Dissenting Opinion.
' Manning, J.Wait states the doctrine concerning fencing railway tracks to be that, when no statutory regulations exist defining the duties of railway companies in respect to fencing, they come within the common law rule, and are under no obligation to make or maintain fences between their roads and the adjoining lands. 4 Actions and Defences, 684. The authorities he has cited support him, but they are from England, and those of our States that have not changed the common law.
There is excellent reason why the rule should be different in America and in England. By the common law of England every person was obliged to keep his cattle on his own land, and hence, the importance and value there of common of pasturage. The right to graze one’s cattle on another’s land was and is there constantly asserted and jealously preserved. If cattle roam at large in England without a keeper, the owner is guilty of negligence. This rule prevails in some of our' States just as it was derived from England, and is retained without the justifying necessity that England has for it, and which suggested its adoption. And hence, the decisions of the English Courts and of" those States upon the liability of railway companies for the destruction of this particular kind of property—cattle—ought not to apply here.
Even on general principles, why should not the omission by a railway company to fence its track be of itself prima facie evidence of negligence H A railway can be operated only by powerful and dangerous machinery, and it is therefore bound to use greater precaution to prevent injury to others. The same author who has laid down so broadly the doctrine above cited immediately qualifies it$ but a railroad is bound to use every reasonable care to prevent cattle from straying on the line of its road, and if cattle are upon the track, whether' lawfully or unlawfully, and are injured or killed through the inexcusable negligence of the company’s servants, the company will be held liable, and authorities from nine States are cited. Wait in loe. cit. Now, if a railway company is bound to use every reasonable care to prevent cattle from straying upon its track, is not building a fence the most certain method of keeping them off, and a certain method of ■ preventing a thing is reasonable care to prevent it.
Surely it will not be disputed that a railway company is under the same obligation to fence its track or land that rests upon every other-proprietor. This has been expressly adjudicated in many States, some *503of which like our own have no law compelling a railway to fence, and the omission to fence is held to draw after it the assumption of the risk from straying stock.
Thus the court of Mississippi held, although as a proprietor a railway company is under no greater obligation to fence its land than any other proprietor, yet in the event of an injury, the fact that the road was not fenced must and would exercise an influence in weighing the degree of care to be employed by the company, and when an injury is done, the omission to fence will be considered along with other circumstances in determining the measure of diligence to be used by the company or its agents. Vicksburg R. Co. vs. Patton, 31 Miss. 157.
In the leading case in Ohio the court say: “ it is true there is no law in Ohio requiring railroad companies to fence their roads, but when they leave their roads open and unfenced, .they take the risk of intrusions from animals running at large, as do other proprietors who leave their lands unenclosed.” Kerwhacker vs. Cleveland R. Co., 3 Ohio, 185. And if this be true of animals running at large, with how much greater force does it apply to those pasturing upon the land of their owner?
Just as the English doctrine had its origin in the necessities of that country, so a rule has been adopted in many of our American States, founded upon the condition of our country and responsive to the needs of its inhabitants. Unenclosed lands in those States are called “ the range,”, upon which the inhabitants turn their stock to feed at will, and this recognised right has led to enactments defining what is a lawful fence, the object being, not as in England, to keep one’s cattle in, but to keep the cattle of others out. We have such a law here. When an owner of stock is sued here by a proprietor of land for damage caused by his stock entering upon the land, and the defence is that the proprietor had not a lawful fence, will it not be good if sustained by proof ?
The conclusion seems to me perfectly logical and inevitable that, as it is not in this State a trespass for cattle to wander upon unenclosed lands, they whose cattle stray upon an unenclosed railroad trade are not wrongdoers, and the company is liable for ordinary negligence when it kills them.
if that conclusion be logical and inevitable, it would be singular if there were no adjudications to that effect, but on the contrary the books ave full of them. Thus it has been held: If stock is injured by a railway company when the injury might have been prevented by ordinary care, the company will be held liable although the owner of the stock was also in some degree negligent. Central R. Co. vs. Davis, 19 Ga. 437.
*504Where the engineer in charge, by use of ordinary care and skill, could have stopped the train in time to avoid the collision, the company is liable, although the stock was wrongfully upon the track. Toledo, P. & W. R. Co. vs.-, 57 Ill. 514.
If a railway company has no right of way, the owner of stock is not required to keep them off the track. They are in his enclosure rightfully, and if they go upon the track they are not there wrongfully, and if injured by the company it is prima facie liable. Matthews vs. St. Paul R. Co., 18 Minn. 439.
The defendant company has the right of way over the plaintiff’s land, but its track divides his land in two parts, and in a precisely similar case it wTas ruled: even if the company was running its trains over the land by the owner’s license, yet the road having divided his pasture land into two parts by its track making it necessary for the owner’s cattle to cross it, the company would still be liable for cattle killed in crossing the track; for such right to cross is not inconsistent with the right of the company even when compensation has been fully paid. Waterbury vs. Housatonic R. Co., 23 Conn. 101.
And this being a correct statement of the law it is manifest where the burden of proof lies, for if the cattle are rightfully upon the railroad track at the time of the injury, proof of that fact and of the injury makes aprima facie case of negligence, and the burden of proof is on the company to exculpate itself by shewing it was not the fault of its servants but of the plaintiff, or was the result of an unavoidable accident, and it has been so held. 1 Thompson on Negligence, 512, citing cases from five States. And so it is true, that when the cattle are pasturing upon the land of their owner at the time they are injured, as were the plaintiff’s cattle in the present case, that fact of itself makes a prima facie case of negligence against the company. Danner vs. So. Car. R. Co., 4 Rich. 329.
The rules of the defendant company in evidence make the killing of Stock negligence on the part of their employees, thus recognising the existence and justice of these legal principles in regulating the relations of those employees to itself, and there is greater reason for holding the company to them in enforcing against it liabilities which it has incurred to others.
I think the inferior Judge erred both ways. His rejection of the demand for the value of five mules is error because against law, and his approval of the demand for the value of the mule killed in October is error because against the evidence.
Rehearing refused.