(dissenting). It is claimed that negligence by defendant is shown in two respects: —
1. In not keeping the gates mentioned closed and locked. In the complaint the negligence alleged isas follows: “That the said defendant, by its agents and servants, not regarding its *190duty in that respect, so carelessly and negligently ran and man-, aged said locomotive and cars on the said twenty-third day of September, A. I). 1890, that the same ran against and over the said horses of the said plaintiff, and killed and destroyed the same.” This is denied by the answer. Negligence in leaving the gates open or unlocked is not mentioned in any pleading in the case. It is not the cause of action set up in the complaint. Defendant was summoned to court to answer for damages alleged to have been caused by operating its locomotive and cars. The jury found that it was negligent in this respect. But of this hereafter. They also found that the defendant was negligent in a wholly different matter, i. e., in leaving some gates open and unlocked. The respondent’s counsel recognized that the jury had gone outside of the case, and found damages for an act that plaintiff had not complained of in his pleading, and had not made his cause of action. Counsel, therefore, on his argument on the appeal, stated that he abandoned any claim that his verdict should be sustained by virtue of the finding of negligence as to the gates, or the evidence in that behalf. Why, under such circumstances, should the matter of the gates be treated as in the case? The defendant was under no obligation, by law or contract, to build or maintain a fence along its right of way. This action arose before the act of the last session of the legislature. It seems, however, that it did build and maintain such a fence. It put in these gates at the request of and for the accommodation of the neighbors at this point, not for any use of its own. It would not seem that building the fence and putting in the gates was negligence. The defendant did not use the gates, or in using them, leave them open. They were opened and left open by some one other than the defendant. That person is not shown to be the one for whose acts the defendant wras responsible. The defendant’s servants frequently voluntarily closed the gates when they found them open. Because they, without a duty upon them so to do, closed them whenever they found them open, was it negligence on their part that they did not always find them when they were opened by persons other than themselves? It seems to me not. But they were negligent in not keeping the gates locked and closed, it is held. If they locked them, and retained the key, the result would be the same as if there were *191no gates, and I do not understand that it is claimed that it was negligence to build the gates. If they hung the key on the fence, or provided every passer with a key, the result would be the same as if there were no locking.
But as to keeping the gates closed: The place was in the country, away from any town. If it was the company’s duty to keep the gates closed, there was but one effectual method of performing this duty. That was to keep a servant at every gate along the line (and the evidence shows that they were numerous), to close them after careless passers, who were strangers to the defendant. Is the defendant liable for such strangers’ acts? If this be the law, the defendant must put a guard over its entire property to protect it from negligent acts of third persons, which negligent acts may result in injuries to others, and for which the defendant is to be held liable. I do not understand that such duty rests upon the defendant. The jury found that it did, to be sure; but respondent’s counsel promptly abandoned any such ground in this court. In that I think that he was correct. I agree with him that in the matter of the gates no negligence was either pleaded or proved.
In Sweeny v. Great Falls etc. Ry. Co. 11 Mont. 523, the allegation of the complaint as to negligence was that plaintiff was working for defendant under defendant’s car, and that defendant carelessly and negligently, and without any notice or warning to plaintiff, backed or ran an engine against said car, and set it in motion, and while so in motion by reason of said careless and negligent act of defendant, the car ran over plaintiff, etc. After a careful examination of the evidence in that case, this court held that there was a failure of proof that the defendant moved the car without warning, as alleged, and that, therefore, the evidence was insufficient to support the verdict. So in the case at bar, the allegation of the complaint is the negligence in running the locomotive and cars. Proof in reference to the gates does not tend to support the said allegation.
2. I will now examine the cause of action as alleged and relied upon by the plaintiff’s attorney. The four horses were killed in the night between September 23 and 24, 1890. It may be taken as conceded that they were killed by defendant’s passenger train No. 5, which passed Kohr’s Siding, the place *192of the accident, at 3:35 A. m. The horses did not get on the track or right of way of defendant through any negligence of defendant. It may be considered as conceded that they did not get there through any fault of plaintiff. Under these circumstances, what happened? Plaintiff’s witnesses do not testify as to the facts at the time of the collision. For those facts we must go to defendant’s witnesses. The train came along about its business at 3:35 A. m. The track was near the river. The engineer testifies that he was in his position on the right side of the cab. That the track curved slightly to the left. He was running at thirty-five miles an hour, which was not a dangerous or unusual rate. His schedule time was thirty-five to forty miles an hour at that point. The headlight was burning. He saw one horse on his side, and the fireman saw one on his. The engineer thinks that he struck the horses on the curve. The night was dark and misty and foggy at the time and place of the accident. He could not possibly see to exceed two car lengths, or sixty feet. The train was equipped with air brakes, and the engineer had it under control. He saw the horses about sixty feet ahead of the engine, on the track. He was on the right side of the engine. The track curved slightly to the left. It is notin evidence that there has yet been invented any contrivance to make the rays of light travel through the atmosphere on a curve. That being the case, I am obliged to take it as true that the light from the headlight shown on right lines, and if the curve went to the left, the track left the area of illumination of the light. Naturally the engineer’s observation could not extend as far along the track as it would if the track were straight, so that the light would shine down it in a straight line. If it had been light and clear, the engineer says that he could have seen seven or eight ear lengths; and that, if he could have seen the horses ten car lengths ahead, he could have slowed up sufficiently and have alarmed the horses, so as to avoid striking them. Having but sixty feet of space, and running at thirty-five miles an hour, he could not stop, or whistle, or ring a bell; that is, he could not give his attention to stopping the train, and sounding alarms at once, in that distance, and at that rate. His first attention was given to applying his air brakes. The following is his language: <£I did not blow the whistle for the reason *193that I did not have time. I did not have time to ring the bell either. In an emergency, the first thing we do is to apply the air brakes. That is where our safety lies. I did not have time to turn them. If I should have done anything, I should have applied my brakes. I got hold of them. I had my air on them just as I was going by, and I let it off when I saw that it was all safe.” So it is testified, and it is not questioned that the engineer did his duty in getting to his brakes. Then he was past the horses, the danger was over, the damage was done. There was then no occasion for the bell or the whistle, and before undertaking to use the brakes, there was no opportunity to sound the whistle or bell. The fireman’s testimony is corroborative of that of the engineer. This is all the direct evidence of facts at the time of the accident. If this evidence is true, no reasonable being can read it and discover any negligence in the conduct of defendant. And, moreover, respondent’s counsel does not undertake to claim that there is any evidence of negligence if this testimony is true. He takes another position, viz., that the engineer and fireman did not tell the truth as to the circumstances of the killing. He says that they were manufacturing a case. This is a grave charge. It can scarcely be indulged as a presumption or assumption in regard to any unimpeached witnesses. These witnesses are unimpeached by any direct testimony. Eespondent finds their impeachment in circumstances, and holds that the jury were the judges of their credibility, and that their conclusion is final.
Of course, circumstances may impeach a witness more conclusively than words. The circumstances which respondent calls to his aid are in two classes. I will examine them : —
1. It was sought to impeach defendant’s witnesses by evidence that the weather, instead of being misty and foggy, as the engineer and fireman testified, was clear. If this be true, much of the foundation of the defense is demolished, and defendant’s main witnesses are impeached upon a very material point, and the jury were justified in ignoring their testimony, as they did. Let us see. Witness Eamsdell testifies that the weather was bright and clear at 9 or 10 o’clock of the morning of the 24th. Byron Wood says that the weather was smoky, but the sun was shining so as to cast a shadow on the afternoon *194of the 23d and the morning of the 24th. That in the morning there was no evidence of rain having falling in the night. He passed the night at Deer Lodge, four or five miles from Kohr’s Siding. He would not pretend to say how the weather was at the place of the accident, as he was not there. He should think that daylight would show at 2 or 3 o’clock A. M. on September 24th. This was an impeaching witness. Possibly the value of his testimony may be to some extent guaged by his statement that daylight shows three or four hours before sunrise. J. H. Meyers came from Philipsburg, fifty miles from the place of the accident, on the morning of the 24th, passing Kohr’s Siding at about 10 a. m. The weather was clear. Peter Patterson, a passenger on No. 5, left the train at Deer Lodge, about five miles before the train struck the horses. The weather was not stormy. He could not say that it was cloudy. Does not remember whether the stars were shining. There was no fog at Deer Lodge. He does not know how it was at Kohr’s Siding, four or five miles away, and later than the time of his observation. Joseph Smith was at Kohr’s Siding at 8 p. m. of the 23d and 7 a. M. of the 24th. The weather was good and no fog. Such is the evidence adduced to show that the defendant’s witnesses falsified when they said that there was fog and mist at the place of the accident at 3:35 A. M. Not an impeaching witness testifies as to the weather at the time and place of the accident. They are as far away as fifty miles in distance and ten hours in time. The one who gets the nearest in time — probably within fifteen minutes — is four or five miles distant; and the witness nearest in place is several hours removed in time. The place of the accident was in the valley by the river. Is it not within the most ordinary knowledge that it could be perfectly true that mist and fog could hang over the railroad track, by the river, at such an hour as 3:35 A. M., and still, miles away, and hours later and earlier, the weather be clear? This is too plain to merit discussion or comment. There was not in this showing a scintilla of evidence tending to impeach the testimony of the engineer and fireman of train No. 5. There was no conflict of evidence as to the mist and fog at Kohr’s Siding at 3:35 A. M., and for a considerable period each side of that *195exact time. The evidence was all one way, and was with the defendant.
But again, train No. 9 passed this point on the morning of the 24th, between 2 and 3 o’clock — about an hour before the accident. The engineer and fireman of No. 9 testified on the trial that the weather was then foggy and misty. To impeach this engineer of train No. 9, a report of his was introduced in evidence, in which he reports the weather at that time as clear. Grant that his report was true, and that his testimony on the trial was false, and that he was successfully impeached. What did this amount to at most? Simply that there was not fog or mist at the place of the accident an hour earlier in the night than the time of the accident. Can this be held as evidence that the fog and mist did not come up during the hour, and be present when train 5 appeared upon the scene? This would be indulging in meteorological presumptions unwarranted by any evidence in this case, or any experience of mankind. Again, granting that the engineer of No. 9 was impeached, does that impeach the engineer and fireman of No. 5? If so, that would be reforming the old maxim, so that it could be said of a collection of witnesses on one side of the case unus falsas, omnes falsi.
Again, grant that there was no evidence of rain in the morning; that does not tend to show that fog and mist were not present in the night, and which fled before the sun. The whole evidence seeking to contradict the alleged presence of fog and mist at the time and place of the accident has not the substantiality of a cobweb. There was absolutely nothing in it upon which a jury could find an impeachment of the credibility of defendant’s witnesses.
2. As to the other circumstances of impeachment: Bespondent argues that the places in which the horses were killed establish that the manner of their taking off was other than as detailed by the defendant’s witnesses. He says that first one was killed; the second was killed at a point five hundred and forty-three feet further on; the next, one hundred and thirty-two feet beyond; and the last, one hundred and twenty-five feet further. That this fact shows that the engine chased the horses, taking them single-handed, picking them off one by one, as it was able *196to reach and slaughter them, after the manner of the historical battle of the Horatii and the Curiatii. But what is the evidence that tbe horses were killed at these points? In the first place, not a witness testifies, nor a circumstance shows, that the horses were killed at these points by the train; and, in the second place, not one of the horses was killed by the train. At 9:30 A. it. of the 24th the section foreman found the horses, all crippled, in the ditch, and so badly hurt that they could not live, and he killed and buried them all. The measurements from which we take the above figures were made a week or ten days after the killing, and were to the places of their respective sepultures. It is not shown that they were buried where they were struck. It is not shown how far they were thrown by the terrific force that met them, nor how far they moved in their crippled condition between 3:35 and 9:30 a.m. They were all alive when the foreman found them. To hold that it appears that they were struck by the locomotive at the particular places where they were afterwards buried is, in the light of the facts, a pure assumption. So the whole fabric of impeachment dissolves. Defendant’s witnesses are left uncontradicted, and their testimony shows that there was no negligence of defendant in this accident. It seems to be considered in the majority opinion that it may have been negligence to run the train on card time through a bank of fog; but I supposed that the theory of the affirmance of this ease was that the fog did not exist. I am of opinion that the judgment should be reversed, and a new trial ordered.
My remarks, made to this point, were filed with the majority opinion on March 28, 1892. Since that day, the majority opinion has received additional matter, among it the criticism of my views which is now contained therein. I have now, at the June term, carefully examined that opinion. There is matter therein to which, as it occurs to me, some pertinent suggestions might be made; but a further review on my part at this time would seem to me more in the nature of a debate than a judicial consideration, and neither useful nor profitable.