dissenting.—I am unable to concur in the result reached by the majority of the members of the court in this case. I cannot assent to the view that an owner of' domestic animals can pasture them upon the depot grounds of a railroad company without being chargeable with such a degree of negligence as will preclude his right to a recovery of damages for their injury or destruction by moving trains of cars upon the track of the road, unless done intentionally. There is no stronger evidence to my mind of carelessness and negligence upon the part of such owner than to allow the animals to go at large and wander about such places, where they are necessarily exposed to being run over and killed. My learned associate, who prepared the majority opinion herein, has with great care and research collated a large number of both English and American authorities upon the subject, and drawn as a conclusion therefrom that where the common law rule, which required the owner of stock to keep it within his own enclosure, did not prevail, his permitting it to run at large would not, if it were to stray upon a railroad track and receive injury, necessarily be such negligence as directly contributed to the injury; and he attempts to show that the common law rule referred to does not obtain in this State. As an abstract proposition, I make no contention respecting that view; but in the determination of all this class of cases, we must look squarely at the facts and circumstances in order to make a just decision. Theories and distinctions, however specious and refined, cannot disprove a self-evident truth.
It appears from the bill of exceptions that the respondent has lost two horses which have been run over and killed by rail cars upon the road in question, and it is very evident that if he had a large band, and took no better care of them than he did of the one in question, as shown *404by the testimony, he 'would lose them all in the same way, unless the company ceased to operate its road and turned its depot grounds into a horse pasture. The bill of exceptions states that “the evidence tended to show that said horse at the time when he was struck by defendant’s locomotive was running at large on defendant’s depot grounds in the town of Tangent, Linn county, * * * and had at different times previously to said day been seen occasionally pasturing upon said depot grounds. The plaintiff resided at all times.in said town of Tangent, and 700 or 800 feet "away from said depot grounds.” This court knows judicially that the railroad in question constitutes a part of a line of road extending from Portland, Oregon, to San Francisco, California, a distance- of more than 700 miles, and is the main avenue of transportation of passengers and freight between the two States. That in operating it a large number of trains of cars and rolling stock are employed, and that at all such points as that in question, horses and cattle could not be permitted to pasture upon its depot grounds with any degree of security, however vigilant and careful those having charge of the trains and rolling stock might be in regard to their management. Yet the respondent, living in said town of Tangent, within a few hundred feet of the place where his horse was killed, permits it to run at large upon the lands of the company-adjoining the depot, which must necessarily be left open in order to enable the public to transact business with the company. To conclude that such act, under the circumstances, is not the result of supine indifference and negligence upon the part of the owner of the animal would, it seems to me, be absurd and stultify reason. The respondent. probably resided upon a town lot, and having no ground to pasture his horse upon, concluded he might forage upon the company’s land. He knew, of course, that he had ro right to allow his horse to run there; knew that he was exposing the animal to imminent peril by doing so; but the opportunity was so favorable for nipping herbage from another’s land free of expense, that he was *405willing to take the risk of sacrificing the life of the horse. I can conceive of no carelessness more censurable than to allow horses and cattle to run at large in such a locality; and no prudent man would think of permitting it out of regard for the beasts themselves. But there are other far more important considerations than the regard for the animals and their value; these things are incomparable to the damage liable to accrue in consequence of running an engine, and train of cars over such animals. Several employés upon railroads have lost their lives during the last year or two from such incidents, and thousands of dollars of damage done; cars have been thrown from the track and the lives of passengers jeopardized.
A railroad company can illy afford to run its engine and cars over an animal, and will not do so where it can possibly be avoided,' whether liable for its value' or not. The respondent had no legal or moral right to suffer his horse to be at large upon the railroad company’s depot grounds. He was thereby doing the company and the public a positive wrong, and I am opposed to his being rewarded for his unj ustifiable negligence in that particular. That his act, in allowing the animal to go where it did, directly contributed to the damages he seeks to recover, and which the jury graciously awarded to him, there can be no doubt, if viewed from a common sense standpoint. This is not a case involving the right of stock to run at large upon a range or open common. There the land is thrown open or left open by the voluntary, act of the proprietor, which is construed to be an implied license to the owners of domestic animals to use the same for grazing purposes. But here the railroad company is compelled to leave its depot grounds open for the accommodation of the public, for the purposes of receiving and delivering freight and for the convenience of persons traveling upon it. The grounds being left uninclosed under such circumstances, cannot be construed into a license to pasture them, and the conditions are of such a character as to impliedly forbid it. Nor do I oppose the view expressed in the said opinion regarding *406the duty of employes of a railroad company to use reasonable effort at all times to prevent the injury or destruction of such animals when found upon the track of the road, although they are there wrongfully. Because cattle or horses go upon a railroad track through the negligence of their owner, it does not follow that the company has the right to kill them; its employes should always avoid running them down where they are able to stop the train without injury to it or without endangering the safety of passengers. But I am decidedly opposed to a trial court, referring such a question to a jury, unless there is evidence in the case tending to establish the fact that they could reasonably and safely have stopped the train. The majority members of the court assume that the evidence in this case tended to prove that the managers of the train, by the exercise of reasonable diligence, could have obviated ' the casual uy in question. I very much doubt, however, whether it warrants that assumption.
The statement in the bill of exceptions in regard to that matter is as follows: “That said locomotive was at the time attached to one of defendant’s regular passenger trains, which passed through said town and depot grounds, from north to south, about one o’clock P. M. of the day, which was the regular time for said train to pass said station at Tangent; that upon approaching said station, and when about three hundred yards distant therefrom, the engineer in charge of the train signalled his approach to said station by sounding the whistle; that said horse was at the time either upon the depot grounds alongside the track -or else upon the public road at the north, boundary line of the depot grounds, and soon thereafter was seen upon the track of the railroad on the depot grounds, which track near the road was elevated some ten or twelve feet, and at the place where the horse was struck was elevated six or eight feet above the surrounding, ground; that soon after the whistle was sounded the horse was so seen upon the track between the last named two points on the depot grounds, and was walking towards *407the approaching' train as if intending to reach 'said county road, which crosses the railroad track at that point; that when the horse had progressed a few steps in that direction upon the track, the engineer sounded the alarm whistle twice or oftener and turned the steam through the cylinder cocks to drive the horse from the track; that the horse was at that time from sixteen to sixty feet from said road, and the train was distant from the horse from one hundi’ed and eighty to two hundred and fifty feet, on the opposite side of the said county road; that when the engineer so sounded the alarm whistle the horse turned immediately around on the track, and started running back along and upon the track towards the south and away from the train, but was overtaken and struck by the train within from forty to sixty feet from where he so turned around on the track. * * * That there is a conflict of evidence as to what the speed of the train was when said horse was first seen to go on the track and said alarm whistle was sounded, and as to whether or not said speed was slacked before the horse was overtaken and struck by the locomotive, and as to whether or not the engineer endeavored to and could have stopped the train after the horse went upon the track and before he was struck by the locomotive, the speed of the train when the horse went upon the track being variously estimated, by witnesses, at from eight to twenty miles per hour, and some of the witnesses testifying that the speed of the train was consider ably lessened before the horse was struck, while other witnesses testified that they could not perceive that the speed of the train was at all diminished between the sound ing of the alarm whistle and the striking .of the horse: The engineer testified that immediately upon sounding the alarm whistle he applied the brakes, reversed the engines, and did all that was in his power to do towards stopping the train, which was running about three miles per hour when the horse was struck. The other witnesses who testified were standing on the depot platform, some three hundred feet distant from the point where the horse was *408struck by the locomotive, and nearly in a direct line with the length of the approaching train, and some of them stated that they did not, and some of them that they did, think the engineer endeavored to check the speed of the train before striking the horse. ”
I do not think the jury was justified in finding from, the facts, under the most favorable construction to the respondent which they could reasonably give them, that the employes of the company in charge of the train were guilty of violating their duty in the particular referred to. I do not believe that the facts were sufficient to sustain an allegation that said employes, by the exercise of reasonable care and diligence, could have avoided striking the horse with the locomotive.' A finding by the jury that a train was running at the maximum or minimum rate supposed by the witnesses, or any intermediate rate per hour when the alarm was sounded, and that it was 250 feet from the horse at the time—the greatest estimated distance—and that the engineer was not endeavoring to stop it, and could have done so, after the horse went upon the track, and before it was struck by the locomotive, would not have been sufficient to establish such wrant of care, or negligence, as it would have lacked the further essential fact that the train could have been stopped within the distance indicated, and upon that character of grade,'without danger of wrecking it, and imperiling the safety of those on -board. An engineer of a railroad train is charged with a responsible duty, and he must be the judge, in the event of an emergency, as to the proper course to be pursued. He is often compelled, in cases of threatened danger from causes such as existed in this case, to accelerate instead of retarding the speed of the train, in order to save his own life, and the lives of others depending in a great measure upon his prudence and discretion. It would therefore be highly unjust to impute negligence to his conduct in the performance of his duty without proof of all the facts necessary to constitute it. It could hardly be supposed that a person entrusted in so important a station as that of engineer *409upon a passenger train of cars, m>uld neglect to check the speed of the train in order to avoid running over a horse discovered upon '-the track, where it could be effectually and safely done. No one knows better than the engineer himself that his own life is in imminent peril whenever such an occurrence happens, and the law of self-preservation, if no other consideration, would prevent him from voluntarily taking such a risk. I think it may reasonably be claimed'as a rule of evidence in such cases that the engineer is presumed to have performed his duty unless the contrary is shown by direct and positive proof. In this case, however, no proof of any neglect on the part of the engineer, or of any of the employes of the company, was attempted to be established, except by remote inference, not deducible from the facts claimed.
It seems to me, therefore, that when the circuit court gave the instruction: “In this case, if you believe from the evidence that the plaintiff was guilty of negligence in allowing his horse to be upon the depot grounds of defendant, and that such negligence contributed to the accident, still if you believe the accident could have been avoided by the exercise of ordinary care and diligence on the part of the defendant, the defendant is liable, ” it committed error. Cases of this kind are too important to the public to be- left wholly to the decision of a jury who, in ninety-nine cases out of a hundred, will determine them from sympathy, prejudice and caprice. Courts have a responsibility to perform aside from announcing abstract propositions of law. It is the duty of a trial court and of this court to see that justice is administered, and it cannot be shirked by a pretext that the case was a proper one to be determined by the jury. In the trial of actions at law where the testimony in support of the issues is conflicting, it is the province of the jury to determine the facts; but the court should always carefully scan the testimony and ascertain upon what issues between the parties it is conflicting, and not shuffle the whole responsibility on to the jury. The instruction above set out left the jury in this *410case free to determine it according- to their own notions of right, and without regard to the rules of law. The court had refused to give the instruction requested by the appel: lant’s counsel, that it was negligence in the owner of a horse to voluntarily permit it to run at large and seek pasturage upon railroad depot grounds, and if it were unintentionally injured by the employes of the railroad through negligence in operating its cars, while the horse was so trespassing upon such grounds, the. owner of the horse could not recover damages from the railroad company for such injury; and after such refusal proceeded to tell the jury that if they believed from the evidence that the plaintiff was guilty of negligence in allowing his horse to be upon the depot grounds of defendant, and that such negligence contributed to the accident, still, etc. By this instruction the question as to whether or not the plaintiff was guilty of negligence in allowing his horse to be upon the depot grounds of defendant, and that such negligence contributed to the accident, a very important question of law, indeed, was left entirely to the belief oí the jury from the evidence Yet this part of the instruction is less objectionable than the latter clause thereof, as it restricts the jury in their finding, whether the plaintiff was guilty of negligence on account of the act referred to, and whether Such negligence contributed to the accident, to their belief from the evidence, while the latter clause,—to the effect that if they believed that the accident would have been avoided, etc., would indicate that they might find the defendant liable from general belief, or belief derived from any source. The rule that a railroad company may be liable for killing stock upon its road, although ■wrongfully there, does not arise out of any new principle; it has always been recognized as a wholesome doctrine that an owner of property had no right to destroy or mistreat another’s cattle found trespassing upon the property, but must exercise reasonable care and prudence in removing them.- The issue in this case was to this effect: The plaintiff said to the defendant, “My horse, without *411any fault of mine, wept upon your railroad track, and your agents and servants so carelessly and negligently ran and managed your locomotive and cars upon said track, that the same were run against the horse and thereby killed it, to my damage, etc.” The defendant said in answer thereto: “My agents and servants were not guilty of the alleged carelessness and negligence, but the damage of which you complain resulted from your own carelessness and negligence. ”
Now, vthe plaintiff having failed to charge an intentional injury to his animal, should, in order to avail himself of the rule which allows a recovery in such cases, in favor of a party guilty of contributory negligence on his part, have averred in the reply that notwithstanding the alleged carelessness and negligence charged against him in the answer, he was still entitled to recover the value of his horse, for that the agents and servants of the defendant might and could, by the exercise of reasonable efforts, have avoided running the locomotive against the animal, and that they wholly failed to make such efforts. This would have presented the real issue in the case, an issue tendered by the plaintiff, and which he would have been compelled to maintain by a preponderance of evidence; but he tendered no such issue in his reply. Upon the contrary, he merely denied the allegation of his own carelessness and negligence in the affair. The court, however, cast the burden upon the defendant of proving not only that the plaintiff was guilty of carelessness and negligence which contributed to the injury, but virtually required the defendant to show that it could not have avoided the accident by the exercise of ordinary care and diligence. The said instruction, substantially, went to that effect. It was to the effect that if the juiy found the plaintiff was guilty of negligence in the affair, “and that such negligence contributed to the accident, still the defendant was liable if the jury believed that it could have been avoided by the exercise of ordinary care and diligence on the part of the defendant. ” Under that view, a *412plea on the part of a defendant, in an action against him for negligence, that the plaintiff was 'also guilty of negligence which contributed to the injury, would not be good unless it were averred in the plea also that -the result could not have been avoided by the exercise of ordinary care and diligence on the part of the defendant. Nor would the defendant's proof in support of his plea be of any avail unless it incontestibly established that the occurrence could not have been avoided by the-exercise of such care and diligence on his part. The logical aspect of the instruction is far beyond my comprehension. If the plaintiff’s negligence contributed to the accident, and the defendant was so guilty of negligence in the affair, then it was necessarily the result of their joint wrong, and it certainly could have been avoided by the exercise of ordinary care and diligence on the part of the plaintiff. Why, then, should the defendant be liable to the plaintiff for its wrong when the plaintiff’s wrong was at least equally as instrumental in producing the result?
This will be the first case on record, I imagine, where contribution between wrong-doers has been enforced by a court of justice. If there had been evidence in the case tending to show that the conduct of the agents and servants of the appellant was reckless in the transaction which resulted in the destruction of the respondent’s horse, or which indicated a total indifference and.disregard of the respondent’s rights of property, and such fact had been alleged in the complaint, or set forth in the reply, the trial court might very properly have instructed the jury that if they found that such had been the conduct of the agents and servants of the appellant, they would be authorized to find him liable, although the plaintiff were guilty of negligence which’ contributed to the accident; but in order to admit of a recovery in such a case, the conduct of the defendant must be proven to have been something more than negligent.- It must be shown to have been wilfully done, for upon no other ground can a plaintiff recover damages against a defendant for an injury resulting from *413the joint act of both parties. The law will not tolerate so illogical a sequence as the allowance of a recovery of damages by one party against another on account of a transaction in which they are in pari delicto. But to submit to a jury questions of fact, where there is no evidence in the •case which will warrant them in making a finding thereon, or to submit to them questions involving both law and fact in a confused mass, and then send them out to guess at a verdict, is a travesty upon justice. I do not think the respondent was entitled to recover the judgment appealed from, nor see how it can legally be upheld. It is unjust in principle and pernicious in its consequences, and was evidently obtained by sham and pretense. The idea that those in charge of the train of cars in question ran it against the horse purposely, or failed to do all in their power which could safely be done to avoid the collision, is too absurd and preposterous to be credited for a moment.
The courts of this State cannot afford to tolerate a sentiment which ignores the rights of any parties litigant, whether belonging to natural or artificial p arsons. Because the appellant is a wealthy railroad corporation, and possibly arbitrary, extortionate and exacting in its dealings with the public, it does not follow that its rights should be ignored; nor is it good policy on the part of the community to countenance or encourage such practice. We must deal honestly and fairly by railroad companies, whether they do so by us or not. Such a course will be found to be by far the best in the long run. We may succeed in compelling them to pay for a few horses and cattle belonging to thriftless owners, who would probably prefer to have them run over and killed, if they could get anywhere near their estimate of value of the animals, than to exert the slightest effort to prevent the occurrence; but the advantage will be very inconsiderable as compared to the injury which retaliatory measures, if resorted to on the part of the railroads, would occasion, and it would be very unwise to incite any such antagonism. Railroad companies should be required to do their full duty to the public, and if it *414need legislation to enforce it, stringent measures should be adopted. But to allow a petty system of illegal and unjust plundering of them will prove to be an indiscreet and short-sighted policy.