The ruling of the Superior Court was based upon the assumption .that the plaintiff’s horse, at the time he was killed, was an estray trespassing upon the railroad. If this assumption was correct, the ruling was right. Darling v. Boston & Albany Railroad, 121 Mass. 118, and cases cited.
But we are of opinion that it was a question of fact for the jury to determine whether the horse went upon the railroad through the negligence of the plaintiff or his servants. The plaintiff’s farm extended on both sides of the railroad and of the highway, which at this point ran for a considerable distance nearly parallel with the railroad, his pasture being on the north side and his bam on the south side; He had a private lane or passageway running from the highway across the railroad track to his bam. We must assume, for the purposes of this hearing, that it was the duty of the defendant to keep suitable gates across this lane on both sides of the railroad track. The plaintiff’s servant went to bring the horse and some oxen from the pasture to the bam. He left the gate of the pasture open, intending to catch and lead the horse and drive the oxen. The horse ran out of the gate, traversed the highway about fifty rods, and turned into the lane; by reason of the insufficiency of the gate on the northerly side of the track, he crossed the railroad, and was stopped by the gate on the southerly side. While there, he was frightened by an approaching train, ran upon the track and was killed. After he left the highway and turned into the lane, he was lawfully upon the plaintiff’s land, and this distinguishes the case from the eases cited by the defendant.
Upon these facts, it cannot be said, as matter of law, that the horse, when he went upon the railroad track, was an estray, unlawfully at large. The real question is, whether the servant of the plaintiff, in allowing the horse to go from the pasture to the barn unconfined, was guilty of negligence which contributed to the accident, and this is a question of fact for the jury. We *105carme fc hold, as matter of law, that it is negligence in a man to drive his horse from one part of his farm to another over a highway as this horse was driven. It might depend upon the nature of the place and the character of the horse.
If the jury, upon all the evidence, are satisfied that the plaintiff’s servant was guilty of no negligence upon the occasion when the horse was killed, then the horse was not a trespasser; and the plaintiff may recover, if he proves that the injury was caused by the defendant’s neglect of its duty to maintain the gate.
Exceptions sustained.