I cannot agree with the views expressed in the majority opinion, nor in the disposition of this case. If the railway company is liable for the injuries sustained by the horses which ran through the fences to escape from what, no doubt, seemed to them an approaching monster, emitting loud and frightening noises, and belching forth clouds of smoke and steam, then it seems to me that no less is it liable for the death of the mare in question, which, having escaped from the threatening and imminent danger, as she saw it, followed the natural promptings of her equine nature to get back to her companions by the only means of egress that presented itself. To one who knows horses and understands their habits it would seem that, under the circumstances, it must have been reasonably anticipated that in all probability she would have attempted to do the very thing she did do, not realizing the danger from the gaps in the walkway selected until after she started onto the trestle, and it was too late to turn back. I believe the accident in question is a result which naturally flows in a continuous sequence from the negligence of the railway company in permitting its gate or gap into its right of way to be down or get out of repair, or in failing to have fences and cattle guards on either side of the intersecting public road, thereby inviting loose stock to enter upon such right of way. The case of Railway Co. v. Dixon, cited in the majority opinion, is believed to be directly in point, and to support the judgment of the trial court as to this item of damage. Appellee also cites Railway v. Benaist, 122 S.W. 587, Railway Co. v. Harris, 3 Willson, Civ.Cas.Ct.App. § 224, Railway Co. v. Mitchell, 4 Willson, Civ.Cas.Ct.App. 261, 17 S.W. 1079, and Railway Co. v. Cooper, 75 S.W. 329, all of which in more or less degree upon the point in issue support the *Page 1115 Dixon Case. In the last-cited case, by this court, Judge Speer says:
"The evidence shows that the animal was killed within the appellant's station grounds in the town of Miami, and at a place where it is not required by law to fence its right of way. Railway Co. v. Blankenbeckler [13 Tex. Civ. App. 249] 35 S.W. 331, and authorities cited. In such case it is incumbent upon the plaintiff to prove more than the mere killing; he must prove that it was negligently done. But this does not mean negligence of the train operatives alone, for any negligence of the defendant proximately causing the injury will suffice to establish liability. In this case the testimony tended to show negligence in the construction and maintenance of some stock pens and wing fences, forming what the witnesses denominate a `pocket' that was dangerous to stock, and which was the occasion of appellee's mule being caught upon the track and killed. Negligence in this respect might be sufficient to show liability."
It is my opinion that the judgment of the trial court should be in all respects affirmed.