The opinion of the court was delivered by
Horton, C. J.:In this case, it appears from the agreed statement of facts that the plaintiff’s cattle escaped from his pasture and wandered from the public highway upon the uninclosed land of one Alva Clark, through which the defendant’s railway runs; the railway was not fenced, and the cattle entered upon it and were run over by a train; their escape had not been discovered, and there was no one in pursuit; the herd law of 1872 was in force in the county. It is claimed on the part of the railway company, defendant below, that the plaintiff was bound at all events to restrain his cattle; that the killing of the cattle was the result of concurring wrongs, and as the law can neither apportion the damages nor attribute the result to defendant’s default, disregarding that of plaintiff, no recovery can be had. Railway Co. v. Lea, 20 Kas. 353, and Sherman and Redfield on Negligence, § 39, are cited. In Railway Co. v. Lea, the owner permitted his cow to run at large in violation of the herd law, and while so running at large the animal strayed upon the track of the railroad and was killed. In this case, the owner of the animals kept them confined on his farm in a pasture inclosed with a good and lawful fence, and, without his fault, they escaped in the night-time from the pasture into a public highway, and wandered thence into uninclosed lands upon the defendant’s railway, which railway was wholly unfenced. Therefore the case of Railway Co. v. Lea is not controlling.
On the other hand, the agreed statement of facts brings the case within the following decisions of this court: Railway Co. v. Wiggins, 24 Kas. 588; Railway Co. v. Bradshaw, 33 id. 533; Railway Co. v. Roads, 33 id. 640.
*61In Railway Co. v. Wiggins, it was held that even in herd-law counties the rigorous doctrine of the common law does not prevail, and that an animal cannot be said “ to be allowed to run at large” where the owner has taken reasonable precautions to confine the same. In Railway Co. v. Bradshaw, it was held that under the railway stock law of 1874, a railway company is required to inclose its road with a good and lawful fence as against all animals against which such a fence would be a protection; and it was further held in the case, that where an unfenced railway passed through a farm and a hog belonging to the owner of the farm escaped, without fault on the part of the owner, and strayed upon the railway within the limits of the farm and was there killed by the railway company in the operation of its road, that the railroad company was liable. In Railway Go. v. Roads, it was said that where hogs escape, by mere accident, from a pen in which they are inclosed, no negligence can be properly attributed to the owner therefor; and it was further said that the mere fact that the animals were trespassing upon the land from which they went upon the unfenced railroad track where they were killed, will not, where the plaintiff is without fault, defeat a recovery.
Upon these decisions, the judgment of the district court must be affirmed.
All the Justices concurring.