
    Macon and Augusta Railroad Company, plaintiff in error, vs. Clayton Vaughn, defendant in error.
    (Atlanta,
    January Term, 1873.)
    Railroads — Injuries to Trespassing Cattle — Case at Bar. — When in a suit, against a railroad company, for killing the plaintiff’s mule by the negligent running of its trains, it appeared that the mule was found dead near the track one morning, under circumstances indicating that it had been killed by the train, which had passed that way during the previous night, and it further appeared that the place where the mule was killed was in a field, into which the plaintiff had turned it with other stock to graze, and that said field was a common inclosure of the plaintiff’s land and the railroad track — the plaintiff’s fence on two sides, running over the right of way to the track, and with cattle-pits across the track:
    Held, That under such circumstances the railroad company was not liable for killing the mule, unless there was some actual negligence of the persons managing the train, and it appearing affirmatively by the evidence, (without contradiction) that there was no negligence or want of care, and the jury having found for the plaintiff, the Judge ought to have granted a new trial.
    Railroads. Negligence. Fences. Before Judge Robinson.' Baldwin Superior Court. August Term, 1872.
    Gaston Vaughn brought complaint against the Macon and Augusta Railroad Company for $250 00 damages, alleged to have been sustained by reason of the killing of a mule by defendant.
    The defendant pleaded the general issue, and that the killing of the mule was the result of an unavoidable accident.
    The evidence made the following case: The mule was found on October 28th, 1871, near the track of defendant, in a *mutilated condition, with every appearance of having been killed by a passing train. The right of way of the •defendant was not inclosed. A fence inclosed plaintiff’s farm together with the right of way, on both sides of defendant’s track, but there was nothing to prevent stock from grazing on either side of said track at pleasure. It was plaintiff’s habit to turn his stock into this inclosure after the crops were gathered. A high fence crossed the right of way of defendant to the track, with a cattle-pit across the latter, on each side of plaintiff’s land. The ownership and value of the mule were proven as charged in the declaration. The defendant proved that every care and precaution was exercised by its employees on the night the mule was killed. This evidence was uncontradicted.
    The jury returned a verdict in favor of the plaintiff for $200 00. A motion was made by the defendant for a new trial on the grounds that the verdict was contrary to the evidence and to the law. The motion was overruled and the defendant excepted.
    T. IT. Briscoe; George F. Pierce, by Z. D. Harrison, for plaintiff in error.
    Craweord & Williamson, for the defendant.
    
      
      Negligence — Presumption.—Where stock is killed by a railroad, even in a pasture which encloses the road, the presumption of negligence is against the company, and the burden is upon the company to show the absence of negligence and that the accident was unavoidable; however, when evidence on that subject is before the jury, and the law has been correctly given in charge, and the jury has found for the company, this court will not control the discretion of the judge who presided in the court below in refusing to set aside the verdict and grant a new trial. Woolfolk v. Macon, etc., R. Co., 56 Ga. 457, citing with approval the principal case.
    
   McCay, Judge.

The evidence of the absence of any negligence in running the train at the moment of the killing of this mule is very strong, and is wholly uncontradicted. Nobody saw the mule killed; indeed, it is only by inference (very strong, it is true,) that the fact is made out of the killing by the train at all. It was night, and the driver testifies positively to the use of the greatest care. A railroad company is not liable for an unavoidable accident, even under our statute in relation to stock. If, with every reasonable precaution, proper lookout, and proper speed and proper attention, an unavoidable damage ensues, the company which has, by law, a right under such precautions to run its train, is not responsible.

*The presumption is against the road, and the proof under our law must be made that there was no negligence or want of ordinary care. It has been argued in this case that, as the road was not fenced, this was negligence; that nobody has a right to use a dangerous machine like a moving train, except within an inclosure. This is a very important question, and one that is not definitely settled in this State; at least, so far as to determine whether, if this be all the negligence shown in a particular case, a railroad companjr is liable for accidents to stock running at large.- We do not, however, think the question arises here. This killing was of stock in a field into which the mule had been deliberately turned by the owner. The field was a common one. It inclosed the road as well as the plaintiff’s land, and it was, in the nature of things, a mutual inclosure. By running his fence up to the road, and having pits dug across the track, the plaintiff consented that the defendant’s inclosure and his should be a common one, and should be used by each for its own purposes. As to the plaintiff, therefore, there was no negligence in the company for failing to have a fence. Against everybody else it had a fence, and as to him, there was a mutual consent that there should be a common inclosure. ITe turned his mule into that field with á full knowledge of the danger and of the mutual arrangement. He knew the trains would pass, and pass at night, and that the very thing which did happen might occur. He had the right to expect that the agents of the company would exercise care and prudence in running the train. That, it is proven, they did. The question of the duty of the company to build a fence against stock running at large does not, therefore, in our opinion, arise.

Judgment reversed.  