The opinion of the Court was delivered by
Wright, A. J.This action is brought to recover damages for the loss of a cow alleged to have been killed on the 13th day of April, 1872, by the locomotive and cars belonging to the Greenville and Columbia Railroad Company.
At the conclusion of the plaintiff’s testimony, the defendant moved for a nonsuit on the following grounds, which are not now stated in the order in which they were presented:
1. Because the plaintiff had not shown any proof that the cow was killed by any train upon the defendant’s road track or by any employee of said railroad.
2. Because the plaintiff had failed to prove that there were commons near the railroad track or in that direction.
3. Because the plaintiff had failed to prove that the cow was killed by the exclusive negligence of the defendants, and because the plaintiff had testified to contributory negligence sufficient to defeat his action.
*170There was certainly prima faoie evidence that the cow of the plaintiff was killed by the train of the defendant.
The condition of the animal when found, her position in regard to the track of the railroad belonging to the appellant, and all the circumstances offered in evidence, were to be passed upon by the jury. It was a question simply of fact, on which the plaintiff had a right to the judgment of the jury.
A nonsuit should not be ordered where there is testimony, in the absence of counteracting proof, sufficient to sustain a conclusion in support of the fact on which a plaintiff relies to maintain the allegation of his complaint. Where there is an entire absence of evidence, there is nothing to justify the verdict of the jury; but where there is prima faoie testimony in support of his complaint, he has a right to the judgment of the jury as to its force and effect.
In Rogers vs. Madden, (2 Bail., 323,) it is said: “ The practice of ordering a nonsuit in invitum for defect of testimony is to be pursued with caution. If a plaintiff has any prima faoie testimony, he has a right to the verdict of a jury upon it.”
The course of this Court has been in conformity with the rule thus declared. The two other grounds on which the appellants rested their motion may be considered together.
The second charges contributory negligence in the fact that the appellee failed to prove that there were commons near to or in the direction of the railroad. This would imply that where such an animal as a cow is permitted to leave the enclosure of its owner, he is responsible for the course that “ its appetite or curiosity ” will incline it to take.
There is no statute in this State which forbids the straying of cattle on unenclosed land, nor is there even an ordinance in the city of Columbia, where this injury complained of was inflicted, that prevents cattle from running in the streets.
The charge of the presiding Judge was in all respects in conformity with the law in Danner vs. Railroad Company, (4 Rich., 329,) which was confirmed by this Court in Roof vs. Railroad Company, (4 S. C., 61.)
The motion is dismissed.
Moses, C. J., concurred.