This suit was brought by Raiford, plaintiff in error, against the Mississippi Central Railroad Company, to recover damages for the killing of two mares, the property of Raiford, by the engine and train of the company. The facts are: The animals were killed near Goodman, at night; they were not seen by the engineer until the train was within thirty yards of them ; they were galloping along on the track, the alarm whistle was blown, and the speed of the train, which had been moving about 15 miles an hour, schedule time, was reduced to about 7miles per hour; the train could not be stopped in .time to save the animals; the night was foggy; the locomotive had a good head light, the best on the road, etc. There were other facts not very material, however, proved. There was a demurrer by the railroad company to the evidence and judgment in favor of the demurrer.
The case is here by writ of error. The error assigned is: The court below erred in not rendering judgment for the plaintiff in error on the demurrer. The general rule is that on demurrer to the evidence, the court stands in the stead of the jury, and may indulge all the inferences from the facts, which a jury might fairly have drawn. 1 John. Rep., 29; 4 Cranch, 219. The question in the revising court, is very much like that presented when considering the effect of a general verdict of a jury. Chewning v. Gatewood, 5 How., 555. Sec. 8 of Rev. Code, p. 298, 299, provides rules for the government of railroad companies, running and management *239of their trains, so as to insure (as far as practicable) safety to persons and property. Article 53: “ Every railroad company shall be liable for all damages which may be sustained by any person in consequence of the neglect or mismanagement of any of their agents, engineers, or clerks, or for the mismanagement of their engines.”
Questions of the character involved in this record are of frequent occurrence in this and the other states. The railroad companies have an exclusive right to the occupancy and use of their road for the purpose of the prosecution of their business. They stand in this respect on the same footing of any other proprietor. At the same time, they must so use their property and franchise as not, “ because of neglect or mismanagement,” to injure or destroy the property of another. In the Vicksburg and Jackson Railroad Company v. Patton, 31 Miss. Rep., 190, it was held that the custom is well settled by long usage and universal acceptation, as well by statutory recognition, “ that the owner is entitled to permit his cattle to go at large in the neighborhood range, and is not liable for damage done by them to the premises of a neighbor, which are not inclosed by a lawful feneeP Raiford, therefore, might well suffer these horses to run at large in the uninclosed roads and fields. But in so doing he took the risk of their loss or injury by unavoidable accident. If they intrude on the road of the company, which is left uninclosed, it has no remedy against Raiford and Ra'ford, by letting his horses and stock range in proximity to the railroad, incurred the hazard of their wandering on the road, and the extraordinary risk to which, thereby, they might be exposed. The fact that the animals were on the road did not justify the agents and servants of the company in, regarding them there unlawfully and in violation of the rights of the company, and in any measure release the company’s servants from the observance of proper care and precaution for their safety. The company had the right to run their trains at a reasonable speed, day and night. We are not prepared to say that the schedule time of running ought, *240in any degree, to be controlled by tlie liability of stock to wander into the road, or that the company, in determining the rate of speed, should have had any special reference to this liability. The speed of the trains should rather be controlled by the custom of railroads and the exigencies of travel and freights.
In the case cited, the court say the company can justify the destruction of animals on their track, “ only when in the necessary prosecution of their business, and when the act is unavoidable after the use of such care, skill and prudence as a discreet man would employ to prevent it.” In the Mississippi Central Railroad v. Miller, 40 Miss. Rep., 48, the distinction is drawn between the responsibility of a railroad company toward persons and property transported over its road as a common carrier. With respect to these the company is committed to the “ utmost care,” and a failure to use it is negligence for which it is liable. But toward other persons and their property, with respect to whom the railroad company have not assumed the responsibility of common carriers, they are only bound, in running their trains, to the use of sudh reasonable care and prudence as a prudent man would, in similar circumstances, use to prevent injury or destruction.” N. O. J. & G. N. R. R. Co. v. Enochs, Opinion Book 1.
In Williams v. Michigan Cen. R., 2 Mich. R., 259, the court say: “ If the animals are wrongfully on the road, the company cannot be held liable for any accidental injury which may have occurred, unless the lawful right of running the train was exercised with a proper degree of care and precaution in an unreasonable and unlawful manner. At common law the proprietors of land are not bound to inclose as against each other, but each is bound to keep 'his cattle on his own'premises. 2 Black. Comm., 209-211.
In Brainard v. Bush, 1 Cow., Rep. 78; Bush made maple sugar, in an uninclosed wood land, and left some syrup in an open shed, to which Brainard’s cow, in the night time, came and drank, which caused her. death. Savage, Chief Justice : *241“ Although Bush was guilty of negligence in leaving his syrup where cattle running at large might have access to it, yet the plaintiff having no right to permit his cattle to go there, has no cause of action.”
In those states where the old common law prevails, it is the duty of the owner to keep his cattle on his own premises, and he becomes a wrong doer, if any of them escape or stray off on the lands of another. According to the English rule, if the animal, when the injury occurred, may have been wrongfully on the railroad track, if the damage resulted from gross negligence or willful misconduct on the part of the company’s agents, in running the train — such being the proximate cause of the injury — the company would be liable. Lafayette & Ind. R. R. Co., Shrine, 6 Ind. Rep. 145; Inman v. Galt, 7 B. Monroe, 538; 16 Conn. Rep., 420.
A party seeking damages under the 43d art., of Code (above cited), must show some “ mismanagement ” or “ neglect ” on the part of some of the servants of the company,. and that the injury resulted therefrom. The circuit judge, who tried the cause, had the benefit of hearing the witnesses, and therefore, had better advantages than this court has, to .consider and estimate the value and weight of .the testimony. He could deduce such inferences, and come to the same conclusion that the jury might, if the case had been submitted to them. His decision was in accordance with the principles herein stated. Let the judgment be affirmed.