A yearling mule belonging to appellee, having fallen into a wooden drain, called by the witnesses a culvert, open at the top, between the cross-ties laid upon stringers on appellant’s railroad, was run over and killed by a locomotive hauling a train of passenger cars in the night time. The engineer made a report of the accident at the conclusion of the trip, to' the company, as it was his duty by its rules to do, and after reading it over, he testified, on the trial of this suit brought by the owner of the mule to recover damages of the company, clearly and unambiguously in regard to the circumstances of the casualty. The accident did not happen near any depot,, road-crossing, town, or other place at which the statute requires the observance of certain regulations prescribed by the legislature, such as blowing a whistle, ringing a bell, or reducing the speed of the train, in order to prevent the occurrence of such accidents. The first question, therefore, asked of the witness on cross-examination, and his answer in the negative to it were not relevant and should not have been excluded. Whether the witness, after having run one of his trips, was able or not to “ state at what particular points, including depots and road-crossings and towns through which ” he passed, he “ rang the bell and blew the whistle and did all those things which are required of engineers in driving trains, from Stevenson to Memphis,” was matter that could not shed light on the subject under investigation. The circumstances attending the casualty complained of would naturally make a much deeper and sharper impression upon the memory, than the particulars of an ordinary trip during -which nothing unusual had happened, and of which no report need be made.
The drain or culvert referred to was open at top, not covered, except as crossed by the superstructure of the railroad; and the court charged that “ the failure of the defendant to cover the cross-ties of the culvert, to prevent stock from falling into or getting fastened in it, was such negligence as would make the defendant responsible for the damages resulting from the killing of plaintiff’s mule, if fallen into or fastened in the culvert.” This was erroneous. A company authorized to build a railroad on land in which it acqnires a right of way, is entitled to the exclusive use of the road when built for the service'.of the public. It may be made, as such structures usually are, with culverts, upon trestle work, aiong steep embankments or near the edge of a precipice. And as *75it is constructed only for the locomotives and cars of the company to run on, and not to be used as an ordinary highway, for the passage of persons or animals, it is not incumbent on the company to provide against accidents to them, by laying floors or erecting railings or other safe-guards at such dangerous places. The laws of this State do not require that either a railroad,(or the lands of individuals, shall be so fenced about and enclosed that domestic animals going at large cannot get upon them. Of course, though, the owners of such unenclosed property would be liable for damages resulting from any violence they should do to live stock straying thereupon, whether produced by acts wilfully, or only negligently committed. But it does not follow that they must take upon themselves the care or protection of such wandering stock, or that, through fear of doing hurt thereto, they must refrain from using their own premises in a law'ful manner, beneficially for themselves. The owners of animals that are turned out to go at large — “in the range” — must bear the loss that may come to them from any mere accident not attributable to the positive misconduct or carelessness of another person. Our statute, however, provides that “ when any stock is killed or injured, or other property is damaged or destroyed by the locomotive or cars of any railroad, the burden of proof in any suit brought therefor, is on the railroad company to show that the requirements ” prescribed by law, to prevent such accidents at road-crossings, depots, and other specified places along the railroad were complied with, that is, if the accidents occurred at such places; and that wheresoever they happened, they were not caused by negligence on the part of the railroad company. — Code of 1876, § 1700 (1401); M. & O. R. R. Co. v. Williams, 53 Ala. 597; Mobile & Montgomery Ry. Co. v. Blakeley (in MS). But the enactments which purport to make any railroad company of this State liable for live stock or cattle injured or killed by its cars or locomotives, though done without any fault or neglect on the part of said company or its agents, have been adjudged to be in conflict with the constitution of the State and void. — Zeigler v. South & North Ala. R. R. Co. (in MS.)
The evidence at the trial tended to show that, although the head-light of the locomotive was of the best kind then in use on the railroads of the country, and was well trimmed and in good order, yet it did not enable the engineer to see the mule until the locomotive was within thirty yards of it; that the train was then running .at the rate of twelve miles an hour and could not be stopped within a distance short of forty yards; that the mule was small and of the same color as the earth near it, and between the cross-ties which were laid upon *76stringers across the culvert, and that the culvert was some five or six feet deep. The court charged the jury that, if defendant did not furnish the engine with such a head-light as would enable the engineer to see said mule more than thirty yards ahead, then the running of the train at such a speed as would prevent its stopping in less than that distance, would make the defendant liable for damages resulting from such a cause.
The idea at the bottom of this charge, is probably correct. Those who employ the tremendous yet easily controllable power of steam-engines on railroads, must be vigilantly careful to avoid committing with them, the destruction they are capable of effecting; and due care to this end, is not observed when a train is run thereon at such speed that it cannot be stopped within the limit at which the engineer can plainly see upon a straight track an object of the size of a man or a young mule tbereon. We say on a straight trade, because the statute prescribes the precautions to be observed where it is curved. Of course, though, we do not mean to intimate that the engineer must begin to stop a running train whenever he perceives in the distance a person or animal upon the track, through fear of hurting such person or doing an injury to the owner of the animal. Management of that kind would greatly impair the usefulness of railroads, and prevent their due connections with other roads. And the engineer is certainly justified, in presuming that living beings will get out of the way of his train when they can easily do so. The law on this point was explained in Tanner v. Nashville & Decatur R. R. Co., (in MS.) and need not be here repeated.
But the mule colt, the subject of this suit, must have been in a great degree hidden from sight. How far the track was lighted up by the head-light, does not appear. The proof is only, that it did not enable the engineer to see the animal) situated as he was in the culvert. Nor was it shown how much of him was visible above the track. Perhaps it was only his struggling to get away from the approaching train, that brought him into view. If the track was well lighted a much greater distance by the head-light, but the mule by reason of his situation, could not be seen until tbe locomotive was within thirty yards of him, and it could not be stopped within a shorter distance than forty yards, certainly neither the railroad company, nor the engineer would be in fault for tbe misadventure of killing the animal. And the Circuit Judge manifestly erred in undertaking to declare as matter of law, that it was negligence to run the train at a speed from which the engineer could not bring it to a stand *77still within the distance at which he could under the circumstances, see this mule in a culvert, or partly in a culvert of the railroad. The question of the negligence or not, should, with proper instructions by the judge as to the law, have been left to the jury to decide upon the evidence.
Let the judgment of the Circuit Court be reversed and the cause be remanded.