delivered the opinion of the Court:
A reversal is asked, because the court below refused to give appellant’s fifth instruction. It asserted a correct legal proposition, and should have been given. It informed the jury, that, although the railroad company might have been guilty of ■ negligence in the management of their train, yet, if appellee, was also guilty of a want of proper and reasonable care and prudence on the occasion of the injury, by placing so large a number of mules in an inclosure of the size stated, then, unless the evidence showed that the conduct of the engineer was negligent, and not merely imprudent, the appellee could not recover.
This court has repeatedly held, that, in this class of cases, where it appears that the plaintiff has been guilty of negligence contributing to the injury, he cannot recover, unless it appears that the defendant has been guilty of negligence more gross than that of the plaintiff,—that in this class of actions the jury may compare the degrees of negligence. This instruction substantially told the jury, that, if appellee had been guilty of unreasonable negligence, and the engine driver had not been guilty of gross negligence, they should find for appellant. By this instruction the jury would have been required to determine whether appellee had been guilty of unreasonable negligence, and if so, then whether the employees had been guilty of gross negligence. If they had so found, then they would have been required to find for appellee; but, if they found appellee guilty of negligence, and the engineer of no greater or higher degree of negligence, they would have found for appellant.
The first count in appellee’s declaration proceeds for a liability in failing to fence their railroad track, whereby the stock were killed. The second and third counts proceed for damage to the stock from the negligence of the company. Each count containing a separate cause and ground of recovery, to succeed under it, the plaintiff must sustain it by proof of the facts contained in its averments. A count setting up one cause of action cannot be sustained by proof of another and different cause of action. To have recovered under the second or third counts, in this declaration, it was, therefore, indispensably necesssary to prove negligence on the part of appellant, producing the injury complained of and for which a recovery was sought. The sixth instruction announced these rules, and should, there-therefore, have been given. The judgment" is reversed and the cause remanded.
Judgment reversed.