If the horse had been rightfully upon the defendants’ land, it would have been their duty to exercise reasonable care to avoid injuring the horse. But it being admitted by the plaintiff that his horse was trespassing upon the railroad, they did not owe him that duty, and were not liable to him for anything short of a reckless and wanton misconduct of those employed in the management of their train. The defendants were therefore entitled to the instruction which they requested. Tonawanda Railroad v. Munger, 5 Denio, 255; S. C. 4 Comst. 349. Vandegrift v. Rediker, 2 Zab. 185. Railroad Co. v. Skinner, 19 Penn. St. 298. Tower v. Providence & Worcester Railroad, 2 R. I. 404. Cincinnati, Hamilton & Dayton Railroad v. Waterson, 4 Ohio St. 424. Louisville & Frankfort Railroad v. Ballard, 2 Met. (Ky.) 177.
The instruction given to the jury held the defendants to the same obligation to the plaintiff as if his horse had been rightfully on their land; and made their paramount duty to the public of running the train with proper speed and safety, and their use of the land set apart and fitted for the performance of that duty, subordinate to the care of private interests in property which was upon their track without right.
Some passages in the opinion in Eames v. Salem & Lowell Railroad, 98 Mass. 560, 563, were relied on by the plaintiff’s counsel at the argument, and apparently formed the basis of the rulings of the learned judge in the court below. But in that ease there was no evidence of any negligence or misconduct in the *461management of the train, and an exact definition of the defendants’ liability, by reason of such negligence or misconduct, was not required. In the present case such a definition was requested by the defendants in appropriate terms, and was refused, and for that refusal their Exceptions must be sustained.