The general rule is, as is insisted by counsel for the appellant, that an action for a tort must be prosecuted in the name of the party having the legal interest; and, if it be an injury to property, in the name of the party having the legal title to the property at the time of the in jury.—1 Chit, on Pl. 69 ; Roberts v. Connelly, 14 Ala. 235. "We pass over the fact, that of a part of the stock injured the plaintiff had not only possession, but the general, absolute property. Of the others, and of the plantation to which they were attached he had the open, unmolested possession, exercising the dominion of ownership. The bare possession of personal property constitutes a sufficient title to enable the party enjoying it to pursue legal remedies against a mere wrongdoer. In legal contemplation “possession, indeed, may be considered as the primitive proof of title, and the natural foundation of right.”—Linscott v. Trash, 35 Me. 150. The possessor of personal property is prima facie the owner; and the presumption of ownership arising from it is not disputable by a trespasser, who does not connect himself with the true title.—Cook v. Patterson, 35 Ala. 102; Hare v. Fuller, 7 Ala. 717; Cox v. Easley, 11 Ala. 362. There is no force in the suggestion that Ellis, not the plaintiff, had the possession of the stock. He was the mere overseer or servant of the plaintiff, supervising and managing the plantation under his instructions, not asserting any interest in the property, or possession of it, as distinguishable from the possession of the plaintiff, and incapable of maintaining in his own name any action for an injury to it. — Heygood v. State, 59 Ala. 49. We think it indisputable that the plaintiff was entitled to maintain the action.
The instruction given on request of the plaintiff is not drawn very carefully, and, it may be, without explanation, had a tendency to divert the consideration of the jury from material evidence, and to mislead them. If this be true, the Circuit Court could, without error, have refused to have given it; but, having given it, the defendant, to obviate its misleading ten-*494deucy, should have requested explanatory or additional instructions. And such instructions not having been requested, a reversal of the judgment, because of the tendency of the instruction to mislead, can not be allowed. As we construe the instruction, it affirms that the jury were authorized, not bound or compelled, to impute negligence to the defendant, if they found from the evidence, that the injury occurred on a clear, star-light night, when the train was running at such a rate of speed, that those having charge of it, by the employment of all the means in their power, could not stop it within the distance that, by the aid of the head-light provided, they could see obstructions on the track, and the injury would have been avoided if a suitable head-light had been provided, and proper diligence exercised. The charge requested by the defendant affirms, that the plaintiff was guilty of contributory negligence in suffering the stock to run at large near an unenclosed railroad, upon which trains were passing day and night.
The relation, the respective right, duty and liability of the owners of domestic animals, such as horses, mules, cattle, sheep, swine, etc., stock as they are usually termed, suffered to run at large, and a railroad company operating trains upon an unenclosed road, the statutes define and regulate, and have been the subject of numerous judicial decisions.—Code of 1876, §§1699 -1704; N. & C. R. R. Co. v. Peacock, 25 Ala. 229; M. & C. R. R. Co. v. Bibb, 37 Ala. 699; N. &. C. R. R. Co. v. Williams, 65 Ala. 74; Jones v. Ala. Gt. Sou. R. R. Co. [Not reported.] The doctrine of the ancient common law, that the owner of domestic animals must keep them in his own close, and can not, without becoming a trespasser, suffer them to run at large upon the unenclosed lands of others, never prevailed in this ’ State. There was not probably a principle of the common law so little suited to the actual condition of the territory of the State in its early settlement, and more illy adapted to the general understanding and unvarying habit and custom' of the people; and it is not reconcilable with the legislation in reference .to estrays, and injuries to, and damages done by wandering domestic animals. This legislation is founded upon the theory of the right of the owner to suffer them to run at large, protection to him in the exercise of the right, and subjection of him to liability for damage done by them oniy when they break a lawful enclosure. — Code of 1876, §§ 1552-97. The owner can not be regarded as a trespasser, or as contributing to their injury, if he suffers them to go at large, and they wander upon an unenclosed railroad. In turning them upon, or suffering them to go upon lands not enclosed, he is in the exercise of a lawful right; and to demand of the company operating trains upon a track not enclosed to prevent them from wandering up*495on it, ordinary care and diligence to avoid injuries to them, is also his lawful right. The right is the same in character and degree, as his right to exact from any other landed proprietor, whose premises are not enclosed, the same duty, if the animals are found upon such premises. The company has the undoubted right to the free, unmolested, exclusive use of the road, for the purposes to which it is appropriated, and, if under all the circumstances, ordinary and reasonable care and diligence are exercised to avoid injury to animals found upon the road, the duty to which it is subject is performed, and for injuries unavoidable it can not be made liable.—Zeigler v. S. & N. R. R. Co. 58 Ala. 594.
Whether ordinary and reasonable care and diligence have been in a particular case observed, or whether they have been omitted, is generally a mixed question of law and of fact. When the" facts are not disputed, and the deductions or inferences to be drawn from them are indisputable; or, if the standard and measure of duty are fixed and defined by law, and are the same under all circumstances, the question is for the decision of the court, and not for the verdict of the jury. But if the facts are disputed, or, if not disputed, the existence of negligence is an inference, which, as mere matter of discretion and judgment, may or may not be drawn from them, the question must be submitted to the jury.—2 Thomp. on Negl. 1236-40. In M. & C. R. R. C. v. Lyon, 62 Ala. 71, we held that it is negligence $>&r se, negligence as matter of law, for a railroad company to run its train in the night-time, with a head-light not having sufficient capacity to cast light upon the track so that the engineer could perceive obstructions for the distance within which the train could be stopped. It was not intended to assert more than that it is the duty of railroad companies to employ the best machinery and appliances which are in use, and the failure to employ them, in view of the hazardous agencies they control, the dangers necessarily incidental, is a want of the care and diligence a man of ordinary prudence would observe. The omission to provide them is a violation of the duty enjoined by law, and if there be no more in the particular case than the omission and consequent injury, the court may, as matter of law, declare there is actionable negligence. The proposition must, however, be accepted with limitations and qualifications; from unknown causes, the machinery and appliances may, in the course of travel, become defective, or natural causes may intervene which render it inefficient; the train can not be expected to stop on the track. The stoppage may involve more of peril than its continued running as the machinery will permit; and, if under such circumstances, reasonable care and diligence are observed, negligence could not be imputed. If it were true, that from *496fog, or from chiving rains or snow, the light cast from a proper bead-light was obscured, the running of the train with reasonable care in view of that circumstance could not be deemed negligent. This, however, is an inquiry the instruction does not involve. The dark, cloudy night, and the dense fog were, as the evidence of the defendant tended to show, the causes obscuring the light, and not any defect in, or insufficiency of the head-light. The instruction proceeds upon the hypothesis that these causes did not exist, that it was a clear, starlight night, a phase of the case shown by the evidence of the plaintiff, and that the head-light was insufficient, and not such a light as the defendant was bound to provide, and the failure to provide a proper light was, under the circumstances, evidence of negligence for the consideration of the jury. The proposition that it is the duty of railroad companies to adopt the best precautions against dangers which are in use, to procure and employ good and safe machinery and appliances, such as are most in use, and approved by the skillful and experienced in the operation of trains and the management of railroads, and the omission of the duty, to say the least of it, is evidence of negligence, can not be seriously controverted.—1 Thomp. on Negl. 495; F. & B. Turnpike Co. v. P. & T. R. R. Co. 54 Penn. St. 345. This is all the instruction, properly construed, can be regarded as asserting.
We find no error in the record prejudicial to the appellant, and the judgment must be afih’med.