It was held in Gorman v. Pacific Railway, that the company were not bound to fence their road; but it was also held that the jury should consider the fact that the road was not fenced, in determining whether the company exercised proper care under the existing circumstances; and it was said that such companies should exercise the utmost care and diligence in the enjoyment of their own privileges to avoid doing injury to others.19

12. It has been considered that a railway is not responsible for injuries to horses, in consequence of their being frightened on the road by the noise of the engine and cars, in the prudent and ordinary course of their operations.20

13. The subject of negligence in the plaintiff, which will prevent his recovery, is discussed much at length in Beers v. The Housatonic Railway,21 and in the main the same views are adopted in regard to injuries to cattle, which we have stated in regard to injuries to persons.22 It is there laid down, by the court, that where there was negligence or want of care in whatever degree, by either party, is a question of fact to be determined by the jury, and that even where the circumstances are all admitted, it will not be determined as a question of law, but the inference of negligence, or no negligence, is one of fact for the jury.

14. But this, we apprehend, is true only where the circumstances leave the inference doubtful. If the proof is all one way, either in favor of or against negligence having intervened, the inference is always one of law for the court.23

*15. There are some few cases where actions have been brought for injuries to cattle or horses, in consequence of some alleged remote negligence in the company. In one case, the action was for the loss of a horse, by falling into a large well

19 26 Mo. 441.

20 Burton v. The Phil. Wil. & Balt. Railw., 4 Harr. 252.

upon the com

21 19 Conn. 566. And in Poler v. New York Central Railw., 16 N. Y. 476, where a gate adjoining plaintiff's land upon defendant's land got out of repair and liable to be blown open, and the plaintiff, without giving notice to defendant, took measures to secure the gate, which proved ineffectual, and his cattle escaped through the fence and were killed on the track of defendant's road, it was a question of fact whether the plaintiff was guilty of culpable negligence. 22 Post, § 177, and cases cited; Chicago & Mis. Railw. v. Patchin, 16 Ill. 198. 23 Underhill v. N. Y. & Harlem Railw., 21 Barb. 489; Lyndsay v. Conn. & Pas. Rivers Railw., 27 Vt. 643; Scott v. W. & R. Railw., 4 Jones Law, 432. 24 Aurora Branch Railw. v. Grimes, 13 Ill. 585.

pany's grounds. The plaintiff had frequent car-loads of lumber coming to the company's station, and he requested them to remove it to a position on their track where it could be discharged into his own lumber-yard, which they declining to do, he drew it with this horse to the proper point, and unloaded it. Upon another car arriving he attempted to do the same, without consulting the company, but his horse proved restive and backed off the track, and in his struggle fell into the well. The plaintiff had a verdict below, and a new trial was awarded, upon the ground that the duty of the company to exercise care and prudence depends upon the question whether the plaintiff is in the exercise of a legal right. For if not, he must show that he exercised extraordinary care before he can be permitted to complain of the negligence of another.

16. And in another case,25 the plaintiff's horse was killed by breaking a blood-vessel in struggling from fright at the defendants' train of cars in its near approach to the turnpike road, which by their charter they were required to purchase, and in crossing all roads to restore them to their former state of usefulness. At the place of the injury the defendants excavated their road-bed upon the turnpike, some five feet below the surface, leaving a steep descent upon the railway, and no fence between the track of the turnpike and railway. The plaintiff was passing along the turnpike, leading his horse at the time. It was held, that under their charter the company were liable, if the excavation impaired the safety of the turnpike for public travel, and that such "encroachments of defendants upon a turnpike is a public nuisance, for which any person sustaining a particular injury may maintain an action."

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17. And it has been laid down, in general terms, that a railway company, authorized to use steam locomotive engines upon their road, is not liable for the damage or disturbance caused by such use, near a turnpike road existing before the railway company, unless such engines are used in an extraordinary and unreasonable manner.2 26

18. And where the legislature imposed a penalty upon railways, of $100 for every month's delay, in performing the duty of keep

25 Moshier v. Utica & Sch. Railw., 8 Barb. 427. But see Coy v. Utica & Sch. Railw., 23 Barb. 643.

26 Bordentown & South A. Turnpike v. Camden & Amboy Railw., 2 Harrison, 314; Coy v. Utica & Sch. Railw., 23 Barb. 643.

ing and maintaining legal and sufficient fences on the exterior lines of their road, as required by their charters, it was held that the neglect of the corporation to perform this duty, rendered them liable to reimburse any person suffering injury thereby, in his property, in an action at common law. And if the defect in the fences by which the injury occurs were known to the company, they are liable for the damage suffered, notwithstanding their engineer was at the time in the exercise of due care, and notwithstanding the fence was originally imperfectly built by the plaintiff for the company.27

19. In an action for injury to domestic animals by the passing engines of a railway company, it is not conclusive of the liability of the company that the damage occurred in consequence of the passing of their engine, and that the engineer omitted the statutory requirements of blowing the whistle, ringing the bell, reversing the engine, &c. It should still be submitted to the determination of the jury whether the damage was caused by the engineer's neglect of duty, as that is a question lying exclusively within their province. 28

20. One who voluntarily suffers his cow to go at large in the public streets of a city, with no one to take charge of her, and thus to stray upon a railrway track, at a time when cars are passing, is guilty of such carelessness that he cannot recover for any injury to the animal through any degree of negligence short of that which is gross.

29

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21. The competency of the evidence of experts in regard to the management of locomotives so as to avoid the possibility of doing damage. to animals upon the track, is discussed in a late case in Ohio.30 It is not easy to define any very exact rule in regard to the extent of the testimony of experts as to the practicability of avoiding doing damage, under a given state of ex

27 Norris v. Androscoggin Railw., 39 Maine, 273. In this case the fence was stone-wall, built by plaintiff, by contract with the company some two years before, and accepted by them. The gap in the wall whereby the animal escaped upon the track of the railway, occurred several days before, and was known to the defendants. There was no other evidence of the manner of constructing the wall. The court held the plaintiff stood in the same position, as to his claim, as if any other one had built the wall.

28 Memphis & Charlotte Railw. v. Bibb, 37 Ala. 699.

29 Bowman v. Troy & Boston R. Co., 37 Barb. 516.

30 Bellfontaine & Iowa R. Co. v. Bailey, 11 Ohio N. S. 333.

posure of persons or animals. The subject is a broad one, and to its full discussion would require a volume, instead of a single paragraph. But we make no question, the management of a locomotive steam engine, under any and all conditions and circumstances, is a matter of science and skill, as to which courts and juries are not ordinarily competent to form a reliable and satisfactory judgment, and that they do therefore stand in need of aid and instruction in regard to the matter, whenever it comes before them for determination, and that consequently the testimony of experts may always be received under the ordinary limitations and restrictions.

22. The subject of the responsibility of railways for injury to cattle running at large and coming upon their track is very carefully considered in a later case in Ohio.31 It is here declared that the owner of cattle who does not keep them within his own enclosure, when he might do so by proper care, cannot require of a railway company to regulate the management and speed of their trains with reference to cattle coming upon their track. Such companies, like all others, have a right to regulate the management and conduct of their business solely with reference to the security of persons and property in their charge, and the meeting of their reasonable appointments in regard to them, and may make their plans upon the reasonable and legal presumption that other persons will perform all their legal obligations towards them, and consequently that the owners of domestic animals will keep them at home, where alone they belong, and not suffer them to stray upon the track of a railway company, unless they * are prepared to incur the legitimate hazards of such an exposure. But when a railway company finds cattle upon its track, it is bound to avoid damage to them, if practicable, by the same degree of effort that a prudent owner of the cattle would be expected to do, properly considering the hazard both to the train and the cattle. And the proper inquiry in such a case is, whether the agents of the company exercised reasonable and proper care, in running their engine, to avoid injury to the cattle of the plaintiff; and the facts and circumstances bearing upon this question are for the exclusive consideration of the jury.

23. And much the same view is taken in a recent case in Kentucky, where it is said that the paramount duty of a railway

82

31 Central Ohio R. Co. v. Lawrence, 13 Ohio N. S. 66.

32 Lou. & Frankfort R. Co. v. Ballard, 2 Met. (Ky.) 177. But railway com

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company, in the conduct of a train, is to look to the safety of persons and property therein, and subordinate to this is the duty to avoid unnecessary damage to animals straying upon the road. And while a railway company is not justified in any conduct of its agents, in regard to cattle upon its track, which is needless, wanton, or wilful, it cannot be responsible for any thing short of this, since the owners of cattle are specially bound to keep them off the tracks of railways.

33

24. And in a late case in Maryland, it was held that the wellsettled principle of the common law, that a plaintiff is not entitled to recover for injuries to which his own fault or negligence has directly contributed, is not abrogated by the several acts of assembly, regulating the liabilities of railways in this state for stock killed or injured by their trains. These acts leave the question of the effect of the plaintiff's conduct upon his right to recover for the acts of others where it was at the common law. But the onus of proof is changed by the statute, and where stock is killed the law now imputes negligence to the company, unless it can show that the damage results from unavoidable accident.33 It was not intended hereby to interfere with the time-table or the rate of speed on railways. The act leaves all this to the discretion of the companies, but imposes upon them the highest degree of care and caution; and in the absence of fault on the part of the plaintiff it must appear that the collision took place without any * fault or negligence on the part of the company or its agents, in order to exonerate them. In other words, if the plaintiff is not in fault the company will be responsible, unless the damage is the result of unavoidable accident.

25. In Indiana it is held, that in an action against the company for killing stock it must appear, both in the complaint and proof, that the damage resulted from the carelessness of the company or the omission to fence their road.34

26. In Missouri 35 it is determined by statute and the construcpanies are not bound to maintain fences, sufficient to exclude the possibility of cattle coming upon their line, even under the extreme duty and obligation which they owe toward the protection of their passengers. Buxton v. N. E. Railw. Law Rep. 3 Q. B. 549.

33 Keech v. Baltimore & Wash. R. Co., 17 Md. 32.

34 Indianapolis, &c., R. Co. v. Sparr, 15 Ind. 440; Same v. Williams, id. 486. 35. Meyer v. North Mo. R. Co., 35 Mo. 352; Powell v. Han. & St. Jos. R. Co., id. 457; Burton v. North Mo. R. Co., 30 id. 372.