animals to keep them on his own land had never been in force in West Virginia, being inconsistent with its legislation, among other things said: “The remote negligence of the plaintiff will not prevent his recovering for an injury to his property caused by the negligence of the defendant. The negligence of the plaintiff that defeats a recovery must be a proximate cause of the injury. Suffering domestic animals to run at large, by means whereof they stray upon an uninclosed railway track, where they are killed by a train, is not, in general, a proximate cause of the loss; and hence, although there may have been some negligence in permitting the animals to go at large, such negligence being only a remote cause of the injury, it will not prevent his recovering from the railroad company the value of the animals, if the immediate cause of their death or injury was negligence of the company’s servant in conducting the train.”

The same language was used in Railroad Company v. Elliott, 4 Ohio St. 475, and see also Kerwhacker v. Railroad Co., 3 Ohio St. 172, in which the principles of the law under discussion was set forth with great ability and much force and cogency of reasoning. In Railroad Co. v. Mulligan, 45 Md. 493, a State in which it is the duty of owners of cattle to keep them within their inclosure, yet in an action for damages for the loss of a cow, run over by the cars of the defendant, Robinson, J., in delivering the opinion of the court, says: “No one has a right to complain of injury to cattle or other stock which he has permitted to stray upon a railroad track, unless such injury can be avoided, consistently with these higher and paramount duties resting upon the company—not to endanger its passengers. What we mean to say and to decide is this, that it is the duty of the company to exercise reasonable care to avoid injury to cattle or stock found on its road, though such cattle and stock may be there through the negligence of the owner. ” So, too, in Trow v. Railroad Co., 24 Vt. 494, the court say: “Where the negligence of the defendant is proximate and that of the plaintiff remote, the author can then well be sustained, although the plaintiff is not entirely without fault. This seems now to be settled in England and in this county. Therefore, if there be negligence on the part of the plaintiff, yet if at the time when the injury was committed it might have been avoided by the defendant, in the exercise of reasonable care and diligence, an action will lie for the injury. So in this case, if the plaintiff was guilty of negligence, or even positive wrong, in placing his horse in the highway, the defendants are bound to the exercise of reasonable care in the use of their road and the management of their train and engine; and if the injury arose from the want of their care they are liable.” “The railroad,” said Redfield, C. J., “cannot justify either recklessness, want of common care at the time and after the cattle are discovered, or wanton injury.” Railroad Co. v. Jackson, 25 Vt. 161. “The negligence,” said Baldwin, J., “which disables the owner to sue must be negligence which directly or by natural consequences conduces to the injury. It is not easy for us to see, therefore, that the mere fact that a party who suffers his cows to go at large near the line of a railroad is guilty of such negligence as to excuse the corporation from reasonable diligence and care to avoid injury to them when they happen to be on the track. The suffering them to go at large certainly is not the usual or natural cause of such an injury. Such a result would not probably happen once in a thousand or perhaps ten thousand times. ”

The general conclusion to be deduced from this case is that the fact of merely permitting cattle to run at large near the line of a railway is not enough to excuse the company from the exercise of ordinary care and diligence to avoid injuring them when they may happen to stray upon its track, consistently with a due regard for the safety of its trains and passengers. That such acts upon the part of the owner of cattle are too remotely related to the negligence of the defendant to concur and combine with it as the proximate cause of the injury, and in the sense of the law do not constitute contributory negligence, but that the failure of the company to exercise ordinary care and diligence under the circumstances is the immediate or proximate cause of the injury or loss of property, and renders the company liable for its negligence. So manifest is the justice of this requirement not to injure or kill stock which may happen to stray upon the track, if by the exercise of ordinary care it can be prevented, that in some jurisdictions, as we have shown, in which the common law rule prevails as to the duty of owners to keep their stock within their inclosures, it has been adopted and applied. So that, speaking generally, it may be said that a railroad company is liable in damages for injury to stock caused by its negligence, where the owner has contributed to the injury no further than merely permitting them to run at large. Railroad Co. v. Patton, 31 Miss. 188; Railroad Co. v. Gorman, 26 Mo. 441; Trout v. Railroad Co., 23 Grattan, 623; Isabell v. Railroad Co., 27 Conn. 393; Railroad Co. v. Williams, 65 Ala. 74; Railroad Co. v. Irish, 72 Ill. 404; Railroad Co. v. Lebus, 14 Bush. 518; Railroad Co. v. Macon, 40 Cal. 522; 1 Thomp. Neg. 498; Beach Con. Neg. § 73.

Now, upon the facts, within which line of reasoning does the case before us come? It has been held that the common law rule requiring every man to keep Ms stock witMn Ms inclosure .is not in force in this state. Campbell v. Bridwell, 5 Or. 312. It is a matter of common knowledge that it is not only the general understanding, but the custom of the people, to allow their stock to run at large, and from the first settlement of the State until the present time all kinds of stock have been allowed to run at large on uninclosed lands. Besides, our legislation in relation to inclosures, estrays, and the marking and branding of stock, are inconsistent with its existence .in this State. It is not then a violation of law, nor a .want of ordinary care, merely to allow stock to run at large in this State, and unless some special circumstances exist, no.one, individual nor corporation, may injure or kill them when they stray upon his uninclosed lands, or its railroad track, without incurring liability in damages therefor, unless ordinary care and diligence was exerted to prevent it. As applied to the facts in hand, within the reasoning of the authorities, the plaintiffs horse was not a trespasser in the common law sense when he strayed on the track near or on the depot grounds; nor within the intention of the statute as we have shown,' was the defendant under any obligation to fence its depot grounds so' as to exclude the horse, or other stock. It is conceded that the defendant had a right to its track, and while, as was said in Smith v. Railroad Co., “the plaintiff’s horse had no right to be there, though negatively stated, he was not in the wrong for being there, ” yet that circumstance did not rólieve the defendant of the duty to exercise ordinary care, and if it was killed while thus on the track by its negligence, the defendant is liable. The original act being neither negligent’nor unlawful, when the horse strayed upon the track and was killed, the act of the plaintiff was not the direct nor proximate cause of the injury, and could not, therefore, be such negligence as would operate as a defense, and preclude a recovery. To effect that result there must have been mutual negligence, in the sense of equivalent acts simultaneously concurring to produce the injury. Before that can happen, the original act of turning loose the cattle or stock must have been done under such circumstances as indicated a want of ordinary care upon the part of the plaintiff as contributed directly to produce the injury. Ordinary care always has relation to the situation of the parties, and necessarily varies according to the particular circumstances under which it is exercised. An owner cannot turn loose his stock regardless of circumstances, or at a place where danger to them is constant and imminent, and when an injury occurs to them as a consequence of his conduct, though the defendant may not have been free from fault, escape the charge of negligence, or a want of ordinary care.

There is a marked difference between suffering stock to run at large upon uninclosed lands along the line of a railroad or adjoining its depot grounds, from which they may stray upon the track, and turning them loose uncared for and directly upon the grounds of a depot or station, covered with main and side tracks, switches, turn-outs and turn-tables, more or less constantly in use, with trains coming and going, where danger is known to exist, and where injury to them will probably happen as a consequence of the peril into which they have been voluntarily placed. In the former case, if they are killed by the negligence of the company, the act of the plaintiff is only the remote cause of the injury, while in the latter it is the proximate cause of the injury, cooperating with the negligence of the defendant to produce it. In such case the act itself is equivalent to deliberately putting the stock in a place of danger, and where injury to them is a probable consequence; the stock do not stray into a place of danger, but they are turned loose into a place where danger is known to exist, or which may be foreseen by the exercise of ordinary care, and the party cannot and ought not to recover for injuries which a^-e the direct result of his own negligence. While, therefore, an owner may suffer his stock to run at large and pasture upon uninclosed lands, if they should stray upon the track of a railway and be injured or killed by tbe negligence of tbe company, it m not considered such negligence as directly conduces to the injury, and does not preclude a right of recovery, yet there may be circumstances under which, to turn stock loose, uncared for, as would indicate such recklessness or want of ordinary, care, as would preclude a recovery.

Now, turning to the record, we have presumed, without any direct evidence of the fact, that the plaintiff suffered his horse to run at large, and that he wandered upon the depot grounds .and the track where the accident occurred. The record shows that he was running back and along and upon the track and away from the train when he was .struck, on the depot grounds, from forty to sixty feet from the place where he started on the rack; that when the train was about three hundred yards distant and signalled its approach to the station by blowing its whistle, the horse then was either upon the depot grounds alongside of the track or else was upon the public road, and soon thereafter was seen upon the track. Within the principles of the authorities, where it is not unlawful to allow stock to run at large, “a railroad company must respond in damages for injuries to stock through its negligence when the owner has contributed to the injury no further than merely permitting it to run at large.” Nor is there anything in the record to except the case from the operation of this principle.

There is no suggestion, upon the facts, of any special circumstances which made the conduct of the plaintiff in the premises negligent, or to charge him with a want of ordinary care. The place where the injury occurred was not a railway station in a thickly populated community, near to or adjoining some large and thriving town, netted with tracks and switches and turn-outs, at which a volume of business was done requiring the constant use of its depot grounds for its trains, passing and repassing, and where danger to roaming stock could be foreseen, and where to turn them loose would be voluntarily putting where injury to themwouldbe the natural and probable consequence. We concur in the case of Smith v. Railroad Co., 34 Iowa, 508, to which .we have been referred, that “the owner of cattle may not turn them out and enable them to frequent a place of great peril on the depot grounds or track, and then demand that the railroad company shall stop its trains and drive off his cattle, or slacken the speed or change the time-table in order to deliver his cattle from the peril into which he has voluntarily placed them. ” But it must not be overlooked that the court immediately added that “if the injury to the cattle was caused by the negligence of those having charge of the train, and which injury might have been avoided by the use of ordinary care, then, of-course, the plaintiff might recover. ” The use of the words in the last clause of the instruction, ‘ ‘ and that such negligence contributed to the accident,” was not used in the sense of such negligence as was the proximate cause of the injury and operative as a defense, but only as a remote cause of the injury, and would not preclude a recovery.'

The instruction must be examined by the light of the facts to which it is applied, and the circumstance of allowing the horse to run at large, except under special circumstances not raised by this record, is not an omission of ordinary care, and the law is, when a railroad company has injured stock through its negligence thatit'is liable, where the owner has contributed to the injury no further than merely permitting his stock to run at large. There is a large class of. cases, headed by Davis v. Mann, 10 M. & W. 546, a case much criticised, but which Judge Thompson shows has been approved by the great weight of authority (5 So. L. Rev., 835), in which the principiéis upheld, as declared by Lord Abinger, that ‘ ‘ as the defendant might by proper care have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there,” and which, as applied to the present case, is conclusive of the result already reached. And it may be observed further that that case and others were subsequently reviewed and considered by the court of exchequer, in Tuff v. Warman, 94 Eng. Com. Rep. 573, and it was held that mere negligence, or want of ordinary care on the part of the plaintiff, would not disentitle him to recover, if the defendant might, by the exercise of ordinary care and caution, have avoided the neglect or carelessness of the plaintiff. And m a still later and much discussed case (Radley v. London N. W. Railway Co., 1 L. R. App. Cases, 759), it was held error to instruct the jury, if there was contributory negligence in the plaintiff they should find for the defendant, without adding the qualification unless the defendant could have avoided the mischief by the exercise of reasonable, care. Lord Penzance said: “The first proposition is a general one, to this effect, that the plaintiff, in an action of negligence, cannot succeed if it is found by the jury that he has himself been guilty of any negligence, or want of ordinary care, which contributed to cause the accident. But there is another proposition, equally well established, and it is a qualification upon the first, namely, that though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff’s negligence will not excuse him. ” As applied to the facts in hand, the principle is required to avoid the destruction of life and property, if by ordinary care it may be safely done, or else it will be liable, though the plaintiff may haye been negligent. Wharton on Negligence, § 379, note 5. So cogently has this principle been supported that no person or corporation had the right to recklessly inflict wrong, or to destroy the property of another, even when trespassing, if by the exercise of ordinary care it may be avoided, with due regard to the safety of the train, impressed itself upon the justice and humanity of courts, that it has been adopted and applied in some jurisdictions where the common law rule prevails which requires the owner to keep his stock within his inclosure. Within the doctrine of these cases, although the present case does not require us to invoke it, tbe instruction is incontestibly sustained by the law. As no other question is presented by the record, or made at the argument, it follows that the judgment must be affirmed.