The opinion of the Court, was delivered by
Gibson, J.An action for such an injury as is laid in this declaration is founded in negligence, of which there was not a particle of proof at the trial. The Company was using its chartered privilege in the usual way, and its act-was lawful. Doubtless case may be maintained for negligence in conducting a railway train as well as in conducting any other vehicle, as was ruled in Bridge v. The Grand Junction Railway, 3 M. & W. 244; but what *302is such negligence has not been entirely determined. In Aldridge v. The Grand Western Railway, 4 Scott, N. R. 150, S. C. 1 Dowl. N. S. 247, an action was maintained for suffering sparks to fly from the engine to a bean-stack; and this is all we have for it in the shape of decision. No doubt a company is answerable for gratuitous damage; but what evidence was there of such damage in this case ? Absolutely none. The testimony is consistent, and it shows that the train was going at the usual speed; that it was within three hundred feet of the spot when the cow jumped suddenly from the ditch to the track; that the engine was instantly reversed and the signal given to brake; and that alacrity could do no more. The retropulsive power at the disposal of the engineer, was applied in vain. Had he been able to stop the train in time to save the cow, he could not have done it without perilling the passengers. Granting what one of the witnesses testified, that the cow might have been seen at the distance of fifty rods by the way side, and granting that the train might have been stopped within it; yet the engineer was not bound to stop it. He had no reason to apprehend that she would leap into the jaws of death, or that it was necessary to anticipate her.
But high above this stands the impregnable position that a railway company is a purchaser, in consideration of public accommodation and convenience, of the exclusive possession of the ground paid for to the proprietors of it, and of a license to use the greatest attainable rate of speed, with which neither the person nor property of another may interfere. The company on the one hand, and the people of the vicinage on the other, attend respectively to their particular concerns, with this restriction of their acts, that no needless damage be done. But the conductor of a train is not bound to attend to the uncertain movements of every assemblage of those loitering or roving cattle by which our railways are infested. Any other rule would put a stop to the advantages of railway travelling altogether. And for what deprive the country of one of the best improvements of this most wonderful age ? For no more than to enable a few unpastured cows to pick up a scanty subsistence in waste fields and lanes. If the bullocks, cows, horses, sheep, or swine of the neighborhood were allowed to block the way, the prohibition of intrusion by drovers or travellers, using their own means of conveyance, would be of little use. For the sake of the company and the passengers, the conductor and his subordinates will be vigilant to remove obstructions; but the protection of the property is merely incidental. If the owner of it do not attend to it, the company’s servants, having their own business to mind, are not bound to do so; and he who trusts his property to the chances of accident is bound to stand the hazard of the die. Knight v. Abert, 6 Barr 472, is to the point. In *303that case the intrusion was on woodland; in this it was on the exclusive possession of ground paid for as an incorporeal hereditament.
So far we have treated the case as if the plaintiff’s skirts were clear; but they are not. By the common law of England, an owner of cattle is bound to keep them in an enclosure or in custody at his peril, for every entry by them on another’s possession is a trespass: by the common law of Pennsylvania, he may let them go at large without incurring liability for an entry by them on woodland or a waste field. To entertain an action for an inappreciable injury, would encourage vexatious and unprofitable litigation ; and be contrary to" the maxim de minimis, which is peculiarly appropriate to the circumstances of the people here. But if such an intrusion would occasion substantial damage, the English rule would be applicable to it, on the principle that the owner of a bull which has gored another’s ox must pay for it. Is not the intrusion!' of an animal on a railway, which has a direct tendency to throw a train off the track and endanger life and member, an injury to the persons involved in the risk? It is conceded that an American company is not bound to fence its railway as an American farmer is bound to fence his fields; and this shows that persons who suffer their cattle to go upon it, do so on their own responsibility. Every English railway is fenced — not to protect it from cattle, for none are at large — but to prevent detriment or detention from other causes. In a country so new and so sparse as ours, of which the trunks of the principal railways are more -extensive than the island of Great Britain, the cost of fencing them would be greater than could be borne. The rights and responsibilities of a people, are shaped by the circumstances of their condition. If they will have railways, they must be content to have them in the only way they are practicable; and the English rule must be applicable to them. If an owner suffer his cattle to be at large, it must be at the risk of losing them, or paying for their transgressions. The very act of turning them loose, is negligence as regards any one but an owner of a forest or a waste field; and the owner of them is consequently responsible to every one else. That he is not answerable for them to a railway company criminally, like a caitiff who has laid a log or a bar across the track, is because mischief was not intended by him. But no prudent man in his predicament would be the first to make a stir about it.
The charge was accurate in its outline, but not in its details. As has already been said, there was no evidence of negligence on the part of the defendant; yet the existence of it was left to the jury as a debateable matter. In another part, he even took the fact for granted. “The simple fact,” he said, “of permitting, for a limited time, the cow to wander on the railroad, would not of itself be such negligence as to excuse all negligence on the part *304of the defendant.” Had there been evidence to raise the point, the direction might have been well enough; but the application of the principle in the particular instance was wrong. In Sills v. Brown, 9 C. & P. 605, it was ruled that in cases of accident with carriages or ships, mutual negligence, if contributive to the injury, bars an action for it; a principle enforced by this Court in Simpson v. Hand, 6 Whart. 311. But it was erroneous to predicate it of a case in which the negligence was all on the side of the plaintiff. He further charged, that “ if the plaintiff knew his cow was wandering on the railroad, it was his duty to drive her therefrom. He had no right to suffer her to be there; and if he suffered it, knowing her to be there, he was guilty of such negligence as would prevent his recovery. But if his cow casually wandered away, ordinary care being used to restrain her, the simple fact of her being on the track would not excuse the defendant’s negligence.” Now the making of this gratuitous imputation of negligence and ignorance of the cow’s whereabout, turning points of the cause, is the root of the error. As loss of the property is not a penalty for the owner’s supineness in the care of it, of what account is his ignorance of its jeopardy ? The irresponsibility of a railway company for all but negligence or wanton injury, is a necessity of its creation. A train must make the time necessary to fulfil its engagements with the post-office and the passengers; and it must be allowed to fulfil them at the sacrifice of secondary interests put inpts way; else it could not fulfil them at all. The maxim of solus populi would be inverted; and the paramount affairs of the public would be postponed to the petty concerns of individuals. Every obstruction of a railway is unlawful, mischievous, and abate-able at the cost of the author or owner of it, without regard to his ignorance or intention. It may seem cruel to make a dumb brute suffer for the fault of its owner; but it must be remembered that the lives of human beings are not to be weighed in the same scales with the lives of a farmer’s or a grazier’s stock; and that their preservation is not to be left to the care which a man takes of his uncared-for cattle. Allowing them to prowl for their food, he may not wash his hands of the consequences of it. In a country so obnoxious to the charge of indifference to human safety, it is a high and holy charge of the Courts to hold to their duty, not only those to whom it is immediately committed, but also those'by whose defaults it may be remotely endangered; and to hold them hard. We are of opinion that an owner of cattle killed or injured on a railway, has no recourse to the company or its servants; and that he is liable for damage done by them to the company or the passengers.
Judgment reversed.