This was an action by F. E. Hardesty against the St. Louis San Francisco Railroad Company to recover damages for the killing of certain hogs by one of the defendant's trains.
The court instructed the jury, in substance, that it was the duty of the engineer and fireman in charge of the train to keep a sharp and vigilant lookout for live stock on the track, and, in effect, instructed them that it was the duty of the defendant to use reasonable care to discover animals on the track. This instruction is assigned as error.
The hogs were killed in Tulsa county. There is no proof that the county, or subdivision thereof where the stock were killed, was exempt from the general law prohibiting animals from running at large; and there being no proof the presumption is that they were prohibited from running at large. M., K. T.Ry. Co. v. Savage, 32 Okla. 376, 122 P. 656.
The law does not require a lookout to be kept for animals on the track of a railroad company in those portions of the state not exempt from the operation of the herd law. This rule is established by a number of decisions. See A., T. S. F. Ry.Co. v. Davis Young, 26 Okla. 359, 109 P. 551; A., T. S.F. Ry. Co. v. Ward, 32 Okla. 187, 120 P. 984; M., K. T. Ry.Co. v. Savage, 32 Okla. 376, 122 P. 656; St. L. S. F. R.Co. v. Brown, 32 Okla. 483, 122 P. 136; St. L. S. F. R. Co.v. Little, 34 Okla. 298, 125 P. 459. In such cases the duty of the defendant's employees is to exercise ordinary care to avoid injuring the animals after they are discovered. *Page 684
It follows that the instruction in this case was erroneous, and as, under the evidence, it was very material, the judgment should be reversed.
By the Court: It is so ordered.