
    
      F. W. Leseman vs. The South Carolina Rail Road Company.
    
    The yard of defendants, a Rail Road Company, is full of timber, pit-falls, &c., and is a dangerous place for cattle: it is enclosed by a high fence, with proper gates, which during the day are opened and shut for the passage of cars, and at night are closed by a watchman. One afternoon a cow of plaintiff strayed into the yard: she was not discovered by the watchman, who searched the yard before closing the gates. At night he turned dogs loose in tire yard. They chased the cow, she fell, broke her thigh, and died. Held that the Company were not liable for the cow.
    
      Before Frost, J., at Charleston, October Term, 1850.
    The report of his Honor, the presiding Judge, is as follows: “Samuel Kant, watchman in the upper yard of the Company, on Charleston Neck, stated that one afternoon the plaintiff’s cow strayed into the yard. At 5l¿ o’clock he looked round the yard, and did not see the cow. At 8J o’clock he let loose the dogs; they started a cow; he was not near; he opened the gate; the cow missed the gate, ran by him, and fell. He did not know the cow was injured. The dogs left the cow. In the morning he discovered the thigh of the cow was broken. The plaintiff was informed of the accident. The cow died. It was worth 40 or $50. When the cow fell, Kant did not know it was hurt, nor did he know how it happened that .its thigh was broken. The dogs were put up after the cow fell. The yard is enclosed by a high fence. There is no watchman in the day-time; a man opens and shuts the gate for the cars. It was Kant’s duty to close the gates at night, and see that there was nothing in the yard. The yard is a dangerous place for cows; it is filled with timber, and has many pit-falls, &c. Kant had seen the cow in the yard several times before, and had turned it out.
    
      “On this case, a decree was rendered for the defendant. The evidence satisfied me that the cow broke her thigh when she was run by the dogs and fell. In my opinion, no negligence was imputable to the Company or the watchman on account of the accident. In addition to these reasons for the decree, the watchman is employed by the Company to'protect their premises, and not to take care of estray cows. It was lawful to let loose the dogs at night, and no blame can be attached to the watchman that they chaséd the cow, which he did not know was in the yard. It was for the plaintiff to take care that his cow should not stray where it might injure itself. The Company, it seemed, was no more liable for the death of the cow, than if it had fallen into a pit.”.
    The plaintiff appealed, on (he. grounds— . .
    1. That it being proved that' the lot of the defendants was a dangerous place for cattle, it was their 'duty to guard the gates while open; and in not doing so, they are responsible for injury received by plaintiff’s' cow in said lot.
    2. That the cow of plaintiff having been found injured on the lot of defendant, the burden of proof as to how she received her injury was with the latter; and failing to account for the injury, the defendant was responsible.
    3. That the. negligence of the watchman, the agent of defendant, was clearly proved by himself — he having shut the gates for the night, and left the cow of the plaintiff in the lot of defendant, in which lot she was that night injured. '•
    
      Pressley, W. D. Porter, for the motion.
    
      Hayne, contra.
   Curia, per

Whitner, J.

This Court will'add but little to what already appears in the brief in vindication of the judgment.

We concur in the view taken by the Circuit Judge, and would be content with simply expressing that concurrence, except that the case has been urged, on the part of the plaintiff, with much earnestness, and many cases cited as authority leading, as. it is insisted, to a different conclusion.

It is fully conceded that there is an obligation on this Company to surround this area, in the vicinity of the highway, with proper enclosures, containing, as it is said, dangerous pit-falls, whereby the safety of both man and beast might otherwise be put to hazard; and that the rights conferred even by authority of the Legislature to erect such works, as in the present instance, in no way lessens the especial precaution to be observed against mischief, or responsibility for damages, in case of default, whether such default arises from neglect so to fence the yard or keep the gates shut. But this obligation must be construed reasonably, and must not be enforced in such way as to amount to a denial of the right, or unnecessarily encumber its enjoyment. Ingress and egress, for the purposes contemplated, must be permitted, and the bare possibility of harm that may happen to an errant animal should not enlarge the obligation. The facts disclosed, in any view which this Court can take of them, do not fix on this Company such want of proper precaution in these particulars. So, too, although the Company may be clearly responsible for the act of their servants, done under their authority, as well as for injuries done on their premises by those employed thereon for their benefit, yet, by no just application of these principles, are we led to a different conclusion from that attained by the presiding Judge. It did not appear that the cow had been observed in the yard, and though the gates had been opened during a portion of that day, it would seem for a legitimate purpose and only for a proper time, yet, as was the custom, the yard was searched before the gates were closed. The failure to detect an unknown wanderer does not evidence such negligence, nor does the loosing the dogs manifest such wantonness, under the circumstances, on the part of the watchman, as would subject his employers to a recovery.

The extreme cases of baiting traps, whereby dogs have been injured, or of surrounding a stack of hay with an indifferent fence only, whereby a luckless horse has sustained damage in his attempt to pilfer, much less the cases of owners of vicious and mischievous animals, made liable for any injury committed by them, where there was knowledge of such mischievous propensities,! do not aid us in the case before the Court. The sin of temptation, apart from the question of negligence, as in the former cases, or of mere wantonness, as in the latter, are in no way imputable to this Company.

On general principles we think the decree was proper, and the appeal on the part of the defendant is therefore dismissed.

O’Neall, Evans, Frost and Withers, JJ., concurred.

Motion dismissed. 
      
       9 East, 277.
     
      
       2 Steph. N. P. 1014. †Bul. N. P. 77; 2 Stra. 1264.
     