
    Railroad v. Spence.
    
      (Jackson.
    
    June 17, 1897.)
    1. Railroads. Liability of unfenced, for hilling stock defined.
    
    The liability of railroad companies having' unfeneed tracks, under Acts 1891, Ch. 101, for the killing or injury of animals by their moving trains, engines, or cars, except when the owner contributed thereto by his negligence or willfully procured it, is not limited to animals running loose, but applies to all animals, whether loose or in use or control of the owner. (Post, pp. 220, 221.)
    
    Act construed: Acts 1891, Ch. 101.
    Case cited: Railroad v. Stonecipher, 95 Tenn., 314.
    3. Same. Contributory negligence that defeats suit for MlUng animal.
    
    It constitutes contributory negligence that will defeat recovery against a railroad company, whose track is unfenced, for the killing of’ a mule by its passing train, where the owner had, at the time of the accident, - left the public road to save a short, distance and ridden upon the railroad track in a cut, where he was concealed from view. (Post. pp. 219, 221, 222.)
    
    Act construed: Acts 1891, Ch. 101'.
    FROM WEAKLEY.
    Appeal in error from Circuit Court of Weakley County. John R. Bond, J.
    Jos. E. Jones for Railroad.
    Charles M. Ewing for Spence.
   Snodgrass, C. J.

The defendant in error sued the railroad company, and obtained verdict and judgment for twenty-five dollars, as damages for killing his mule. The suit was brought before a Justice of the Peace, appealed to the Circuit Court, and again appealed to this Court, both appeals being by plaintiff in error.

The facts are agreed upon, and such statement takes the place of detailed evidence in the bill of exceptions. They are substantially'as follows: Spence owned the mule, worth twenty-five dollars, and, while riding it on a dirt road near the track of the railroad, left the dirt road to ride along the railroad track through a cut, in’ order to save a short distance in his travel home. While riding through this cut, a passenger train turned a curve forty or fifty yards from him, and caught his mule, the plaintiff himself escaping by jumping off and running up the embankment. The railroad track was not fenced, and no statutory precautions were observed by the employes on the train whe.n the accident occurred.

The defendant asked the Court to charge as follows: “If the railway at the place where the mule was killed was unfenced, and was at a point away from the public crossing and distant from the railroad yards, switches or station, and the owner of the mule, the plaintiff, was guilty of contributory negligence in the killing of the mule, by riding it on the railroad track, or so near thereto as to be struck by a passing train, then, and in that event, the plaintiff cannot recover. Such contributory negligence would be a defense and a bar to any recovery.” This request to charge was to have the first proviso of Sec. 2 of the Act of 1891, Ch. 101, p. 220, known as' the railroad fence law, applied to the facts developed. The Circuit Judge was of opinion that it did not apply, and refused to give it as the law of the case. This is the only error assigned. The section in which this proviso occurs, with two others, is as follows:

'‘ Sec. 2. Be it further enacted, That any person, company, or corporation, or lessee or agent thereof, owning or operating any railroad within the State of Tennessee, shall be liable for the value of any horse, cow, or other stock killed, and reasonable damage for any injury to any such live stock upon or near the track of any railroad in this State, whenever such killing or injury is caused by any moving train or engine or cars upon such track; Provided, That contributory negligence on the part of the plaintiff, in any action or suit to recover damages for such killing or injury, may be set up as a defense; But provided further, That the allowing of stock to run at large upon common unfenced range, or upon inclosed land owned or in possession of the owner of such stock, shall not be deemed or held to be such contributory negligence; Provided further, That in any such suit or action, proof of willful intent on the part of the plaintiff therein to procure the killing or injury of any such stock, in the manner aforesaid, shall defeat the recovery of any damages for such killing or injury.”

It is argued That the Circuit Judge put his refusal to instruct the jury, as requested, upon the ground that this Act had reference only to loose stock, or stock running at large, and though the Judge does not state his position, this, most probably, was the view he took of the law. We are unable to concur in this view. Nothing is said in the Act as to the situation or condition of stock killed or injured, whether loose or' in use or control of owners. It is only when we come to the proviso that loose stock, or stock running at large, is mentioned, and then but to excuse the owner, who has allowed it so to run, from contributory negligence which might have been implied as existing and a defense under preceding terms of the section quoted. The Act fixes liability for the killing or injury to animals named or referred to therein when the road is unfenced, without reference to any other care or precaution the' railroad -company took to prevent it, and proof of observance of statutory precautions is irrelevant. Railroad Co. v. Stonecipher, 11 Pick., 314.

In this sweeping provision as to liability there are two exceptions, first, where the owner contributed to the killing by his negligence, and, second, where there appeared a willful intent on the part of the owner to procure the killing or injury.

Whatever would show either of these acts of negligence or willful intent on the part of the owner, might be shown as a defense and to defeat a recovery, except that it should not be deemed to be contributory negligence that the animal killed, if a loose animal, or one running at large, was so loose and at large by the allowance of the owner upon inclosed land owned or in his possession, or upon common unfenced range. The language, therefore, does not make the Act mean only to provide for killing or injury to loose animals, but is specific in reference to all animals, however killed or injured by a railroad train, and merely limits the range which the evidence as to contributory negligence might take' by excluding (as to loose stock) the proof of the fact that the owner allowed them to run at large, and this by making such fact not contributory negligence, as under certain circumstances it might otherwise have been.

If the railroad companies do not fence their tracks, as the law now stands, they are liable for all loose stock filled or injured, but they are not liable for that ridden, driven, carried, or tied on the track by the owner with intent that it shall be killed or injured, or in such way that his act was so negligent as to be contributory to the killing or injury. The case under consideration shows the propriety, as well as justice, of these exceptions to the rule of absolute liability. The plaintiff left his road in order to save forty-six feet in distance, ventured into a cut where he was concealed by a curve, and took the chance of getting himself and mule killed and wrecking any train that might be forced to pass through at the same time. This was contributory negligence, and such as is clearly within the contemplation of the statutory proviso.

The judgment is reversed, and case remanded for a new trial.  