Dissenting Opinion.
Reinhard, J.I can not agree with the opinion of the majority in its view of the law in relation to contributory negligence. We all agree that where no order of the board of commissioners is shown by which stock is permitted to run at large, the common law prevails as to owners keeping up their stock, and the only question is, to what extent will the rules of the common law hold a man guilty of negligence who fails to keep his domestic animals in his own enclosure ?
Conceding that the appellant was negligent, in that its servants, who were operating the train, did not see the animal in time to take the proper precautions against running against it, the question still remains, was the animal rightfully upon the appellant’s road track, or was it a mere trespasser? If a trespasser, what amount of care and precaution was the appellant required to exercise toward it ?
It will not do to say the animal was a trespasser, but its owner was free from fault. If the acts of the animal were such as to make it a trespassing animal, the responsibility for such acts are imputed to the owner, and he is held liable for them.
At common law the owner of animals is compelled to keep them at home. If they break out and enter upon the lands of another, doing injury, he is liable in damages. Stone v. Kopka, 100 Ind. 458; Williams v. New Albany, etc., R. R. Co., 5 Ind. 111; Lafayette, etc., R. R. Co. v. Shriner, 6 Ind. *312141; Page v. Hollingsworth, 7 Ind. 317; Indianapolis, etc., R. R. Co. v. Kinney, 8 Ind. 402; Myers v. Dodd, 9 Ind. 290; Indianapolis, etc., R. R. Co. v. McClure, 26 Ind. 370; Michigan, etc., R. R. Co. v. Fisher, 27 Ind. 96; Indianapolis,, etc., R. R. Co. v. v. Harter, 38 Ind. 557; Jeffersonville, etc., R. R. Co. v. Huber, 42 Ind. 173; Jeffersonville, etc., R. R. Co. v. Adams, 43 Ind. 402; Pittsburgh, etc., R. W. Co. v. Stuart, 71 Ind. 500. See the note in 2d ed. 10 Ind., pp. 292-293, citing decisions under common law.
If, then, such animals become trespassers when they enter upon the lands of another, without reference to the quality of the fences through which they pass, as decided in Stone v. Kopha, supra, they are no less trespassers when they enter upon the lands of a railroad company used for a railroad track. But it appears some distinction is sought to be made between different kinds of trespassing animals, clearly implying that railroad companies will be required to exercise one kind of care and diligence toward one class of such trespassing animals, and another kind toward another class. If the rule is to be established that in all cases the question as to whether the animal is to be considered such a trespasser as will hold its owner guilty of contributory negligence or not depends upon whether it is at large with the consent of the owner, then will such companies be required in each case to know the circumstances under which the animal happened to be there, whether by the sufferance of its keeper or as the result purely of its own breachv and roguish propensities. In other words, the company or its servants will be held to know at their peril whether the animal is a trespasser by consent of its owner, or a trespasser upon its own responsibility.
I freely concede that there is a conflict in the authorities, outside of the courts of Indiana, upon the definition of the common law rules, and as to how far the owners of domestic animals are responsible for their being at large. I believe it will be found, however, that many of the cases holding to the view expressed in the opinion of the majority are in States *313where the doctrine of comparative negligence prevails, a doctrine which finds no place in the law of our State. But whatever may be the rule in other States, I am fully persuaded that there is no uncertainty in the decisions in Indiana, excepting, perhaps, some of the older cases, and I believe that upon examination many of the cases cited in the majority opinion will be found to sustain the doctrine to which I refer. In other words, I believe it is the settled common law of Indiana, that in the absence of an order made by the county commissioners allowing stock to run at large the owner is compelled to keep his animals in his own enclosure, and if they escape and enter upon the lands of another they are trespassers and he is held to be a wrong-doer, and if they stray upon a railroad track and are killed or injured at a place where the company is not bound to fence, the owner is charged with contributory negligence and can not recover even if the killing or injury was negligent, and can recover only if the killing or injury was wilful. Whether this law is reasonable or not, is not now the question. If it is so declared we are bound by it until it is overruled by the Supreme Court. In Lafayette, etc., R. R. Co. v. Shriner, 6 Ind. 141, the court says: “ The common law imposes on the owner of domestic animals the duty of keeping them on his own lands, or within enclosures, and he becomes a wrongdoer if any of them escape or stray off upon the lands of another. 3 Black. Com. 209—210; Wells v. Howell, 19 Johns. 385. This, as a general rule, prevails in Indiana, and may be held applicable to the facts of this case.”
If it be said that the question was not properly before the court in that case, as the facts showed that the owner permitted the animal to go at large, then let us turn to a later decision.
In the case of Pittsburgh, etc., R. W. Co. v. Stuart, supra, the action was for the negligent killing by the appellant of the appellee’s horse, which entered upon the track at a point where the company was not bound to fence. The *314complaint charged, in express terms, that the horse was on the track without the owner’s fault when he was killed. This averment was, therefore, one of the- issues in the case. In the court below there was a trial and finding for the owner of the horse, assessing bis damages at the value thereof. From the judgment of the lower court the railroad company-appealed, and the Supreme Court, in passing upon the sufficiency of the evidence to sustain the finding, made a clear enunciation of the common law rule in Indiana. It cited approvingly the cases of this and other States where that doctrine had been before declared, and proceeded to state further : “ It must be assumed, therefore, that, at the time and place where the appellee’s horse was inj ured, the common law rule prevailed, and that the horse was then and there trespassing upon the track of the appellant’s railroad. This is so, as it seems to us, even though it appeared that the appellee had used reasonable care and diligence to keep his horse upon his own grounds and within his own enclosure, and that the horse had escaped therefrom without his knowledge or consent
The court goes on then to review the cases, saying at the conclusion of such review that it was not necessary that it should endorse or approve of the statements of the law enunciated in the cases decided by the courts of other States, some of which it had quoted. But it nowhere appears/in the opinion that the court did not fully endorse and approve the statement it had itself framed, in which it had clearly set forth the rule of law as we have quoted it above in italics; or that it had made that statement with any sort of mental reservation whatever. On the other hand, and as if the court desired to place beyond further controversy what it had decided upon this point, it informs us that “the appellee’s horse had escaped from his enclosure, and was trespassing on the track of appellant’s road. In this state of the case the appellant certainly owed no such duty to the appellee as required the stoppage of its train, in violation of its duty to its passengers; and that its employes in charge of the train *315should go forward and carefully lead or drive the horse from the track of its road.”
It will not do to say that the case turned upon the question of negligence on the part of the company or its servants. Negligence was one of the questions it is true, but contributory negligence was another question, and the case hinged as much upon one as upon the other of these points, and could not have been intelligently decided by ignoring either.
We think, also, that in several of the other cases cited in the opinion of the majority, the doctrine here contended for is tacitly recognized, if not distinctly enunciated. No case has been cited, and I do not believe any can be found, where a doctrine similar to that set up in the opinion of the majority has been declared to be the law in Indiana. Until that is done, however, this court is in duty bound to accept the decisions of the highest tribunal as the established law of the State.
It may not be unprofitable to remark that by some of the recent text-writers Indiana is classed with those States where the common law rule prevails. Thompson Neg., section 418.
To my mind there is a clear distinction between the case of an animal which is at large by virtue of an order of the board of commissioners, and one where no such order has been made. In the former case the order is a matter of record of which the world is bound to take notice, while in'any other case of an animal at large the public can not be presumed to know in what manner it escaped or how it came to be upon the track. Thus, in cases where such an order is in existence, it becomes the duty of the servants and employes of a railroad company to be on the alert at crossings and other places not fenced, and to exercise a higher degi’ee of care in ascertaining the presence of animals at such places, the presumption being all the time that there will be animals at large, while if no such order is made, the presumption is directly the opposite. In the former case the company must use ordinary care and diligence. In the latter, as the pres*316ence of the animal on the track of the road constitutes it a trespasser, its owner will be charged with negligence in suffering it to escape or be at large, and in case of injury the railroad company will only be liable in case of wilfulness, or acts from which the same may be inferred or will be regarded as such in law.
Filed May 2,1891. Filed May 2, 1891.For these reasons I respectfully dissent from the decision announced in the principal opinion.