This is an action on the case, brought by Augustus against the Terre Haute, Alton & St. Louis Railroad Company, for negligence in running their cars, by which the cattle and hogs of the plaintiff were killed. The declaration is at common law, and not under the act of the legislature, entitled “ An act to regulate the duties and liabilities of railroad companies.” Laws of 1855, p. 173.
Under this act, it is not deemed necessary for the owner of the property killed, when no fence has been erected, to allege and prove carelessness or negligence on the part of the company, in running their trains. It is sufficient, in such case, to prove the fact of killing. At common law, the plaintiff, averring negligence in running the trains, must prove it before he can recover.
In this case, there is a total absence of all proof on that point. The killing only, and the value of the animals, was proved.
The action being at common law, it was erroneous to instruct the jury, that “ if they believe, from the evidence, that the defendants did not fence their road as required by the statute, and that the plaintiff’s cattle were killed by the cars of the defendant, after the 14th of August, 1855, then the defendant is responsible for the value of the cattle, whether the killing resulted from the negligence of the defendant, or not, and they must so find.”
This instruction would be proper had the declaration brought the case within the statute.
The judgment is reversed, and the cause remanded, with leave to the plaintiff to amend his declaration.
Judgment reversed.