
    Joseph Murray vs. The South Carolina Railroad Company.
    By the law of this State, cattle should be fenced out, and not fenced in. The entry, therefore, of cattle or a horse, upon an uninclosed Railroad track, is no trespass.
    An owner who permits his horse to roam at large over uninclosed land, is not guilty of such negligence as will embarrass his recovery, should the horse be killed by the negligence of another.
    The rule in Danner's case, that mere proof that cattle were killed upon a Railroad track by the train of the Company, is sufficient to throw the onus of showing that there was no negligence on the Company, held applicable to a case of the killing of.a horse at night.
    Where the Company are charged with the negligent killing of a horse upon the track of the road, the absence at the trial of the agents, or servants, of the Company, who were on the train when the horse was killed, raises a strong presumption against the Company.
    It is the duty of a Railroad Company not to obstruct public roads, where they cross the Railroad track, either by stopping a train across the public road, or otherwise; and the Company must take the consequences of all such obstructions. k
    It is the duty of the Company to slacken speed at a turn out, and to give warning when approaching a crossing; and it must not appear that such duties were disregarded when they attempt to show want of negligence.
    IN THE CITY COURT OF CHARLESTON, OCTOBER TERM, 1856.
    Tbe report of bis Honor, tbe Becorder, is' as follows:
    11 Tbis was an action on tbe case for tbe value of a borse, killed by tbe cars of tbe defendants. Tbe testimony was all by commission.
    
      “ Tbe plaintiff lent bis borse to E. C. Magill, wbo rode bim to meeting on tbe opposite side of tbe Eailroad track and bitcbed bim. Tbe borse broke loose, and following tbe road came to tbe Ridgeville Station, wbexe tbe road crosses tbe Railroad track. Tbe crossing was obstructed by a train of cars on tbe turn-out. Tbe borse wandered up and down tbe track, until tbe nigbt cars came up, about 11 o’clock, P. M-. and killed bim. There was some evidence, from tbe tracks of tbe borse, tbat he bad been chased for some distance by the cars.
    “ Tbe testimony of Magil was, 1 that he bad bitched tbe borse, tbat be bad broken loose, and that be was unable to retake him.’
    “Tbe defendants moved for a non-suit, on tbe ground stated in the grounds of appeal.
    “ Tbe motion was refused.
    “ Tbe defendants introduced no evidence, and tbe case was submitted to tbe jury under tbe following instructions: — Tbat under tbe authority of Danner's case, 4 Rich. 329, it was only necessary for tbe plaintiff to prove tbe fact of tbe killing by tbe Railroad Company, and tbat thereupon a presumption of negligence arose which tbe defendants must rebut. Tbat as tbe injury was committed by them, their agents and servants were tbe only parties wbo could furnish tbe requisite information, and tbat their absence raised a strong presumption against tbe defendants.
    “ Tbe Counsel for tbe defendants bad taken tbe position in bis argument tbat tbe Railroad track was tbe property of tbe Railroad Company, and any intrusion upon it was a trespass, or at least such an intrusion as made tbe owner of tbe cattle intruding, liable for all accidents resulting from tbe intrusion. I instructed tbe jury tbat by tbe law, cattle bad tbe right to wander upon tbe unenclosed portions of tbe Railroad track, and tbat if injury occurred to them from tbe Railroad Company, or their agents, they must show tbat tbe injury occurred without negligence on their part.”
    Tbe defendants appealed, and now in this Court renewed their motion for a non-snit, on the ground, that the plaintiff did not prove dne care on Ms part, and negligence on the part of the defendants.
    And also moved for a new trial on the following grounds:
    1. Because his Honor charged the jury that the defendants were liable unless .they discharged themselves, and that a strong presumption arose against them, from the absence of their servants or agents.
    2. That his Honor charged the jury that cattle have the right by law to wander upon the Bailroad track, and that the Bailroad Company are liable for injuries occurring to such cattle.
    3. Because his Honor refused to charge the jury (asi requested) that although it might not be a trespass for the cattle to wander, still their so wandering was at the risk of the owner, who must bear the loss arising from any accidental injury to such cattle.
    4. That there was no proof of negligence on the part of defendants, and that plaintiff did not prove due care on his part to avoid or prevent the injury.
    
      Conner, for appellants,
    submitted.
    1. That by reason of the difference of facts, the rule in Dcvmer’s case is inapplicable to the present case.
    2. That in fact, there was no negligence on the part of the defendants, and in law, no ground for the rule that the killing is prima facie evidence of negligence, casting on the defendant the onus of rebutting it. 1 Grreen. Ev. § 33; Zemp. vs. B. B. Go. 9 Bich. 89.
    
      3. That in actions on the case the plaintiff must be without fault.
    
      Butterfield vs. Forrester, 11 East, 60; Illedge vs. Goodwin, 5 O. and P., 24 E. C. L. B. 520; FlucJcwell vs. Wilson, 5 0. and P., 24 E. C. L. E. 612; Bush vs. Brainard, 1 Cowen, 78; Brow-nell vs. Flagler, 5 Hill, N. Y. 282; B. B. Go. vs. Sineath, 8 Eich. 191; 5 Denio, 255 \ N.Y.& Erie B. B. Go. vs. Skinner, Law Eegister.
    4. That the plaintiff’s horse was trespassing.
    1 Amer. Bailway cases, 212 (note); Blythe vs. Topham, Cro. Jac. 158 ; 1 Cowen Beports, 91 (note); Leseman vs. B. B. Go., 4 Eich. 413; Banner vs. B. B. Go., 4 Eich. 329; Co. Lift. 56, a, § 68.
    
      Pressley, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

Beyond the statements of the report, it appears to this Court that the meeting-house where the horse was hitched, was four or five miles west of the railroad: that the road which the horse followed was a public road: that there is on the railroad a deep cut at the crossing of the public road, and for a considerable distance above and below it, the crossing being made practicable by cutting down, at that point, the banks on either side: that the train of cars, which obstructed the crossing, was a freight train, that had early in the evening stopped for the night: and that the passenger train, which killed the horse, seemed, so far as could be judged from the foot-prints of the horse, to have passed the turn-out without slacking speed, and to have overtaken the horse running briskly.

The fence law, which has prevailed in this State, from a time soon after the distinction between forest and cultivated lands was made by tbe settlements of Europeans, bas always required that cattle should be fenced out, and not fenced in. (See Acts, 1694, 2 Stat. 81; 1827, 6 Stat. 331.) It is not then unlawful for the owner of horses or cows to permit them to go at large, so as to roam upon all lands, of his own or of others, that are not guarded by a fence such as the law prescribes : and the entry of a horse or cow upon the unenclosed track of the railroad is no trespass. The owner of cattle, who permits them to roam, runs the risk of all damage which they may accidently receive, and so may sometimes be said to be negligent of his own interest: but he is not guilty of legal negligence such as embarrass his recovery from a person who, through negligence, hurts the cattle.

This Court perceives no negligence then on the part of the plaintiff, to be ascribed to the conduct of his bailee, who, after attempting in vain to catch the horse, that had been fastened in the ordinary way and had escaped, refrained from pursuing him four miles, and allowed him to go at large upon the public road that led to his stable.

The Court acquiesces too in the reference which the Eecorder made to Danner's case, for the presumption which arises from the killing of the horse by a train of cars, established and unexplained, and for the unfavorable inference raised by the absence of all the defendant’s agents who were at the killing. Negligence, rather than accident, is shown by proof of damage done by a train, when nothing more appears. The nature of the machinery used, and of the railway on which it is used, and the risk which from any obstruction encountered the engineer and all the lives and property under his care necessarily incur, are not of themselves sufficient to rebut the presumption of negligence; but these matters are worthy of much attention, and when strengthened by other sufficient circumstances would avail to rebut. Such other circumstances must usually come from the agents of the Eailroad Company, who alone are usually cognizant of them, and in the absence of such agents cannot be established by conjecture. In this case, it appeared from the plaintiff’s testimony that the killing of tbe horse was done at night. That of itself is insufficient to show that the killing was accidental. If it had been proved that the night was foggy: that the train was in all respects properly equipped and managed: that the horse suddenly jumped upon the track, or stood still, or was hidden from view by a curve in the road: or in general, that from the time the horse could first have been seen, until he was killed, all proper means and appliances were used to avoid him, and used in vain, a case of accident would have been made out.

But beyond the ordinary presumption unrebut'ted, it appears in this case that the public road along which the horse attempted to cross the railroad, was obstructed by the company’s cars, and that the horse wandered up and down in the cut whose banks he could not climb. The obstruction of the public road was a wrong done by the company, which, under such circumstances would have justly entitled the plaintiff to recovery, even if the killing by the passenger train had been shown to be, so far as that train was concerned, wholly accidental and blameless. The thirty-third section of this Company’s charter (8 Stat. 415,) gives to the Company the right to run its track, along or across a public road, only on condition that the road shall not be thereby obstructed: therefore the banks of the cut were sloped at the crossing. The obstruction of the crossing was a nuisance: either the turn-out should have been large enough for the trains which stopped there, to have stood above or below the crossing, or else the cars of a train at rest should have been detached so as to give a free passage. This duty of leaving crossings unobstructed, which both common law and statute require, must be observed by the company, unless it is willing to take all consequences that may ensue from its violation. There is a further duty of slacking speed in passing a turn-out, and still a further one of giving sufficient warning,when a crossing is approached, (both of which are recognised bj the custom of railroads, and we believe by the regulations of this company, and both of which are brought to mind in this case,) which must not appear to have been disregarded in any instance, where the company undertakes to show that all proper means were used to avoid damage complained of.

The motion is dismissed.

O’Neall, Withers and Whitner, JJ., concurred.

Motion dismissed.  