— Section 1699 of the Code of 1876 exacts certain duties of “ the engineer, or other person, having the control of the running of a locomotive on any railroad in this State.” Among them is the following: “ He must, also, on perceiving any obstruction on the track of the road, use all means within his power, known to skillful engineers (such as the application of his brakes and the reversal of his engines), in order to stop the train.” Section 1700 declares, that “ a railroad company is liable for all damages done to persons, stock, or other property, resulting from a, failure to comply with the requirements of the preceding section, or any negligence on the part of such company or its agents; and when any stock is killed or injured, or other property 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 of the preceding section.were complied with,' at the time and place when and where the injury was done.” The proper construction of these sections is, that “ in any suit for injuries to property, the burden of proof is on the railroad company, to show that these regulations were observed, if the injury occurred at any one of the places mentioned in the statute.” — 8. & N. R. R. Co. v. Thompson, 62 Ala. 494; M. & O. R. R. Co. v. Williams, 53 Ala. 595.
It is not shown, in the present case, that the injury occurred within one-fourth of a mile of a public road-crossing, or depot, or stopping place on the railroad, or within any curve crossed by a public road, on a cut where the engineer can not see one-fourth of a mile ahead, or that the train was entering, passing through, or leaving the corporate limits of a town or city. If it had occurred at any one of the places mentioned, then, by the very letter of the statute, the burden of proof would be east on the railroad company, to show that the requirements of section 1699 were complied with. "We think the same principle applies, and that the burden of proof is cast on the railroad company, where the injury results from an obstruction on the track of the road. As soon as it is perceived, the engineer must use all means within his power, known to skillful engineers, to prevent the injury.
It may be urged, however, that it is not shown the obstruction was perceived by the engineer, and, hence, there can be no imputation of negligence. A mule is a pretty large object. All trains, running at night, carry head-lights, casting a bright light on the track before them; and the engineer, keeping a proper look-out, will perceive so large an obstruction as a mule on the track, some time before encountering it. It then becomes his duty to apply the brakes, *78&g. We think the policy of our legislation was and is to relieve plaintiffs, suing for injuries to stock, &c., from the necessity of calling railroad employes, and thus making them witnesses, on all questions which impute negligence to such employes. Hence, .where facts are shown, from which, in the ordinary course of events, a presumption arises that some one. or more of the active duties required by law to be performed by the employe are called into requisition, the shifted burden then takes effect, and the railroad company must make the necessary proof.
To apply this principle to this ease : When it is shown that the mule was killed by a train running on defendant’s track, this proves the mule must have been on the track when struck by the train. This raises the following inquiries, if not others: Was the mule stationary on the track, or had he just gotten upon it? At what distance ahead of the train was the mule discovered by the engineer, or could have been discovered with proper watchfulness ? Were the brakes applied, and the engine reversed ? What means were employed to prevent the injury; and if none were, why were they not employed ? On all these questions, the duty and burden of proof rested on the railroad company. The bill of exceptions purports to set out the substance of all the evidence, and it does not appear that any evidence whatever was offered by the railroad company.
We agree with the presiding judge in the court below, on the facts shown in this record, “ that the question of Scott’s inclosure and fence, or inclosure around his farm, was one with which the jury had no concern.” On the facts shown in this case, the same degree of watchfulness, the same use of means within his power, were demanded of the engineer to prevent the injury, as if it had occurred outside of any inclosure. Engineers, in running trains, should always be on .the look-out for obstructions; and when discovered, no matter when or where, should promptly resort to all means within their power, or known to skillful engineers, to escape the impending danger, or to avert the threatened injury. Less than this is not due diligence.
Except in localities where they have a no-fence law, it is no offense, or violation of law, to permit stock to run at large; and it does not vary the question, if the stock escaped from the keeper through, his negligence. This cannot enter into the question of contributory negligence. To deprive a party, injured by the negligence of railroad employes, of the right to recover for such injury, the contributory negligence must be proximate, — contributing directly to the injury complained of. — Tanner v. Louisville and Nashville Railroad Co., 60 *79Ala. 621. The conduct of the driver in this case, even if negligent, is too remote to enter into the question of defense. Under these principles, the Circuit Court did not err in giving the two charges asked by plaintiff, nor in refusing the charges asked by defendant.
The record fails to show any error, and the judgment of the Circuit Court is affirmed.