The following facts were established by testimony introduced: Plaintiff’s mare escaped from his inclosure and entered upon defendant’s right of way through a cattle guard maintained to keep stock off the right of way, but which had been so moved as to no longer accomplish that purpose. After going upon the right of way, the animal attempted to pass over one of defendant’s railway bridges and in so doing his legs were caught between the cross-ties thereon, and in plaintiff’s attempt to extricate her from that position, she was so injured as to require her being killed. Her reasonable market value was $85, for which, plus $10 attorney’s fee, he recovered judgment.
There was no proof that the animal ran on the bridge from fright produced by a passing train or that she ever came in contact with any of defendant’s locomotives or cars running over its railway. Therefore plaintiff did not show a right of recovery under provisions of Vernon’s Tex.Civ.St.1936, art. 6402. 35 Tex.Jur. § 443, p. 707; § 449, p. 713; § 450, p. 714; § 451, p. 716; § 453, p. 718 to § 454, p. 720; Missouri, K. & T. Ry. Co. v. Orr (Tex.Civ.App.) 272 S.W. 343, and other decisions there cited.
The case was tried without a jury and no findings of fact by the trial judge appear in the record, but every reasonable presumption of findings of fact in support of the judgment must be indulged if there be competent evidence sufficient to support it.
Two grounds of negligence were relied on by plaintiff to support a recovery for the value of his mare, viz., negligence in maintaining the defective and insufficient cattle guard through which the animal entered on the right of way; and negligence in maintaining its railway bridge with openings between the cross-ties of such width as to cause the animal’s legs to become entangled therein.
A charge of negligence in the latter respect could not be sustained, for the reason that the bridge was not constructed for travel over it by animals, but for the sole purpose of supporting trains and locomotives ; and the defendant company was not charged with notice of the probability it would be used by trespassing live stock. Indeed, the same reason for the statutory requirement to maintain .cattle guards at certain points to keep stock from passing out of or into inclosures would apply with equal force to openings in railway bridges. If no such openings are left in the floor of railway bridges, then the railway company might be confronted with a charge of negligence for that condition.
It is the settled doctrine of the decisions in this state that a railway company is not required to fence its track, although by article 6402 it is held liable for stock injured .through collision with its locomotives *709or cars, if the track has not been fenced or if the fence has become so out of repair as to admit stock. As announced in many of the decisions, independently of the provisions of article 6402, a railway company may be held liable for injury to stock resulting from its negligence under rules of the common law; but that the mere absence of a fence inclosing the right of way is not sufficient of itself to support such a charge.
The failure to keep in proper condition the cattle guard through which the animal entered its right of way is the only evidence pointed out by plaintiff to support a finding of the court on the issue of negligence first noted. Even if the rule were otherwise, plaintiff would have the burden of further showing by allegation and proof that defendant should reasonably have foreseen the possible presence of such an animal in an inclosure from which it might escape and wander on to the right of way through the defective cattle guard. No such allegation or proof appears in the record before us. Moreover, the purport of plaintiff's testimony was that the mare escaped from his premises through a gate that was left open or else broke down by another animal, all without his knowledge and unexpectedly to him. If he could not have foreseen that she would get out and wander away, how could it be said that the railway company should have anticipated such action of the animal ?
For the reasons indicated, the judgment of the trial court is reversed and judgment is here rendered for appellant.
All costs of suit in the trial court and by reason of this appeal are taxed against ap-pellee.