By the Court,
Whiton, C. J.We think the nonsuit in this case was wrongly ordered.
Admitting that the plaintiff was guilty of a trespass in per-piitting his horse to escape from his pasture and run upon the track of the railroad, still he was not outlawed. His property should be protected from wanton destruction. The testimony in this case tended to show, that, when the horse was upon the track of the road, the engineer, who had charge of the engine increased the speed of the train to an unusual degree. One witness, Dorn, testified that he “ heard the cars coming and saw a horse running on the track as fast as he could, about forty or fifty rods ahead of the cars. The cars came along very slow till they came to my place. The horse was on the track out of my sight. Then when the train was about eight rods on my place the engineer put on all the steam he could and went as fast as he could.” If the testi*235mony of this witness is true, the engineer was guilty of gross misconduct; and we think the judge who presided at the trial should have sent the case to the jury with instructions to find for the plaintiff, if they believed the facts to be as related by the witness. Many cases cited by the counsel for the company, to show that, as the company had the right to the exclusive use of the road, it could not be liable for the fault or negligence of its engineer in respect to property which was upon the track without its consent or permission. This undoubtedly is the general doctrine. Pierce on Railways, 321; 19 Penn. R., 298. But we do not think this principle ought to excuse negligence so gross as the testimony in this case tends to establish.
We have not noticed the supposed defect in the declaration because the plaintiff asked leave to amend it at the trial. Judgment reversed and new trial ordered.