delivered tbe opinion of this court.
This is an action to recover the value of a horse, belonging to the appellee, killed by the locomotive of the appellant..
At the trial of the cause, the plaintiff, to maintain the issue on his part, proved that some time in the month of September 1855, he was the owner and proprietor of certain land adjoining and contiguous, to the Washington branch of the Baltimore *260and Ohio Rail Road, at or near the Hanover switch, where the cars of the defendant stop, when necessary, to put off or take up passengers, and that he was also the owner of a horse which, at the time referred to, was standing at or near the point indicated, on the line of the said rail road, though not immediately in the track, and which was run over by the cars of the said .defendant, and so injured as to be entirely lost to the said plaintiff.
The defendants, then, for the purpose of maintaining the issue joined on their part, proved that on the occasion of the injury to the horse of the plaintiff, a locomotive, with a train of passenger cars attached, in charge of their agents, was proceeding from Baltimore to Washington, at a rale of speed of about twenty-five miles an hour, that on approaching the switch they gave the usual and ordinary signal, with the whistle; that when within a short distance of said Hanover switch, they observed the horse of the plaintiff, distantsome hundred and fifty yards, standing near the rail road track, and on or near a road which crosses said track; that immediately upon observing the horse, the whistle was sounded to put down the brakes, and the brakes were put down instantly; that the horse immediately took to the track of the rail road, and run some distance in the road, when he was overtaken by the cars and run over; that at the time of the collision, the speed of the cars had been reduced to some ten miles the hour. It was further proved, that if the agents having charge of the cars, had, at the time of the discovery of the horse, when they were going at the rate of twenty-five miles an hour, reversed the engine, it would have been at the peril of the entire train and passengers, as, in all probability, it would have thrown the cat's from the track.
The plaintiff then proved, upon cross-examination, that the point where the horse was first seen, was a point on the rail road which, from the curve in the road, could not be seen at a greater distance than a hundred and fifty yards, and that carts and wagons are frequently passing said rail road during loading and unloading iron ore, to be transported over said rail road; and that it would have been impossible to arrest the *261cars, going at the rate at which they were travelling, when they first discovered the horse, sufficiently to avoid the collision.
Whereupon the defendant offered four prayers, which were rejected by the court below, and the verdict and judgment being in favor of the plaintiff the defendant appealed.
In all the prayers the principle is involved, that if the horse, when killed, was upon the track of the rail road, through, the •negligence of the plaintiff in not keeping the horse within his close, then, he is not entitled to recover.
It is a principle of the common law, too well settled to require authorities to be adduced in its support, that, in an ordinary case, a plaintiff is not entitled to recover for injuries to which his own fault or negligence directly contributed; but it is contended by the appellee’s counsel, that this case is freed from the operation of that principle, by force of the provisions of the acts of Asembly of 1838, ch. 244, and 1846, ch. 346.
The former of these acts was carefully considered, and its construction settled by this court, in the case of The Baltimore & Susquehanna Rail Road Co., vs. Woodruff, 4 Md. Rep., 242.
It was then decided that “the act simply changes’ ’ the rule of evidence, by releasing the plaintiff from proving negligence, if the fact of the injury is established, and casts the onus upon the defendant of showing there was no negligence” on its part. In other respects, the rights of the parties and their liabilities at the common law, remained unchanged by the act of 1838.
The act of 1846, ch. 346, while it leaves the onus of proof where the act of 1838, had placed it, on the defendant, requires that the rail road company shall, in order to exempt itself from responsibility, prove “that the damage or injury sustained, was the result of unavoidable accident.”
This court, in construing the act of 1838, said, that it restored the common law rule in relation to negligence, and imposed on the company the duty of showing the exercise of reasonable care and caution; See 4 Md. Rep., 256. Thelanguageofthe act of 1846 is somewhat different, and must be construed as imposing on the company the highest degree of care and caution; by its terms nothing can exempt the company, but to show that the damage complained of was the result of unavoidable uccident.
*262But, iu our opinion, this applies only to those cases where the party complaining has not contributed in any manner by his own negligence or violation of law to the act complained of. Or in other words, the rule of the common law to which we have adverted, remains unchanged by the acts of Assembly to which we have referred. And we concur in the views taken by the appellant in his argument, that any other construction of these acts, would subject rail road companies to the greatest imposition and expose the lives of passengers to the most constant and imminent peril. In the language of Chief Justice Gibson, in 19 Pa. State Rep., 302, “A railroad company is a purchaser, in consideration of public accommodation and convenience, of the exclusive possession of the ground paid for to the proprietors of it, and of a license to use the greatest attainable rate of speed, with which neither the person nor the property of another may interfere. The company on the one hand, and the people of the vicinage on the other, attend respectively to their particular concerns, with this restriction of their acts, that no needless damage be dohe. But the conductor of a train is not bound to attend to the uncertain movements of those loitering or roving cattle by which our railways are infested. Any other rule would put a stop to the advantages of railway travelling altogether.” To the same effect see Clark vs. Syracuse & Utica Rail Road Co., 11 Barbour, 112. Marsh vs. The New York & Erie Rail Road Co., 14 Barbour, 364, and the other cases cited by the appellant in the argument.
“By the common law, an owner of cattle is bound to keep them in an inclosure or in custody at his peril, for every entry by them on another’s possession is a trespass,” and this is the law of Maryland, and applies as well to the intrusion of cattle and horses upon the land over which a rail road company is entitled to its franchise as to the property of a private owner. And the construction which we put upon the acts of Assembly of 1838 and 1846, is, that they give a right of action, only where the cattle, horses, <fcc., of the plaintiff, are on the railway, without any fault on his part. And the question of the negligence or fault of the plaintiff, in the case before us, was a *263proper subject to be passed upon by the jury. That question was properly presented by the several prayers of .the defendant, and the circuit court erred in rejecting them.
(Decided July 20th, 1858.)Judgment reversed and procedendo awarded.