— This is a suit by Charles C. Dickens against the Southern Railway Company to recover dam: ages for the alleged negligent killing, of a cow, the property of the plaintiff. There were verdict and judgment for the- plaintiff, and from the judgment the defendant appeals.
In addition to the plea of the general issue, the defendant filed special pleas 2 and 3, which in effect set up as a defense to the- action that the plaintiff was bound by a written contract with defendant, made on a valuable consideration, to maintain at his own cost and expense fencing on each side of the defendant’s road where it passed through plaintiff’s lands, and that he carelessly and negligently, and contrary to his duty under the contract, alloAved the fences to be and become in an unsafe and insecure condition, and in some places broken doAvn, in consequence of >vhich the animal for the killing of which the suit is brought got upon defendant’s right of way and Avas killed. This failure to keep up the fences, it is averred, proximately contributed to plaintiff’s damages. The court sustained a demurrer to this plea, on -the grounds that the plea fails to shoAV that the injury complained of Avas the proximate result of the alleged contributory negligence, and that no causal connection betAveen the alleged contributory negligence and the injury complained of is shoAvn. It has been held in some jurisdictions, notably in Ohio (Cincinnati, H. & D. R. Co. v. Waterson, 4 Ohio St., 425; Pittsburg, C. & St. L. Ry. Co. v. Smith, 26 Ohio St. 124), that where a plaintiff is under contract with a railroad company to build and maintain fences between his lands and a railroad right *287of way, and in consequence of his failure to build or maintain such fences his stock wander on the railroad and are killed by its engine, the road cannot be made liable, except upon proof of wantonness or of intentional wrong. The same doctrine is held in Indiana (Bond v. Evansville, etc., R. R. Co., 100 Ind. 301); but in the lafe ter state there is a statute which requires railroads to be fenced. Each of these cases proceeds on the theory that the stock were trespassing on defendant’s road at the time of the injury.
The precise question presented has not been determined by our court; but in cases involving the-killing of animals in districts Avherein stock Avere by statute prohibited from running at large Ave have uniformly held that the unlawful act of the owner in suffering them to run at large is no defense to an action for the negligent killing of such animals. This ruling is based on the theory that, “to deprive a party of redress because of his oavu illegal conduct, the illegality must have contributed to the inj ury.” — Alabama, etc., R. R. Co. v. McAlpine & Co., 71 Ala. 515; Southern Railway Co. v. Hoge, 141 Ala. 351, 37 South. 139; Ensley Mer. Co. v. Otwell, 112 Ala. 575, 38 South. 89; Alabama, etc., R. R. Co. v. Powers, 73 Ala. 244. While the plea avers that the negligence or unlawful act complained of proximately contributed to plaintiff’s damages, yet the facts which are relied on as constituting the negligence or unlawful act are set out in the plea; and on the demurrer it became a question of law for the court as to the sufficiency of such facts to sIioav contributory negligence. The plea under consideration does not deny that defendant was negligent ; and Ave can see no difference in principle between holding that the unlawful act of failing to keep the fences up cannot be urged as constituting contributory negligence and holding that the unlawful act of suffer*288ing animals to run at large does not constitute such negligence. The act of the plaintiff in failing to maintain the fences may constitute a breach of the contract; and; although the cow escaped from the plaintiff’s land on account of the breach, it cannot be held to have been the moving proximate cause of the death of the animal, and the court did not err in sustaining the demurrer to pleas 2 and 3. — Mobile & Ohio R. R. Co. v. Christian, 146 Ala. 404, 41 South. 17, and cases there cited; St. Louis, etc:, R. R. Co. v. Douglas, 152 Ala. 197, 44 South. 677; authorities cited supra.
The insistence that; the amendment of the complaint, by averring that the cow was killed, constituted a departure, is untenable. — St. Louis, etc., R. R. Co. v. Douglas, supra.
■ ■ We have considered all of the grounds of error insisted upon, and, having found no error, the judgment of the circuit court is affirmed.
Affirmed.
Tyson, C. J., and Anderson and McClellan, JJ., concur.