It appears from the bill of exceptions settled and signed by the circuit judge, and filed with the transcript in the case, that thé bull in question, being upon the appellant’s railroad track, was run over and killed by its train of cars that were regularly running upon its road. It does not appear, nor is it claimed by the respondent’s counsel, that the appellant’s agents or servants who were operating the train at the time of the casualty were guilty of any negligence in its management. The train was a freight train consisting of about twenty cars; it was on a dowm gradé, when the bull and two steers were discovered upon the track, and those having control of it evidently did all in their power to avoid funning over the animals; the two steers ran off the track, *618but the bull staid on it until struck by the locomotive. The consequence resulted very seriously; the engine and some of the cars were thrown off the track, and the engineer and fireman both killed. The value of the bull, as compared to the destruction of property and loss of life in consequence of his being upon the railroad track, where the respondent had no right to suffer him to be, whether it was fenced or not, is very slight and inconsiderable.
The bill of exceptions shows that the appellant’s railroad track was not fenced at the place where the bull was on the same when run over; and the counsel for the respondent bases his right to a recovery in the action upon that fact. The liability of a railroad company for killing or injuring cattle upon its track arose heretofore out of negligence committed by the company in consequence of which the injury was done.
There could be no recovery in such a case without an allegation and proof that the company was guilty of violating some duty it owed to the public, and that the injury and damage complained of resulted from its failure to perform it, and a recovery could not then be had if it appeared that the plaintiff was also guilty of negligence which contributed to the injury.
An owner of cattle who allowed them to run at large and stray upon a railroad track -was formerly deemed guilty of such a degree of negligence as would defeat his right to recover in consequence of their being run over and killed, unless he could show that the agents and servants of the company acted wantonly, willfully, or reck? lessly in the affair. Permitting stock to go at large and stray upon a railroad track, where they would be liable to throw a train of cars off the track, and kill and injure passengers and destroy property, -was regarded as gross neglect upon the part of such owner.
The legislature, however, has somewhat innovated upon *619that rule, by adopting the provisions contained in sections 4044 and 4048 of the Code of Miscellaneous Laws of Oregon. These two sections, taken together, provide, in effect, that a railroad company shall be liable for the value of stock killed, and for reasonable damages when injured, upon or near any unfenced track of its road, whenever such killing or injury is caused by any moving train, engine, or cars upon such track; and that in every action for the recovery of such value for stock so killed, or for damages for such injury to the same, the proof of the killing or injury shall of itself be deemed and held to be conclusive evidence of negligence upon the part of the company; but contributory negligence on the part of the plaintiff in such action may be set up as a defense. The allowing of stock to run at large, however, upon common unfenced range, or upon inclosed land owned or in possession of the owner of such stock, shall not be deemed or held to be such contributory negligence; and, in any such action, proof of willful intent on the part of the plaintiff to procure the killing or injury of any such stock in the manner aforesaid shall defeat the recovery. Under these provisions, it would seem that a plaintiff is entitled to recover against a railroad company for the killing or injury of his stock, by alleging and proving that the company owned or operated the railroad; that its track was unfenced; and that the plaintiff’s cattle or horses were killed or injured, as the case might be, on or near the track, by a moving train, engine, or cars upon such track; that the company will be able to defeat the recovery by proof of contributory negligence on the part of the plaintiff; but that allowing the animals to run at large upon common unfenced range, or upon inclosed land owned or in possession of the owner of such animals, will not be deemed or held to be such contributory negligence. ¡
*620The statute makes the killing or injury of stock in such case conclusive evidence' of negligence upon the part of the railroad company, and I do not see that it is necessary for the plaintiff to allege negligence in any form. Fencing the railroad track is not imposed upon the company as a duty, but it is a fact which- of itself establishes conclusively that the' company is guilty of negligence; and the' only defense left' to the company is to plead contributory negligence upon the part of the plaintiff, or a willful intent upon his part to procure the killing or injury-
As' to what will constitute- contributory negligence in such a case must be determined by the courts. The statute has not attempted to settle that question further than to provide that allowing stock to' run at large upon common unfen'ced range, or upon inclosed lands owned or in possession of the owner of the stock, will not be deemed or held to be such negligence. This clause of the statute-must receive- a reasonable construction; it must be construed like all innovations upon the- rules of the common-law. The old law, the' mischief which the1 legislature is supposed' to have had in view, and the remedy applied to correct it, must be considered. Enacting, a provision that the allowing of stock to run at large upon common unfencéd range shall not be deemed or held to be contributory negligence, does not certainly- imply that its owner may allow it to roam wherever its propensity may influence it to go uncontrolled and uncared for; and that the owner' is entitled to recover its value if it goes upon a railroad track and is run over by a train of ears.
The legislature evidently did not undertake to relieve the owners of horses and cattle from the duty of keeping them within reasonable confines, although turned upon “the common unfenced range.” The owners of such stock owe a duty to the public, — the duty of keeping it *621away from localities in which it imperils the security and safety of persons and .propertjL The legislature may not have intended by the act that such .owners should employ herdsmen to constantly attend upon their stock and keep it within definite hounds, nor .did it intend to permit them to turn .their stock out to wander over the country generally. Where the owner exercises proper care in such cases to keep his horses and cattle within reasonable limits, and away from unfenced railroads, and they escape from his control, and go upon the track .thereof, and are run over by "any moving train, engine, or cars,” it could not be claimed that he was guilty of contributory negligence; but, on the,other hand, if he allowed such animals to range wherever their instincts .inclined them, and knowingly permitted them to go upon said railroad tracks, he would, in my opinion, be .guilty of such a degree of negligence as would preclude his right of recovery for their value if run over and killed by rail-cars.
If I am correct in this view, :then the defense of new matter set up by the appellant was a good defense, whether the bull in question was at large in violation of said section 3893 of the laws of Oregon or not. It was sufficient that the respondent knowingly allowed the brute to. range at large outside of the inclosure, and upon the appellant’s railroad track, to defeat the alleged right of action; it was clearly contributory negligence. A railroad company is doubtless liable, under the statute, for running its cars over cattle which go upon the track without the owner’s fault, where the track is unfenced, as where the cattle escape from the range or from the inclosure where they are kept; but it certainly cannot be held liable for so running. over them where the owner ¡knowingly allows them to range upon the track, unless the conduct of the agents .or managers of the train has been wanton or reckless in the affair. Knowingly, allowing the cattle to range upon *622the track, where they necessarily expose the lives and safety of the traveling public to constant danger, is, according to my notion, the highest degree of negligence upon the part of the owner, and should be regarded as contributory to the injury. The justice of the peace and the circuit court, in sustaining the demurrer to the new matter of defense set up in the answer, committed error, for which the judgment appealed from must be reversed; and as the case stands, this decision is conclusive against the respondent’s right of recovery therein.
The facts set forth in the answer as a defense may not be true, but the respondent, by demurring thereto, admitted their truth. The circuit court, as I understand the rule, had no alternative but to sustain the demurrer, or to determine the case in favor of the appellant, as that court, upon appeal from the judgment of a justice’s court, has no discretion except to try the case upon the issues as made up in the justice’s court.
The case, therefore, has to be remanded to the said circuit court, with directions to overrule the demurrer to the answer and render judgment upon the pleadings in favor of the appellant for costs, and that the respondent take nothing by his complaint.