
    *Trout v. Va. & Tenn. R. R. Co.
    June Term, 1873,
    Wytheville.
    1. Right to Demurrer to Evidence — Exceptions.—The general rule is, that a party has a right to demur to the evidence; and an action for negligence is no exception to the rule. The exceptions to the general rule, are, when the case is clearly against him; or where the court doubts what facts should reasonably be inferred from the evidence demurred to.
    2. Demurrer to Evidence — Principles Governing.— The principles governing demurrers to evidence, as stated by Green, J., in Whittington v. Christian, 2 Rand. 353, and the opinion of Stanard, J., in Ware v. Stevenson, 10 Leigh, 155, approved and acted on.
    
      3. Stock — Injured on Railroad — Negligence of Engineer — Liability of Road. — In an action against a railroad company for injury to the plaintiff’s horses, if it appears that the road runs through plaintiff’s land, and the horses got upon the track of the road without any negligence or default of his, and were killed by the company’s engine, the company will be liable for the damage sustained by the plaintiff, if the damage wds done by the failure of the engineer to take the proper care to avoid doing the injury.
    This is a supersedeas to a judgment of the Circuit court of Roanoke county, rendered in an action of trespass on the case, brought by the plaintiff in error, Trout against the defendants in error, the Virginia & Tennessee Railroad company, to recover damag-es for the destruction of two mares and the injury of a horse, belonging to the plaintiff, on the railroad of the defendants, alleged to have been caused by the negligence and carelessness of the defendants, their servants and agents in driving and running their engines and coaches, on said railroad, in said county. The only plea in the case *was “not guilty,” on which issue was joined; and the case was tried by a jury. Four witnesses were examined in behalf of the plaintiff, including the plaintiff himself ; and five in behalf of the defendants. The evidence being fully heard, the defendants tendered a demurrer thereto. The plaintiff objected to joining in the' demurrer, but bthe court overruled the objection and required him to do so; which he accordingly did. Whereupon the jury found a verdict for the plaintiff and assessed his damages to the sum of |500, with interest thereon from the 9th day of November 1869 till paid, .subject to the opinion of the court upon the demurrer to the evidence. The court was of opinion that the evidence was not sufficient in law to maintain the issue joned on the part of the plaintiff; and accordingly gave judgment for the defendants. To that judgment the supersedeas aforesaid was awarded by this court.
    The substance cof the evidence set out in the demurrer, or so much of it as seems to be material, ,is as follows: The railroad runs through, and bisects the land of the plaintiff in Roanoke county, for a considerable distance; how far does not appear. At the time of the injury there was, and for many years prior thereto there had been, a fence on each side of the railroad, running through the plaintiff’s land, if not to its whole extent, at least to a large part thereof. The fence certainly extended from the bridge across Peter’s creek westwardly, for more than a half of a mile, to a cattle guard. It had been erected and kept up by the plaintiff, at his own expense, on the land of the defendants, by their consent. The fence on the north side of the railroad being fourteen feet, and that on the south side seven feet, from the road. It is proved by a witness of the plaintiff to have been a good fence at the time of the injury; a portion of it being- a plank fence, and the *balance rail. Across said road, running between these two collateral fences, the plaintiff had but one way leading from one part of his land on one side, to the other part on the other side, of the railroad-; and he had a gate on each side of the railroad where it was crossed by the said way. That way, besides being used for plantation purposes and as a means of communication between the different parts of his land lying on either side of the railroad, was also used by him and one or two of his neighbors as a mill-road, and by a few of them as a neighborhood road. The gates had latches and pegs, with which they were generally kept fastened ; though they may have been, and no doubt were occasionally, left open by persons passing through. There was no other outlet from the railroad through either of the fences except by draw bars in the fence on the north side of the road, between the crossing and the cattle-guard, and nearer to the latter than the former, unless there was also a similar outlet in the fence on the south side, about which the evidence was uncertain. The plaintiff was in the habit of pasturing his stock on his land, first on one side, and then on the other side of the railroad. At the time the damage was done, he was using the land on the north side as a pasture. In the night of the 9th of November 1869, during which the injury complained of was done, his two mares and horse named in the declaration, and three colts, got through the gate on the north side of the crossing upon the railroad and went up the road towards the cattle-guard. He could not tell how the gate happened to be open that night. He passed through and shut it that evening. They were somewhere between the crossing and the cattle-guard, but much nearer the former than the latter, when, about a quarter before ten o’clock at night, the defendants’ engine *and train of cars, being the mail train going west, reached the bridge across Peter’s creek. .The plaintiff was then at his hoitse some 500 or 600 yards from the railroad. He says, “the night the horses were killed his attention was attracted by the constant whistling of the engine. He thought the first whistling was east of the bridge. He heard brakes blown down, and then continuous whistling. The train did not stop where the blind mare was killed, but continued to whistle from there, as if it was after stock, until it got around the turn of the hill through the cut, and then commenced whistling much louder and faster, and he heard the train stop. There was continuous whistling from the time he first heard it east of the bridge, until the train got to the cattle-guard, except some momentary intervals. He does not think the speed was slackened at the point where the blind mare was killed, but he could not tell. He thinks they went through at the usual speed. The train was about an hour behind time. He left his house to go to the road 34 before 10 o’clock. He went there to see what was the matter; he heard the whistle of the engine through his land and heard the train stop; and that caused him to go. “When he went to the road, he found the blind mare dead, above the gate at the crossing. He continued then to go west, as far as the cattle-guard. When he got to the cattle-guard he found a train there, the front wheel of the engine being off the track. He found there the other mare dead, under the engine, and some one was trying to cut her in two to get her from under the engine. The brown horse was standing under the fire pan of the engine, in the cattle guard. He thought he would die; he was burned very badly, and was reeling as if just ready to fall. ’ ’ He turned out tobe of no value. The plaintiff’s two year old colt was pulled out *of the cattle guard, but was very little injured. The plaintiff in his testimony further says, that “from the place where the blind mare was killed the road was straight for 520 yards east of that place. The blind mare was killed 86 yards west of the gate at the crossing. She was killed in a cut between 3 and 4 feet deep. The cut did not extend from the place where the mare was killed quite 86 yards east. At the gate the road is level. A few yards from the gate the cut commences, and gradually deepens to 3 or 4 feet deep, where the mare was killed, and continues to deepen after that, till it is nine feet deep. Prom the cut you get on a fill, and then a curve commences, and then at a distance of 150 or 200 yards, a short cut again commences, 12 or 14 feet deep in the curve, and then gets to a fill out of the cut, which fill continues to the cattle guard, where it is near about level. Prom the last cut to the cattle guard west, he thinks, is 350 or 400 yards, but he did not measure it. It is up grade from the bridge to the curve. Prom the curve to the cattle guard, he is under the impression is about level. He does not know that one could see to the cattle guard from the west end of the cut, but thinks the cattle guard could be iseen from a point 50 yards west of the cut; there is nothing to obstruct a view from that point to the cattle guard. The morning after the horses were killed, he saw tracks of horses on the railroad, from the gate to the cattle guard. The cattle guard on the railroad is at the end of his fences west. There are no cattle guards at the gates at the crossing where the road crosses the railroad. It would be much better to have cattle guards; it is inconvenient not to have them; he never applied for any there; he had applied for some at another point, and he mentioned to the section master *that there ought to be cattle guards at the crossing, who replied that it was useless to apply, as he could not get them.”
    The foregoing statement of facts is derived, almost entirely, from the testimony of the plaintiff himself. The testimony of the other witnesses of the plaintiff need not be repeated here. It relates to the description and value of the horses killed and injured; the description of the ground over which the railroad runs through the land of the plaintiff; the distances of objects on the road from each other; the distance at which an object, such as a horse, can be seen on the railroad, in the night, by the head lights; the length of time required to stop a train running at the usual speed, or to check such a train, &c., &c.
    The testimony in behalf of the defendants consisted mainly of the evidence of Hooper, the locomotive engineer in charge of the train at the time of the killing of the horses in the declaration mentioned. He testifies, among other things, that on the evening of the 9th of November, 1869, he was running the mail passenger train. About three miles west of Big Hick, his attention was called to an animal on the track; only one at first. As soon as he discovered the animal he blew down brakes and used every exertion in his power to check the train, as it had been the usual custom to do. The engine struck the animal, he supposes, at a distance of about seventy-five yards from the place at which he first saw him. The train, at the time the animal was struck, was checking up, and attained its lowest speed twenty-five or thirty yards west of that point. After he found the animal was ofl: the track, and no damage done to the engine, he blew off brakes and proceeded west slowly, to the top of the grade. Before reaching the top of the grade, he saw two or three other horses, some one hundred *and fifty yards ahead, on the track. He blew his whistle, for the purpose of scaring them off from the point at which he saw them, till he reached the top of the grade, and saw nothing more of them until he was within thirty or forty feet of the cattle-guard. He thought when he reached the top of the grade, and saw nothing more of the horses, that they had gone out into the plaintiff’s field, through the bars near the top of the grade. When he got in thirty or forty feet of the cattle-guard, he saw a body partly in and a portion of the body out of the cattle-guard. He blew down brakes repeatedly, reversed his engine, used sand, and used every exertion to avoid running into the animal in the cattle-guard. With all the exertions he could not avoid striking the animal. The animal was pulled out of the cattle-guard by the engine, and drawn the length of the engine. The fire pan stopped immediately over the cattle-guard; the back wheels of the front truck of the engine being thrown off’the track. A large portion of the animal, nearly all of it, was under the truck of the engine, and had to be removed before the engine could be put on the track. He assisted in moving it; a portion had to be cut to pieces with axes, and a portion with knives, to get it out. After getting the animal from under the truck, we proceeded to put the engine on the track, which took about 20 minutes time. After getting the engine on, we backed over the cattle-guard, and put on cross ties to enable us to get the horse out that was burnt, and took him out, and moved him to one side, and left and went on with the train. The road is straight from the point where he saw the first animal to the place where it was killed. The grade was up, say ten or twelve feet to the mile. The up grade continues about 325 yards from where he saw the first animal. From the top of the grade down to the cattle-guard, *is a gradual down grade, averaging 40 feet to the mile. The distance is 1550 feet. A curve commences at the top of the grade, and.continues to west of the cattle-guard, where the second horse was killed.” “Starting from the top of the grade he could not, with the aid of head lights, see a horse on the track beyond the distance of forty-five yards, at no point between that place and the cattle-guard, where the horse was killed. From the time he saw the first horse he checked, and did not run more than three miles an hour. After seeing the second horse he did not run over five miles an hour; although he thought they had escaped he did not know it, and was running slowly until he discovered the horse in the cattle-guard. Thinks he can see a horse on the track by aid of the head light, in a straight line, 250 or 275 feet. In running along the curve, he could not have seen a horse on the track further than fourteen yards. As he approached the cattle-guard, he discovered a horse in it, but it turned out that there were two horses and two colts. One of the horses was killed and the other injured, and the two colts escaped uninjured. He could not put out the fire in the fire pan without scalding the horses under it. Pouring water in it to put the fire out, it would have run down on the horses and scalded the one that was already burnt and the one uninjured. When the first horse was discovered he was on time, and running at the rate of 17 or 18 miles an hour.” “Prom his experience as an engineer, running at the speed he was at the time he first discovered the horse, that is 17 or 18 miles an hour, he could not have stopped the engine under 600 feet. At the time the first animal was struck, he thinks the engine, was running at the rate of eight miles an hour; it was in the night and difficult to tell. An engineer excited in running over a horse cannot well tell how fast he is running.
    He continued to blow his whistle *from the time he first saw the animal that was first killed till he struck it. Don’t think the animal moved, from the time he first saw it until it was struck. He not only blew the whistle, but reversed the engine, before he struck the first horse that was killed. ” “At the time of killing the horses the brakes were in good condition. There is great danger of throwing the trains off the track when the engine runs over a horse, and the danger is increased when the train is running slowly.” He testifies in his cross-examination, that “he is familiar with the track of the road through the plaintiff’s land, and knew the fences were near the track, and that drawbars were near the track; thinks on both sides; knew they were on the north side. Does not recollect that he noticed that night, whether the drawbars were open or closed. Does not think that his head lights would have extended to the drawbars, which were about 30 feet from the track; knew there was no catttle-guard between the bridge and where these horses were killed. ’ ’
    The foregoing is the substance of the testimony of this witness, who was the only witness on either side who was present when the damage was done. The other witnesses of the defendants (with perhaps one, and that an unimportant exception,) were officers and agents of the defendants, who were not present on that occasion, and whose testimony seems not to be very important. They testify, chiefly, as to the state of the railroad between the bridge and the cattle-guard, the length and the depth of the cuts, the time in which a train running at full speed can be stopped by the engineer, “the distance to which light is thrown by the head lights on a straight track and on a curve, &c., &c. ’ ’ Mitchell, a division master, in the employment of defendants, whose business requires him to go frequently over that part of the road where the horses were killed, and who is well acquainted with it, describes *it particularly. He says he “is familiar with the running of engines. He thinks a head light would throw the light in a straight direction where the first horse was killed 250 feet from the top of the grade towards the cattle-guard. I have rode along frequently on the engine in the night. At places X don’t think the light would be thrown more than 65 feet on the strongest portions of the curve; at other places about 100 feet. At a point 100 yards east of the cattle-guard coming west, the head light he thinks would be thrown 100 feet on the track.” Goodwyn, who is civil engineer or a roadmaster of the defendants, “is familiar with the running of engines and trains on railroads, and with the ground where the horns were killed’, has been on the engine and noticed how far ahead light would be thrown on the track; thinks 100 yards would be the outside distance to which the light would be thrown in a straight direction. From the summit to the cattle-guard is a 3 degree curve. The light would be thrown straight ahead, but owing to the curve it could not be seen on the track more than 40 or 50 yards. ’ ’
    Hansbrough, for the appellant.
    First: As to error in requiring plaintiff to join in demurrer to evidence. Vide, Bonney on Railway Daw, 64; 1 Redfield on Railway Daw, (4th ed.,) pp. 472, 474, $ 19 and 502; 2 Redfield, p. 231; 2 American Railway Cases, 114 to 118, and 325; 2 Phillips on Evidence, 842-4.
    Counsel for appellee, arguendo, admitted that had the court below instructed the jury that the facts proved did not constitute negligence, it would have been error. It is submitted that the mode adopted in this cause to effect the same end, is equally error, because the result is the same, viz: the usurpation of £he province of the jury, (2 Am. R. Ca., 117). The law defines negligence *to be “the lack of such care as a prudent man takes of his own,” (3 Phillips on Evidence, 328). Now is not “what is such care ?” always a question of fact for the jury, to be judged of from the circumstances of the case? No decision is extant where, in an action the gravamen whereof is negligence, a party, against his protest, was required to join in a demurrer to the evidence. In the case in 17 Gratt., 115, this point was not raised and not decided.
    Second: As to sustaining the demurrer to the evidence, and thus deciding either, first, that negligence on the part of the defendant did not entitle the plaintiff to recover; or, second, that the facts proved in this case did not constitute negligence.
    1. As to Railroad Company’s liability for its negligent destruction of domestic animals on its track. Vide, Bonney on Railroad Daw, p. 39; 2 American Railway Cases, 114 to 118 and 325; 1 Redfield, p. 470 —note—(South Carolina case) ; lb., 499, § 4, (Connecticut case) ; lb., 477, (California case) ; lb., 493, (New Hampshire case) ; lb., 475, (Ohio case). See especially lb., 470-1, $ 11, for the comments of the author on the decision of Chief Justice Gibson on the (Pennsylvania) case of N. Y. & E. R. R. Co. v. Skinner, (that case being strongly relied on by the appellee’s counsel, and cited in his brief,) which decision is there expressly declared by Judge Redfield not to be the law in any country where prevails the maxim, “Sic utere tuo ut non laedas alienum. ” See, too, Redfield’s American Railway Cases, p. 255-6 — note—where it is stated that the result of a collation of all the English and American decisions is, that Railroad Companies are liable for their destruction on their railroad tracks of all domestic animals when the destruction is caused by either recklessness, want of care or ’wilful injury.
    *And lastly, see the case of the Philadelphia and Reading R. R. Co. v. Derby, reported in 14 How. U. S. R. 468, and mentioned in Bonney on Railway Daw, 214, where the Supreme court of the United States declares that Companies employing the dangerous agency of steam, should be held to the greatest care and diligence, and that in such cases any negligence is “gross” negligence.
    Now as to (2) whether or not the facts proved in this case constitute negligence.
    Negligence is the want of such care as a prudent man takes of his own affairs. Does the evidence show the defendant to have been guilty of such negligence?
    In case at bar, appellant is entitled, on the demurrer to the evidence, to the full benefit of all his own evidence, of all the appellee’s evidence which is favorable to him, and of all reasonable inferences deducible from either and conducive to the establishment of the issue on his part, and to the exclusion of all the appellee’s evidence which either literally or in effect conflicts or tends to conflict with the appellant’s evidence. (See 2 Tucker’s Corn’s, 297-8; 3 Phil. Uv., 842-4.) The liability of the defendant may result either (a) from negligence whereby plaintiff’s horses entered on the defendant’s railroad track and were destroyed, or (b)lfrom negligence of the defendant in 'failing to discover the horses after they were on the track as soon as they might with due care and diligence have been discovered, and in stopping the locomotive as soon as it might with due care and diligence have been stopped, so as to prevent the destruction of the horses.
    It is submitted that the defendant was guilty of negligence in both of these particulars :
    (a.) In neglecting to erect and maintain efficient cattle guards at the road crossing which led from one portion of the plaintiff’s land to another over the railroad *track. (See 1 Redfield, 469, U 9 and 10; lb., 493.) In many States cattle guards at road crossings are required by statute. In some, on common law principles, the want of them has been decided by the courts to render Railroad Companies liable for animals straying on the track and destroyed by reason thereof.
    In case at bar the road was not a “public highway,” but it was a common neighborhood road, used by night and by day, by all who chose, as a mill road. It was the only good crossing there was over the railroad from one portion to another of the plaintiff’s land. At every other point there was either a fill or a cut. It had evidently existed ever since, and probably before, the construction of the railroad there. The necessity for the cattle guard arose from the fact that the railroad penetrated the plaintiff’s land nearly a mile, running east and west in a straight course; and that on either side of the railroad was a fence which terminated at the western extremity of the plaintiff’s land at the cattle guard, thus creating a cul de sac, blind alley or trap; so that animals entering through the gates at the crossing, could wander along the railroad east or west from the gates; and if they wandered westward they would be necessarily caught in the tráp by the defendant’s locomotive. Had the defendant erected and maintained efficient cattle guards at this crossing, the plaintiff’s horses, which were pasturing in their owner’s adjacent field, could not have wandered along the railroad, and would not have been destroyed. It is true that the fences and gates were built by the plaintiff; but he built them with the consent and by the permission of the defendant, on the defendant’s land, fourteen years before the injury; during all of which period the defendant had tolerated said fences and gates with full knowledge of all the necessities which arose and obligations *which were created in respect to the erection and maintenance of cattle guards at ¡the crossing as a means of safety both to the passengers on the trains and to the plaintiff’s stock. The fences and gates built under such circumstances, and acquiesced in for 14 years by the defendant, were the defendant’s own act, though performed by the plaintiff, who pro hac vice, was the defendant’s agent.
    It is worthy of note that the plaintiff applied for cattle guards 1 at the crossing, but that the defendant refused to erect them; and that the plaintiff kept the fences in good order, and closed carefully the gate with latch and peg the very night of the injury.
    At all events, the statutory law of Virginia requires that for every person through whose land the l'oad of a company passes, the company shall provide proper wagon ways across the road from one part of the said land to the other, and keep such ways in good repair. (See Code, ch. 56, $22.) And it is evident that if the railroad be fenced by the Company, or (which is the same thing,) by its permission, no such wagon ways could be considered proper or as kept in good repair, unless efficient cattle guards were erected and maintained at such crossings.
    (b.) In neglecting to discover the plaintiff’s horses after they were on the road as soon as they might with due care and diligence have been discovered, and to stop the train as soon after the horses were discov-. ered as with due diligence it might have been stopped.
    The counsel then went into an examination of the evidence to establish his proposition.
    Watts and Walker, for the appellee.
    As to the demurrer to the evidence, the court is respectfully referred to the following authorities: Whittington v. Christian et al., 2 Rand., 353; Childers v. Deane et al., 4 Rand., 406; Green v. Judith, &c., 5 Rand. 1; Hansbrough’s Ex’rs v. Thom, 3 Heigh, 147; Green et al. v. Buckner’s adm’r, 6 Heigh, 82; Rohr v. Davis et al., 9 Heigh, 30; Tutt v. Slaughter’s adm’r, 5 Gratt., 364; Union Steamship Co. v. Nottinghams, 17 Gratt., 115; Boyd’s adm’r v. City Savings Bank, 15' Gratt., 501; Hardaway v. Manson, 2 Munf. 230.
    By these authorities the following propositions are established:
    1. Hither party to a suit may demur to the evidence of the other; and this either before or after he has introduced testimony on his own part; and it is the duty of the court to compel a joinder in the demurrer, unless the testimony be plainly against the demurrant, and it appears he is only seeking delay or some ■ improper advantage. [Rohr & Davis] supra.
    2. It matters not how conflicting the tés-timonj' may be it must be all set forth in the demurrer; and the right to demur is not abridged.
    3. By his demurrer the demurrant admits the truth of his adversary’s testimony; admits all fair and reasonable deductions that may be drawn from it, and abandons all of his testimony which conflicts with that of the demurree, and with such fair and reasonable deductions.
    4.So much of the demurrant’s testimony as is not in conflict with that of his adversary, or with any reasonable and fair deduction therefrom, may be and ought to be considered by the court. The case in 17 Gratt. is directly in point; and it makes no difference that there was no conflict of testimony in that case; for under the rule above laid down, all of the demurrant’s conflicting testimony is discarded, and the demurree’s testimony stands unimpeached. The authorities referred to by the appellant assert no more than the familiar principle that the law *is for the court to decide, and the fact for the jury.
    They do not at all change our well established rules upon demurrer to evidence.
    As to the second assignment of error, in sustaining the demurrer to evidence, the court is respectfully referred to “1st Red-field on the Daw of Railways,” (fourth edition) chapter 18, title, “Injuries to Domestic Animals,” page 464 to 480 inclusive. It is also especially referred to the case of Railroad 'Co. v. Skinner, reported in Red-field’s railway cases, p. 347. As to fences, it is referred to 1st Redfield on the Daw of Railways, ch. 19, p. 480 to 502 inclusive. See also appendix, vol. 1st, p. 685.
    From these authorities the following propositions are claimed as law:
    1. There is no law, statutory or common, requiring the appellees to fence in their land and roadway which is to the extent of 80 feet in width, and is their fee-simple property.
    2. There is no law requiring them, (the appellees) to make cattle guards at private farm crossings of their road. Such a requirement would be most unreasonable. (1st Redfield, p. 498 and note.)
    3. The appellant, for his own convenience and use, had erected two fences, one on each side of the appellee’s road, and on their ground; thereby making a long and narrow' lane. At the farm crossing there were two gates, which was generally kept closed by the appellant, (it being his duty to do so,) but on the occasion of the killing and wounding the horses of the appellant, one of those gates, on the north side, was left open.
    4. This was contributive negligence on the part of the appellant, and his horses were trespassers upon the property of the appellee.
    5. To make the appellee responsible in damages, in such a case, if responsible at all, wilful, wanton, and reckless ^negligence must be shown, and the burden of proof is on the appellant.
    6. No negligence of any sort is shown against the appellee; much less such wanton, wilful, and reckless negligence.
    7. In determining the question of negligence, the duties due from the Railroad Company to the passengers upon its trains, and as carriers of the U. S. mail, should be considered. It would be impossible for the Company to properly perform these duties if the running of its trains is to be constantly interrupted by vagrant, trespassing animals, and the Company is to be punished in damages when such animals are accidentally killed or damaged by its trains in the regular and lawful performance of their obligations to the public.
    8. Sections bed and e of the appellant’s assignment of error seem to be based on the testimony of appellee’s witness, and must be considered as waiving any objection to appellee’s testimony, as he cannot pick and choose such of that testimony as may suit him and discard the rest.
    9. The testimony elicited upon the cross-examination from appellee’s witnesses, must be considered as part and parcel of the testimony in chief of the appellee, incorporated with and explanatory of it. To make the testimony of the appellee’s witnesses that of the appellant, the witness must be re-called at the proper time and examined by the appellant as his witness. See 1 Greenl. Evi. p. 521, sec. 445. See also 1 Starkie Evi. p. 129, i'b 17, 18, 19, 20, 21, 22; 2 Starkie Ev. p. 1738, 3 American edition; 2 Stephens’ Nisi Prius, p. 1773.
    
      
      Right to Demurrer to Evidence. — In Clark v. R. & D. R. Co., 78 Va. 713, the court, citing the principal case, said: “The plaintiff in error assigns as error in this case that he was compelled in the circuit court to join in the demurrer. Either party, plaintiff or defendant, has a right to demur to the evidence, and the other party will be compelled to join in the demurrer unless the case be plainly against the demurrant, and his object in demurring seems tobe clearly nothing else but delay.” Seealso, astorlght of either party to demur and compel the adverse party to join in the demurrer unless the case be plainly against the demurrant, and his object be nothing but delay, Deaton v. Taylor, 90 Va. 222, 17 S. E. Rep. 944; Johnson v. Chesapeake, etc., R. Co., 91 Va. 173, 31 S. E. Rep. 338; Hyers v. Wood, 3 Call 589; Hansbrough v. Thom, 3 Leigh 147; Rohr v. Davis, 9 Leigh 30; Boyd v. Sayings Bank, 15 Gratt. 603; Green v. Buckner, 6 Leigh 82; Eubank v. Smith, 77 Va. 206.
      Same — Exceptions.—But that the court may refuse to compel the other party to join in demurrer, when the evidence is clear, see Thweat v. Finch, 1 Wash. 220; Wroe v. washington, 1 Wash. 362; Dunbar v. Beale, 5 Munf. 24; or where the parol testimony is loose, Indeterminate, and circumstantial, Hyers v. Wood, 2 Call 589; Green v. Buckner, 6, Leigh 83. In Merchants’ & M. Bank v. Evans, 9 W. Va. 383, the court, citing the principal case, said; “The court ought not to compel a j oinder in demurrer, when the case is clearly against the party demurring (Hoyle v. Young, 1 Wash. 150), or when the court doubts what facts should reasonably be inferred from the evidence.”
      Negligence constitutes no exception to the rule; it is the duty of the court to compel the other party to join in the demurrer to evidence. See Johnson v. C. & O. Ry. Co., 91 Va. 171, 21 S. E. Rep. 238.
    
    
      
      Demorrer to Evidence — Rule.—It seems well established by a long line of cases in Virginia that, on a demurrer to evidence, the rule is that the demur-rant is regarded as admitting the trnth of all -the demurree’s evidence and all reasonable inferences to be drawn therefrom, and as waiving all his own evidence in conflict with that of the demurree and all inferences from his own evidence, which do not necessarily flow therefrom. See Green v. Judith, 5 Rand. 1; Hansbrough v. Thom, 3 Leigh 158; Tutt v. Slaughter, 5 Gratt. 373; Union St. Co. v. Nottinghams, 17 Gratt. 119; Gillett v. Amer., etc., Co., 29 Gratt. 566; Long v. Ryan, 30 Gratt. 722; Richmond, etc., R. Co. v. Anderson, 31 Gratt. 820, and foot-note for collection of cases; R. & D. R. Co. v. Moore, 78 Va. 97; Jones v. O. D. C. M., 82 Va. 142; Tucker v. Sandidge, 85 Va. 562, 8 S. E. Rep. 650; Adams v. Hays, 86 Va. 154, 9 S. E. Rep. 1019; Richmond, etc., R. Co. v. Williams, 86 Va. 167, 9 S. E. Rep. 990; N. & W. R. Co. v. Thomas, 90 Va. 206, 17 S. E. Rep. 884; Richmond, etc., Co. v. West Point, 94 Va. 676, 27 S. E. Rep. 460; McDonald v. N. & W. R. Co., 95 Va. 100, 27 S. E. Rep. 821.
      In Lee v. Hill, 87 Va. 504, 12 S. E. Rep. 1052, the court said: “The evidence for the defendant shows clearly that it was made in August 1886, for one year’s service, to commence - on the first of October next ensuing; and, as this is notin conflict with the plaintiff’s evidence, it was not waived by the demurrer to evidence.”
      In Allen v. Bartlett, 20 W. Va. 52, the court citing the principal case, said: “The rule of law in cases of demurrer to evidence is well settled in this state. In such cases the general rule may be stated as follows: The demurrant must be considered as allowing full credit to all the evidence of the de-murree, and admitting all facts directly proved by, or that a jury might fairly infer, from the evidence; and as waiving all the parol evidence on his part which contradicts that offered by the demurree, or the credit of which is impeached, and all inferences from his own evidence which do not necessarily flow from it.” See also, Hefflebower v. Detrick, 27 W. Va. 21. See, on this subject, monographic note appended to Stoneman v. Com., 25 Gratt. 887, on “Bills of Exceptions.”
    
    
      
      Liability of Railroad for Injury to Stock — Negligence. —In Richmond, etc., Co. v. Noell, 86 Va. 25, 9 S. E. Rep. 473, the court citing among others the principal case, said: “It may not be out of place, however, to observe that we have not discovered any other error in the instructions as given by the court, and the omission of the word ‘gross,’ as above stated, before the word ‘negligence,’ so as to hold the railroad liable for ordinary negligence towards stock on its track without the negligence or default of the owner, was not erroneous.”
      In Wash. v. B. & O. R. Co., 17 W. Va. 212, the court said: “In Trout v. Virginia & Tennessee Railroad Co., 23 Gratt. 619, the plaintiff’s horses got out of his field on a railroad track, by some third person, without his knowledge leaving the gate open, and they were killed by the company’s engine. The engineer had ample time after seeing the horses to stop the engine before reaching the place where they were killed; but he did not slacken his speed, but merely blew his whistle to frighten them off the track. On a demurrer to evidence by the defendant, the court held that the railroad company was liable. In this state it has been decided, that it is the duty of the servants of a railroad company, so far as is consistent with their other paramount duties, to use ordinary care to avoid injury to cattle on the track. They are bound to adopt the ordinary precaution to discover danger as well as to avoid its consequences after it is known.” See also, Bullington v. Newport News, etc.. Co.. 32 W. Va. 436, 9 S. E. Rep. 876: Layne v. Ohio, etc., Co., 35 W. Va. 438, 14 S. E. Rep. 123.
      See generally, monographic note on “Demurrer to Evidence.”
    
   MONCURE, P.,

delivered the opinion of the court.

The plaintiff, in his petition for a super-sedeas, complains that the judgment is erroneous in two respects *only, viz: 1st. In requiring the plaintiff to join in the demurrer to the evidence; and, 2d, in sustaining the said demurrer. And—

First. We are of opinion that the court did not err in requiring the plaintiff to join in the demurrer to evidence. It is contended that the court did err in that respect, because the gravamen of the action, being negligence, which is a question of fact and not of law, and there being testimony tending to show negligence, the existence of the negligence is a question for the jury; and especially so, when there is any uncertainty as to the facts. That neg'ligence is a question of fact for the decision of the jury, is no good reason for its not being subject to a demurrer to evidence; for all questions of fact are for the decision of the jury. We know of no authority for making the fact of negligence an exception to' the general rule which gives to a party a right to demur to the evidence; nor do we know of any authority for making the mere uncertainty as to the facts, a ground of exception to the general rule. The decisions of this court on the subject,. which are numerous, and most of which were cited by the counsel for the defendants in error, plainly show what is the general rule, and what are the exceptions to it. In 1 Rob. Pr. old ed. pp. 349, 353, the cases which had been decided before the publication of that work are collected. In Whittington, &c., v. Christian, &c., 2 Rand. 353, Judge Green lays down, both the rule and the exceptions. After referring to the English practice, he says: “The modern practice, especially in Virginia, where it has been sanctioned by repeated decisions of this court, is to allow either party to demur, unless the case be clearly against the party offering the demurrer; or the court should doubt what facts should reasonably be inferred from the evidence demurred to; in which case the jury is *the most fit tribunal to decide; to put all the evidence on both sides into the demufrer; and then to consider the demurrer as if the demurrant had admitted all that could reasonably be inferred by a jury from the evidence given by the other party, and waived all the evidence on his part which contradicts that offered by the other party, or the credit of which is impeached; and all inferences from his own evidence which do not necessarily flow from it.” Green v. Judith, 5 Rand. 1, is a decision to the same effect; and in that case the practice as laid down by Judge Green in the case just cited, is reaffirmed; and so also is Hansbrough’s ex’ors v. Thom, 3 Leigh, 147. In that case it was held to be “the settled practice in Virginia, on demurrers to evidence, that the demurrant shall set out the whole evidence, and that the court may compel the other party to join in the demurrer, without requiring the demurrant to make a formal admission on the record of all the issues of fact which the court may think fairly deducible from the evidence demurred to;” and also, that‘‘ by-demurring to the evidence the demurrant waives all evidence 'on his part that conflicts with that of the other party, admits the credit of the evidence demurred to, admits all inferences of fact that may be fairly deduced from the evidence, but only such facts as are fairly deducible, and refers it to the court to deduce the fair inferences from the evidence.” In that case Judge Cabell said: ‘‘Nor is it any objection to a demurrer to evidence, that the evidence is circumstantial, or even complicated; as will clearly appear from the case of Stephens v. White,” 2 Wash. 203, 210. “If the defendant choose to risk a demurrer, I can perceive nothing in the case to deprive him of the right to do so.” In Green, &c., v. Buckner’s ad’r, 6 Leigh 82, it was held to be error to refuse to compel a joinder in demurrer to evidence, where *the ' evidence is 'not plainly against the demurrant; and in Rohr v. Davis, 9 Leigh 30, there is the same ruling of the court. In Ware v. Stephenson, 10 Leigh 155, there was a demurrer to evidence, which was chiefly oral, and of which there was a great deal. Stanard, J., in his opinion, stated, certain principles and considerations on the subject, which seem to be very reasonable. “In ascertaining the facts proved directly or by inference,” he said, “we must not be unmindful of the effect of a demurrer to evidence. By it the demurrant allows full credit to the evidence of the de-murree, and admits all the facts directly proved by, or that a jury might fairly infer from the evidence; and in determining the facts inferable, inferences most favorable, to the demurree will be made, in cases in which there is a grave doubt which of two or more inferences shall be deduced. In such cases it would not be sufficient that the mind of the court should incline to the inference favorable to the demurrant, to justify it in making that inference the ground of his judgment. Unless there be a decided preponderance of probability or reason against the inference that might be made in favor of the demurree, such inference ought to be made. The demurrer withdraws from the jury, the proper triers of facts, the consideration of the evidence by which they are to be ascertained; and the party whose evidence is thus withdrawn from its proper forum, is entitled to have it most benignly interpreted by the substitute. He ought to have all the benefit that might have resulted from a decision of the case by the proper forum. If the facts of the case depend upon circumstantial evidence, or inferences from facts or circumstances in proof, the verdict of a jury ascertaining these facts, would not be set aside, merely because the court might have made inferences different from those made by the jury. To ^justify the grant of a new trial, when it depends on the correctness of the decision between different inferences to be drawn from the evidence, it would not suffice that in a doubtful case, the court would have made a different inference. The preponderance of argument or probability in favor of this different inference should be manifest. When the question is, whether or no a fact ought to be taken as established by the evidence, either directly or inferentially, in favor of the demurree, I do not know a juster test than would be furnished by the enquiry, would the court set aside the verdict, had thejury on the evidence found the fact ? If’ the verdict so finding the fact would not be set aside, it ought to be considered as established by the evidence demurred to.” Cabell, J., concurred in this opinion. Tucker, P., concurred in reversing the judgment. Brooke, J., was for affirming the judgment of the court below, which was for the demurree. He says nothing in his opinion in regard to the principles laid down by Judge Stanard; but the presumption is that his views were at least as favorable to the inferences which ought to be made in favor of the demurree. We have no reason to believe that Tucker differed from Stanard, as he said nothing on the subject, and concurred in the judgment. At all events we have the concurring opinions of Stanard and Cabell, from which neither of the other two sitting judges dissented.

Such opinions, are entitled to the highest respect, and approach very near to the point of authority. We think the views thus announced are sound, and ought to govern in cases of demurrer to evidence. We will refer only to two more cases on the subject, taking them, as we have taken those already cited, in the order of time in which they were decided. In Tutt v. Slaughter’s adm’r, S Gratt. 364, there was a great deal of evidence, both oral and written. Allen, J., in delivering the opinion of 'x'the court, reaffirmed the rule as laid down in Green v. Judith. In the Union Steamship Co. v. Nottingham, 17 Gratt. 115, negligence was the gravamen of the action, and yet there was a demurrer to the evidence.

We have referred thus fully to the cases before cited, on account of their bearing, not only on the first, but also on the second assignment of error. They show how great a risk a demurrant to evidence runs; and if he is willing to run it, he ought, generally, to be permitted to do so, as he does not thereby prejudice the rights of the other party, guarded as they are by the principles which we haye seen apply to the case. So great is this risk that it seems the defendant, in Green v. Judith, lost his cause by demurring to the evidence. 1 Rob. Pr., old ed. p. 352. Taking the rule and exceptions to it as being correctly laid down by Judge Green, in the case first cited, of Whittington, &c., v. Christian, &c., 2 Rand. 353, the rule is, that a party has a right to demur to the evidence; and the exceptions to it are, that he has no such right, when the case is clearly against him, or when the court doubts what facts should reasonably be inferred from the evidence demurred to. This case falls under the general rule, and not under either of the exceptions to it.

Secondly. — We are of opinion that the Circuit court erred in sustaining the demurrer to the evidence.

It does not appear that the plaintiff’s horses got upon the defendant’s railroad by reason of any fault or neglect on his part; but the contrary rather appears. He made and kept up a good and sufficient fence, on each side of the track, from the bridge across Peter’s creek, all the way to the cattle-guard, at the west end of his land; and at his only crossing of the road in that whole space, he made and kept up a sufficient gate, with sufficient fastenings, on each side of the railroad; and it *does not appear that he did not use due diligence to keep the gates shut and fastened. He passed through and shut them during the same night in which his horses were killed, and before the train that killed them passed over that part of the road. He has a right to use his land through which the railroad runs, as well for pasturage as for tillage; and to a convenient way across the track, from his land on one side to his la nd on the other, for his plantation and other purposes. The Code, chapter 56, § 22, p. 327, declares that “for every person through whose land the road or canal of a company passes, it shall provide proper wagon ways across the road or canal from one part of the said land to the other, and keep such ways in good repair. ’ ’ There is nothing unlawful in his permitting his neighbors to use the way thus provided for him across the track, as a mill or neighborhood road. If his horses, during the night when two of them were killed and a third was disabled by the engine of the defendants, got through one of the gates and upon the railroad, by reason of the said gate having been left open by some person, without the knowledge or consent of the plaintiff, as was probably the fact, the plaintiff cannot, justly, be blamed therefor. Being without fault in this matter, he had a right to expect and require the defendants to be very careful not to injure his horses, thus found upon the road. And this gives him a great advantage in this controversy.

On the other hand there were no cattle-guards at the plaintiff’s crossing of the railroad. If there had been, the horses could only have crossed the road, and could not have gone up or down upon it. None of them would have been killed or injured. The plaintiff had no right to make these cattle-guards; at least without the consent of the defendants. They only have a right to make them, or permit them to be made. The plaintiff “mentioned *to the section master that there ought to be cattle-guards at the crossing; who replied that it would be useless to apply, as he could not get them.” He, therefore, made no such application ; the defendants knew there were no cattle-guards there, and that they would be of great advantage in preventing injury, not only to stock which might get through one of the gates and upon the railroad, but to passengers travelling over the road. It is unnecessary for us to decide, and we do not decide, in this case, whether the mere omission to make such cattle-guards, was, in itself, such negligence on the part of the defendants as made them responsible for the damage done to the plaintiff in the killing and disabling of his horses; but we think we may, at least say, that not having used that obvious precaution, the. defendants were bound to be very careful not to injure the plaintiff’s horses, which were enabled to go upon the road because there were no cattle-guards at the crossing.

This being the relative position of the parties, we now address ourselves to the question, whether, according to the settled rules of law which govern the court in its decision upon a demurrer to evidence, and to which we have already referred, there was such negligence on the part of the defendants, their servants and agents, as made them responsible to the plaintiff for the injury of which he complains in this action?

If we consider the case in reference only to the evidence in behalf of the demurree and the inferences of fact fairly deducible therefrom, and so much of the evidence in behalf of the demurrant as is not in conflict with the other evidence; which, as we have seen, is the true rule in such cases; then, we think there was, palpably, such neglect as made the defendants responsible. It appears from the evidence, so considered, that the engineer had ample time, after seeing the first horse, to *stop the engine before reaching the place where that horse was. He commenced whistling east of the bridge; no doubt because he saw the blind mare on the road, some two or three hundred yards ahead. According to his own admission, he could have stopped his engine within that distance, though he was going at the speed of 17 or 18 miles an hour; and so also, he could easily have stopped his engine after seeing the other horses, in full time to have avoided any injury of them. Instead of that, he did not slacken his speed, according to the plaintiff’s evidence, from the time he saw the first horse, indeed from the time he first blew his whistle on the east side of Peter’s bridge, until he got entirely through to the cattle-guard. Being behind time his plan seems to have been, to dash through at full speed, whistling all the way; and thus' scare the horses off the track, or else throw them off by his engine. The mare that was first killed did not move from the place where she stood when she was first seen by the engineer, until she was killed and thrown . off the track by the engine. She was blind, and in a deep cut, and could not get off the road, and knew not where to go nor what to do for safety. It does not appear that any of her limbs were broken, nor was she run over by the train. She was probably killed by the cow-catcher, and thereby thrown off the track, out of the way of the train, which continued to go on without interruption. In regard to the other horses, they were not driven off the road, nor overtaken until they were stopped by the cattle-guard, into which, it seems, they all were forced and crowded, and where one of them was killed and another disabled by the engine. The engineer well knew that there was no way offescape from certain destruction to the horses on the track between the crossing and the cattle-guard, except, by getting on the side of the track until the train passed *them, or by going out at the draw-bars, supposing that they happened to be down at the time. He could not have expected the horses to get on the side of the track until the train passed them. They were too much frightened for that, by the loud whistling of the engine, the strong head-light, and the close pursuit of the train, confined, as the track was, between two fences, and running, as it did, through deep cuts and on embankments. It was extremely improbable that the bars would be down, and extremely improper in the engineer, in so important a matter, to act upon the assumption that they were down. He says, “he thought when he reached the top of the grade and saw nothing more of the horses, that they had gone out into the plaintiff’s field, through the bars near the top of the grade;” but he “does not recollect that he noticed that night whether the draw-bars were open or closed.” He says he “does not think his head-lights would have extended to the draw-bars, which were about 30 feet from the track.” The evidence in behalf of the plaintijf shows that they were nearer than that, and could no doubt have been seen by the engineer, if he had looked that way. He ought to have looked that way; and even if he could not have seen them from the engine, he ought to have ascertained, certainly, before he passed them whether they were' up or down. No doubt they were up; and he would have ascertained the fact to be so, if he had looked that way or made an examination. But, whether up or down, it was his duty, not seeing or knowing that the horses had made their escape, to proceed with the train very slowly, from the bars to the cattle guard, a distance of 3S0 or 400 yards, and thus have avoided the possibility, as in that way he would, of injuring the animals. that, he continued to on in such speed that he drove and forced all the remaining horses *into the cattle guard, and killed one and disabled another of them.

We think that, according to the evidence, the engineer did not exercise reasonable and proper care in running the engine to avoid injury to the horses of the plaintiff; that he was guilty of neglect, and even gross neglect, in regard to the same; and that in consequence of such neglect, two of the horses were killed and another one was disabled. The question now to be considered, is, whether the damage thus sustained is damnum absque injuria or not; whether the defendants are, or are not, liable therefor to the plaintiff ?

We think the defendants are so liable. Their learned counsel, to show the contrary, relied very much on the case of Railroad Company v. Skinner, 19 Pa. State R. 298; also reported in Redfield’s American Railway Cases 347. We find no fault with the decision in that case. It was an action of trespass on the case for killing the plaintiff’s cow, which was at large, upon a narrow piece of unenclosed land, between the defendant’s railroad and the public highway, when the mail train came along, running at their usual speed of 25 or 30 miles an hour. When about 300 feet from the train, the cow sprang upon the track. The whistle was sounded, the engine reversed, and signal given to apply the brakes. The engine ran over the cow, and one or two cars were partly thrown off the track. Gibson, J., in delivering his very able opinion in the case, said: “No doubt a company is answerable for gratuitous damage: but what evidence was there of such damage in this case? Absolutely none. The testimony is consistent, and it shows that the train was going at the usual speed; that it was within 300 feet of the spot, when the cow jumped suddenly from the ditch to the .track; that the engine was instantly reversed, and the signal given to *brake; and that alacrity could do no more. The retropulsive power at the disposal of the engineer was applied in vain. Had he been able to stop the train in time to save the cow, he could not have done it without perilling the passengers. Granting what one of the witnesses testified, that the cow might have been seen at the distance of SO rods by the way side, and granting that the train might have been stopped within it, yet the engineer was not bound to stop it. He had no reason to apprehend that she would leap into the jaws of death, or that it was necessary to anticipate her.”

•Now, all this is very sound reasoning, and applies properly to the case in which it was used. But in the sequel of his opinion the judge ' expressed general views to which we cannot, altogether, assent, although in some respects they are sound. “The irresponsibility of a railway company,” he said, “for all but negligence or wanton injury, is a necessity of its creation.” (Here we have an express admission of the responsibility of such a company, fit least for negligence or wanton injury.) “A train must make the time necessary to fulfill its engagements with the post-office and the passengers; and it must be allowed to fulfill them at the sacrifice of secondary interests put in its way ; else it could not fulfill them at all. The maxim, salus populi, would be inverted, and the paramount affairs of the public would be postponed to the petty concerns of individuals. ” “It may seem cruel to make a dumb brute suffer for the fault of its owner; but it must be remembered that the lives of human beings are not to be weighed in the same scales with the lives of farmer’s or grazier’s stock; and that their preservation is not to be left to the care which a man takes of uncared for cattle. Allowing them to prowl for their food, he may not wash his hands of. the consequences of it. In a country so obnoxious to *the charge of indifference to human safety, it is a high and holy charge of the courts to hold to their duty, not only those to whom it is immediately committed, but also those by whose defaults it may be remotely endangered; and to hold them hard. We are of opinion that an owner of cattle killed or injured on a railway, has no recourse to the company or its servants; and that he is liable for damage done by them to the company or the passengers. Now, the conclusion of this opinion of the court, “that an owner of cattle killed or injured on a railway, has no recourse to the company or its servants,” could not have been intended to be used in a general sense, but only in connection with the case before the court; for it is directly in conflict with admissions contained in the same opinion, that a company is answerable “for gratuitous damages,” and “for negligence or wanton injury. ’ ’ At all events, the conclusion is not true, in a general sense; as is fully shown by the authorities referred to by the learned counsel for the plaintiff.

In Jackson v. Rutland & Burlington Railway Company, 25 Verm. R. 150, also reported in a note to Redfield’s American Railway Cases, supra, the court, after referring to some American cases, in which it had been held that the negligence of a railroad company, in driving their engines at the time, will not render them liable for killing cattle wrongfully upon the road, said : “But this last proposition is expressly repudiated in the English cases upon the subject, and is most unquestionably unsound. The railway company cannot justify either recklessness, want of common care at the time and after the cattle are discovered, or wanton injury. But, short of that, it seems they are not liable, either upon principle or the decided cases. ” In 1 Redfield, on the Raw of Railways, p. 471, the learned author, speaking of the *opinionof Gibson, J., above referred to, says: ‘ ‘The opinion contains many sensible suggestions, and is curious for the enthusiasm and zeal manifested by one already beyond the ordinary limit of human life. These views have sometimes been adopted in the jur3’ trials in other States. But they are certainly not maintained to the full extent in any country where the maxim sic utere tuo, ut alienum non laedas prevails even to the limited extent recognized in the common law in England.” See also what is said in the same volume, pp. 474, 475, 477, 493, 498, and the cases cited. In Central Ohio Railway Company v. Lawrence, 13 Ohio R. N. S. 66, referred to on page 475, (in which the author saj's, the subject of the responsibility of railway companies for injury to cattle running at large and coming upon their track is very carefully considered,) it is declared, that “the owner of cartle who does not keep them within his own enclosure, when he might do so by proper care, cannot require of a railway company to regulate the management and speed of their trains with reference to cattle coming upon their track. Such companies, like all others, have a right to regulate the management and conduct of their business, solely with reference to the security of persons and property in their charge, and the meeting of their reasonable appointments in regard to them; and may make their plans, upon the reasonable and legal presumption that other persons will perform all their legal obligations towards them; and consequently that the owners of domestic animals will keep them at home, where alone they belong, and not suffer them to stray upon the track of a railway companj', unless they are prepared to incur the legitimate hazards of such an exposure. But when a railway company finds cattle upon its track, it is bound to avoid damage to them, if practicable, by the same degree of effort that a prudent *owner of the cattle would be expected to do, properly considering the hazard both to the train and the cattle. And the proper enquiry in such a case is, whether the agents of the company exercised reasonable and proper care in running their engine, to avoid injury to the cattle of the plaintiff.” These observations appear to be very reasonable.

But the cases just cited from the Pennsylvania, Vermont, and Ohio reports, were all cases, in which the animals destroyed or injured, were, at the time, going at large by the neglect of the owner. If, in such cases, the agents of a railroad company are bound to exercise reasonable and proper care in running their engine, to avoid injury to animals on the track, a fortiori are they bound in such a case as the one now under consideration, in which the plaintiff was guilty of no neglect in regard to his horses getting on the railroad; in which, when they got upon the road, they were grazing upon his own land through which the railroad runs, as it was lawful for them to do; in which he had used every reasonable precaution to prevent them from getting on the road, by erecting and keeping up good fences and gates, and providing proper fastenings for the gates, and in which they got through one of the gates and upon the road, in the night time and without his default. Two of these horses having been killed and another disabled, in consequence of the neglect of the engineer of the defendants, in not exercising reasonable and proper care in running the engine to avoid such injury, we are clearly of opinion that the defendants are liable to the plaintiff for the damage thus sustained by him.

We do not mean to decide, because the question does not arise in this case, whether and to what extent and under what circumstances, a railroad company is liable for damage done to stock which happens to be upon the railroad *at the time by the default of the owner of such stock. It will be time enough to decide that question when it arises. We mean only to decide, that in this case, in which the horses of the plaintiff, when they were killed and disabled, happened to be upon the defendant’s railroad without any fault on the part of the owner, the defendants were bound to use reasonable and proper care in running their engine to avoid injury to the said horses; that they neglected to use such care, in consequence of which the damage was done of which the plaintiff complains; and that therefore he has a right to recover in this action.

If there be any public prejudice against railroad companies in controversies of this kind, which tends to prevent them from obtaining justice, as is sometimes said to be the case, it can hardly be necessary to say that certainly this court does not participate, in any degree, in such prejudice. Railroads are of great public utility, and indeed are now indispensable, as means of travel and of commerce. Those who construct them ought to be regarded as public benefactors; and at all events their owners are entitled to have their just and equal rights secured to them by law, and by the action of courts and juries. They are charged with the duty of carrying safely, the passengers whose lives are entrusted to their care; and as they are held by la w to a strict accountability for the faithful discharge of this duty, which is one of paramount importance, they ought not to be prevented from properly performing it, by having to use means to avoid injuring cattle which may happen to be upon the road. But subject to this paramount duty of taking care of the passengers under their charge, it is also their duty to be careful to avoid injury to stock which may happen to be upon their road; at least when there without the fault of the owner of such stock. Fortunately *for all parties concerned, the means proper to be used to avoid injury to such stock, are generally the best means that can be used for the safety of the passengers.

We are of opinion that the judgment of the Circuit court is erroneous, and ought to be reversed, and judgment rendered for the plaintiff on the demurrer to evidence.

The judgment was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that the said judgment of the said Circuit court upon the demurrer to evidence in the said record mentioned, is erroneous. Therefore it is considered that the same be reversed and annulled, and that the defendant in error do pay to the plaintiff in error his costs by him about his appeal in this behalf expended. And this court now proceeding to pronounce such judgment upon the said demurrer to evidence as the said Circuit court ought to have pronounced — it further seems to the court that the matter shown in evidence to the jury is sufficient in law to maintain the issue on the part of the plaintiff. Therefore it is considered by the court that the plaintiff recover against the defendant five hundred dollars with interest thereon to be computed after the rate of six per centum per annum, from the 9th day of November 1869, till payment, the damages by the jury in their verdict assessed, and also his costs by him about his suit in this behalf expended. And the said defendant in mercy, &c.

Judgment reversed.  