The assignments of error relate exclusively to the refusal of instructions to the jury requested by the appellant. These instructions proceed on the proposition that it was negligence in the plaintiff, contributing to the loss of the oxen, to abandon the pursuit of them, in the night time, in proximity to the track of the road of the defendant, with knowledge of the frequent passing of trains. It is a right of the owner of domestic animals'to permit them to run at large, and willful or negligent injury to them is a wrong furnishing him a right to recover the consequent damages ; that they were at large, is not in any sense contributory negligence. A railroad company is liable for the negligent injury to stock straying on its track ; and when the injury is shown the presumption of negligence arises, which the company must remove by evidence. — Code, § 1L47, note. While the statute will not be so construed as to enable an owner of stock who willfully turns his cattle upon a railroad track to recover for injuries to them, there is no room for the imputation of negligence from the fact that the cattle are at large with his consent. — 2 Sherman & Redfield on Negligence, § 452. The abandonment of the pursuit of the oxen, was .no more than consent for them to run at large ; and that they might run at large, was the legal right of the plaintiff ; and it has been too often decided, now to be doubted, that it is not contributory negligence. — 3 Brick. Dig., 726, §§ 117 — 19.
Let the judgment be affirmed.