In Wallace v. Railroad (74 Mo. 595), an action such as this, for the killing of a colt within the corporate limits of the city of Poplar Bluff, near the defendant’s coal-shed and depot, an instruction, substantially the same as the instruction in the present case, was given. The instruction was held “ faulty in failing to tell the jury that the defendant was liable if it failed to use proper diligence and endeavors to avoid the injury after discovering the animals on the trade.'” This case has since been frequently followed. The rule is that, where an animal, through no fault of the railroad company, gets upon the railroad track at a point where the defendant is not required to anticipate the presence of the animal, the railroad company’s liability is confined to a failure on the part of its servants to use ordinary care to avoid the injury after discovering the peril in which the animal is. Hoffman v. Railroad, 22 Mo. App. 549. The instruction in this case was faulty in not so confining and limiting the defendant’s liability.
Judgment reversed and cause remanded.