This action is one for damages, for the
alleged negligent injuring of certain stock by the servants of the defendant railroad company. The stock — a mule and a horse — were running at large within that portion of Greene county which is included in the provisions of the act of February 28, 1881, entitled “ An Act to prevent the running at large of stock in certain portions of Greene county.” This act declares it “ unlawful for stock of any kind or description whatever to run at large” within a designated part of the county, and makes the owner liable to the party injured for any damages committed by said stock to any lands, crops, fruit trees, shrubbery, or other property” within the specified district. The owner, or manager of any stock, who knowingly suffers it to run at large, is, furthermore, declared guilty of a misdemeanor.
*549The principal question for decision is, whether a plaintiff, who suffers his stock to run at large within the prohibition of this act, is debarred from recovering damages for its negligent injury.
Apart from the influence of this special act, the law is unquestioned, that it is not such co'ntributory negligence, in this State, for the owner of stock to suffer it to run at large, as to prevent him from recovering for any damage negligently done to it by persons or corporations, owning or controlling railroads. Section 1712 of the present Code (1876) expressly declares that, in such cases, “ permitting live stock or cattle of any kind to run at large shall not be considered as contributing .to such killing or injury.” This would no doubt be the law without the statute, upon the ground that the negligence of the owner in such cases is rather the Temóte than the proximate cause of the injury, and can not, therefore, be regarded as contributory negligence.—South & North R. R. Co. v. Williams, 65 Ala. 74; Gothard v. The Ala. G. S. R. R. Co., 67 Ala. 114.
Does the special act above cited operate to change this principle? This question, in our opinion, is settled in the negative by the case of Jones v. The Ala. G. S. R. R. Co., decided at the December term, 1880 [not reported], in which we construed a similar act, approved February 14, 1872 (Acts 1871-72, p. 379), holding that it was “confined to the protection of growing crops, and had no reference to the liability of railroad companies.” We see no reason for departing from the doctrine 'of this decision, believing, as we do, that the cases to which we are cited by appellant’s counsel, in support of the. . opposite A7iew, are unsound in their reasoning, as well as repugnant to the rule of contributory negligence declared in such cases by our statute.
It is insisted that the plaintiff was guilty of an unlawful act in suffering his stock to run- at large, and that this debars his right of recovery. The rule, however, is, that “to deprive a party of redress because of his own illegal conduct, the illegality must have contributed to the injury.” — Cooley on Torts, 155. The fact of illegality here renders the act of permitting the stock to run at large neither more nor less contributory to the injury, or proximate as a cause of it. — Wharton on Neg. §§ 995, 331. The relation of the act to the injury complained of would be precisely the same, whether it was legal or illegal. It would have no more tendency to produce the injury in the' one case than in the other. This is the better and sounder rule recognized in the case of in juries.or accidents happening in the violation of Sunday laws.—Sherman on Neg., § 39; Whart., on Neg., § 331; Platz v. City of Cohoes, 42 Amer. Rep. 286, “ The same natural causes,” as observed by a learned court, *550“ would have produced the same results on any other day, and the time of the accident or injury, as that it was on Sunday, is wholly immaterial so far as the cause of it, or the question of' contributory negligence is concerned.”—Sutton v. Wauwatosa, 29 Wis. 21; Mohney v. Cook, 26 Penn. St. 342; Woodman v. Hubbard, 25 N. H. 67; Philadelphia, &c., R. R. Co. v. Towboat Co., 23 How. (U. S.) 209. “ The fact that a party, injured,” says Mr. Cooley in his works on Torts, “ was at the time violating the law, does' not put him out of the protection of the law; he is never put by the law at the mercy of others.” Cooley on Torts, 157.
The precise question tinder consideration has been decided,, in accordance with the foregoing views, several times by the Supreme Court of Illinois.—C. & St. L. Railroad Co. v. Woosley, 85 Ill. 370; Ewing v. C. & A. R. Railroad Co., 72 Ill. 25, and cases cited.
It is clear that, in all such cases, the plaintiff requires no aid from the illegal part of the transaction in order to establish his cause of action, and this is the test of recovery, both in actions ex delicto and ex Contractu.—Holt v. Green, 73 Penn. St. 198; S. C. 13 Amer. Rep. 737. He is debarred from recovery only when he can not prove his cause without being “ obliged to lay the foundation of his action in his own violation of the law.”— Way v. Foster, 1 Allen, 408; Gunter v. Leckey, 30 Ala. 591.
Under these views there was no error in the action of the court excluding the act of February 28, 1881, under‘consider.ation, from being given in evidence to the jury, or in the rulings of the court touching its relevancy-to the case.
The rule has been frequently declared by this court, in accordance with the generally recognized doctrine, that the law exacts of railroad companies, and other common carriers, in their use of steam power, extraordinary diligence, or “ that degree of diligence which very careful and prudent men take of their own affairs.”—M. & M. Railway Co. v. Blakely, 59 Ala. 471; Cook v. C. R. R. Co., 67 Ala. 533; Tanner v. L. & N. R. R. Co., 60 Ala. 621; Grey’s Ex’r v. Mobile Trade Co., 55 Ala. 387. There was no error in refusing the charge, requested by the defendant, exculpating the company from liability on the condition of having used only ordinary care and diligence. There are authorities which confine this rule of diligence to the transportation of passengers, but such is not the law in this State.
The court erred, however, in giving charge numbered 1/wo requested by the plaintiff. The statute (Code, § 1699,) requires the engineer, in control of a locomptive, “ to blow the whistle or ring the bell, at least one-fowrth of a mile before reaching *551any public road crossing, or any regular depot or-stopping place, and to “continue to blow such whistle or ring' such.bell,, at intervals,” until he passes such road crossing, or reaches such depot or stopping place. — Code, 1876, § 1699. ■ It is plain that no duty is imposed on the engineer to blow the whistle or ring, the bell at all, until the locomotive comes within one-fourth of a mile, which we judicially know to be four hundred and forty yards, of the road-crossing or the depot, as the case may be. Any conformity to the statutory requirement, prior to this, time, is entirely optional, and not peremptory.' The vice of the charge in question is, that it assumes the existence of the. duty at a time when the statute does not require its observance.
The judgment of the Circuit Court must be reversed *and the cause remanded.