When the act charged as a trespass was committed, whether that act was accidental or otherwise, the defendant, an engineer having charge of a locomotive, was engaged in the regular performance of his duty. This duty was a lawful one, and the company in running the engine on its railroad was clearly within the powers granted by its charter. The road had been built, and engines and cars placed thereon, for the purpose of transporting passengers and merchandise by means of steam power, in exact conformity with *188the object of the act of incorporation. Turnpike Co. v. Camden and Amboy Railroad Co., 2 Harr. 314.
The duty, then, in which the defendant was engaged being lawful, neither he nor the company could be liable for any accidental injury which might occur in consequence of the passage of the train, unless there was a want of diligence and precaution, or the right was exercised in an unlawful and unreasonable manner. Undoubtedly a company, intrusted with an agent of such dangerous character for its private and particular advantage, must use all reasonable diligence to prevent damage to the property of third persons. If negligent, of course the company would be liable for all consequent injury to any one who had not deprived himself of his remedy by some default or misconduct on his own part. Burroughs v. Housatonic Railroad Co., 15 Conn. Rep. 124; Garrison v. Railroad Co., 2 Iredell (N. C.) 324; Piggott v. Eastern Counties Railway Co., 3 C. B. 229.
But the case shows that the cow was unlawfully at large, straying without control in a public thoroughfare, when killed by the locomotive. At the common law it is well settled, that a man is not obliged to fence against any cattle, unless indeed, it be against cattle rightfully in an adjoining close; but the owner is obliged to keep them in his own close at his peril. The statutes of this state which prescribe the regulations as to fences, extend only to owners of adjoining closes, and owners of land are not compelled to protect themselves against trespasses committed by cattle suffered to wander at large and pasture upon the public roads. The rule, it seems to me, must apply to a lawfully authorized railroad as well as to other property. In this case it does not appear that the cow had escaped from the owner without any fault on his part, or that he had made fresh pursuit. Any injury that might occur in case of such accidental escape, or that might occur to cattle being driven along the public highway, in consequence of the unfenced railroad, might admit of a different consideration. But in this instance the cow when struck was trespassing, so far as appears without excuse, upon the property of the company. Coxe v. Robbins, 4 Halst. 384; Chambers v. Mat*189thews, 3 Harr. 368; Rust v. Low, 6 Mass. 90; Stackpole v. Healy, 16 Ib. 33; Stafford v. Ingersoll, 3 Hill 38.
Under such a stale of facts nothing hut wilfulness on the part of the engineer, or such negligence as would amount to wilfulness, would make him liable for the loss of the cow so exposed by the fault of the owner. It was properly admitted by one of the counsel on the argument, that had the injury been wilful, the defendant would have been liable, and undoubtedly such is the rule. See Brownel v. Flagley, 5 Hill 282; Lord Denman, in Lynch v. Nurdin, 1 Q. B. 29; Davies v. Mann, 10 M. & W. 546; Butterfield v. Forrester, 11 East 60. But in case of mere negligence, not so gross as to evince recklessness or design, an action cannot bo maintained by one, himself clearly ill the wrong. It has been so held in eases arising upon the collision of carriages and vessels, as well as in other cases which present a strong analogy. There must be wrong as well as damage, and there is no legal injury where the loss is the result of the common fault of both parties. Rathbun v. Payne, 19 Wend. 399; Barnes v. Cole, 22 Ib. 188; Butterfield v. Forrester, supra; Sarch v. Blackburn, 4 C. & P. 297 ; Vanderplank v. Miller, 1 Mood, and Malk. 169. ”
It does not appear that there was any culpable negligence on the part of the engineer in the present instance. It is said in the evidence, as stated, that he was a careful man. According to the testimony of a passenger in the train, the bell was twice tapped, and the engine twice reversed, though, the whole occurrence being sudden, the collision almost immediately succeeded the notice thus given. We cannot presume that a careful man, charged, as was this defendant, with the safety of the numerous passengers in the train, would have periled their lives by wilfully running against a cow previously seen. The only circumstance which can give the least color to such a charge, is that the line of road, at the point where the accident occurred, could have been seen by the engineer from the distance of one-fourth of a mile, perhaps farther. But the train was in rapid motion. The exigencies of the business to which railroads at this day are applied require as much speed as is *190consistent with safety. The cow, alarmed by the approach of the engine, may, at the moment, have darted on the road, so that the view of the danger by the engineer and the collision may have been almost simultaneous. We do not think, therefore, that this circumstance will authorize ns to infer such gross negligence as will make the defendant liable. We are of opinion that the judgment below must be reversed.
Cited in Moore v. Cent. R. R. Co., 4 Zab. 273; Price v. N. J. R. R. Co., 2 Vr. 240; N. J. Ex. Co. v. Nichols, 4 Vr. 440.