The statutory requirements under which railroad companies are permitted to exist and do business are of a quasi-police character, in so far as they tend to protect property of persons whose contiguity to the roadway render them especially liable to injury, and not only the owner of live-stock, but the traveling public is interested in the strict enforcement of the laws requiring railroad companies to fence.1

§ 85. Burden of proof as to negligence.-As to what is negligence on the part of the owner of live stock sufficient to prevent his recovery from the railroad company of damages for their injury by passing trains, and what may be deemed negligence on the part of the railroad company or its employees of such a character as to make the corporation legally responsible for damage by collision with domestic animals, have been subjects of considerable discussion in the Courts.

Apart from legislation by which statutory provision has been made, the fact of domestic animals being killed or injured by the companies' engines or trains is not prima facie evidence of negligence such as will charge the railroad company. 2 A dis

1 Shearman & Redfield on Negligence, 494; Chicago Etc. R. R. Co. v. Triplett, 38 Ill. 482; Chicago R. R. Co. v. McLaughlin, 47 Ill. 265; Chicago Etc. R. R. Co. v. Stumps, 55 Ill. 367.

2 Galpin v. R. R. Co. 19 Wis. 604; Ind. R. R. Co. v. McClure, 26 Ind. 370; Ill. C. R. R. Co. v. Middlesworth, 46 Ill. 495; Chicago Etc. R. R. Co. v. Cauffman, 38 Ill. 424; 1 Redfield on Railways, 464. "The decisions upon the subject of injuries to domestic animals by railways are very numerous, but may be reduced to a comparatively few principles. Where the owner of the animals is unable to show that as against the railway they were properly upon the track, or, in other words, that it was through the fault of the company that they were enabled to come upon the road, the company are not, in general, liable, unless, after they discovered the animals, they might, by the exercise of proper care and prudence, have prevented the injury." It is to be observed, however, that this rule yields to distinct statutory enactment such as exists in some of the States whereby, in terms, the fact of the injury is made prima facie evidence of carelessness on the part of the company. (Danner v. R. R. Co. 4 Rich. Law, 329; Murray v. R. R. Co. 10 Id. 227; Balcom v. R. R. Co. 21 Iowa, 102; Whitbeck v. R. R. Co. Id. 374; Ill. C. R. R. Co. v. Whalen, 42 Ill. 396.) But these statutes are in the nature of exceptions to a general rule. (Shearman & Redfield on Negligence, Sec. 479.) "In South Carolina, proof that horses or cattle were killed by a train is sufficient prima facie evidence of negligence on the part of the railroad company. This may be right where the common law of the State binds the railroad company to fence out cattle. But where the English common-law rule prevails, the plaintiff must give further evidence than this to make out a prima facie case. The

tinction has been made, in this respect, between injuries to permanent property situated along the line of the railroad, such as injury to buildings by fire communicated by the company's engines, and damages to cattle which are constantly moving from place to place. But the general rule appears to be applicable, that all persons are bound to so conduct their business as to avoid doing injury to persons other than themselves, who have an equal right under the law to pursue their avocations, and the running of railroad trains must be so conducted as to avoid collisions with animals, where due precautions could prevent them. As to what are proper precautions, the observance of which would negative the charge of negligence, is a question of fact,

burden of proof is upon the plaintiff to show that the cattle were lawfully there, and that the railroad company was negligent. And, if the cattle were not lawfully there, he must prove such negligence as will nevertheless make the company liable. Even where cattle may lawfully run at large, the South Carolina rule is not followed; and the plaintiff must prove some act of negligence. If the statutes concerning fences are relied upon as the ground of the action, the plaintiff must prove the want of or defect in a fence. (Scott v. R. R. Co. 4 Jones' [N. C.] Law, 432; Jones v. R. R. Co. 67 N. C. 122; Bellef. Etc. R. R. Co. v. Schruyhart, 10 Ohio St. 116; Ind. Etc. R. R. Co. v. Wharton, 13 Ind. 509; R. R. Co. r. Brown, 23 Ill. 94; R. R. Co. v. Sumner, 24 Ind. 631; Walsh v. R. R. Co. 8 Nev. 110.) "In actions for damages, arising from alleged negligence, the burden of proof is on the plaintiff." (Owens v. R. R. Co. 58 Mo. 386; Norton v. Itner, 56 Mo. 351; McDonnel v. R. R. Co. 115 Mass. 564.)

And "a railroad corporation is not liable for killing animals, which, being unlawfully upon a lot of land, go thence upon its track, and are there killed by a passing train, although it was the duty of the corporation to maintain a fence between its track and said lot, and it did not do so, unless the killing was wanton or malicious." (Id.)

Comstock r. R. R. Co. 32 Iowa, 376; but see McCoy v. R. R. Co. 40 Cal. 532, where the converse of the proposition is held to Le law. So in Macon Etc. R. R. Co. v.

Baber, 42 Ga. 300.

1 Scott r. R. R. Co. 4 Jones' Law, 433; Ellis v. R. R. Co. 2 Ire. 138; Piggot v. R. R. Co. 3 M. G. & S. (54 E. C. L.) 229; Herring . R. R. Co. 10 Ire. 406. The language of the opinion of this last case, commenting upon the two preceding ones, is: "In both cases, fire was communicated to the property of the plaintiff-in the one case a barn, in the other a fence, was set on fire by sparks from the cars. It was proven in both cases that the cars had been running for a long time without doing any damage, and, things remaining in the same condition, the fact that fire was communicated on a particular occcasion was properly held to be prima facie evidence that it was the result of negligence." The opinion then proceeds to point out the distinction between a barn or fence, which is stationary, and an animal, which has the power of locomotion, and the conclusion is that, in respect to the latter, the principle has no application, because things do not remain in the same condition, and the presumption of negligence in running into an animal because it had never been run into before does not arise because the animal would not have before been where it could have been run into.

controlled to a considerable extent by statute, and is a matter of fact for consideration of the jury, except where the proof is all one way, either in favor of or against negligence, in which case the inference is always one of law for the Court.2

§ 86. First duty of railway companies to guard their trains.—It is the paramount duty of a railway company, in the conduct of its trains, to care for the safety of persons and property traveling and being transported over their road; this duty is to be first regarded, and subordinate to it is that of avoiding unnecessary danger to animals straying upon the road.3

1 Toledo Etc. R. R. Co. v. Bray, 57 Ill. 514; Rockford Etc. R. R. Co. v. Bray, 58 III. 49; Cinc. Etc. R. R. Co. v. Smith, 22 Ohio St. 227; Gilman v. R. R. Co. 60 Me. 235; Smith v. R. R. Co. 34 Iowa, 96; Keliher v. R. R. Co. 107 Mass. 411; Sawyer v. R. R. Co. 105 Mass. 196; Memphis Etc. R. R. Co. v. Blakeney, 43 Miss. 218; Bemis v. R. R. Co. 42 Vt. 375. "The liability of a railroad company for the killing, by a train, of an animal which wrongfully strayed upon the track, depends on the question whether the engineer of the train used ordinary care to avoid doing injury. And this question is for the determination of the jury, in view of the circumstances of the particular case." "Where the track of a railroad passed through a cut eighty rods long, and a horse of the owner of the land was near the track at the entrance to the cut, and the whistle of an approaching engine was sounded, and the horse ran upon the track and into the cut, whence it could not escape up the sides, and the engine was run cn, and the whistle sounded, thereby continuing to frighten the horse until it jumped into a trestle-work at the other end of the cut, and was killed, when the engine could have been stopped after the horse was in the cut, and before it jumped into the trestle-work, held, that the company was guilty of such negligence as rendered it liable at common law for the value of the horse. The negligence in such case is willful." (Indianapolis Etc. R. R. Co. v. McBrown, 66 Ind. 229.)

2 Morrison v. R. R. Co. 56 N. Y. 307. In actions for damages against railroad companies, negligence "is not in every case a question for the jury of fact, or of fact and of law, to be given to the jury with instructions. Where the facts are undisputed, the question of contributory negligence may become one of law, as the other questions which arise upon a trial, and are submitted to the decisions of the Court on a motion for nonsuit or otherwise." (McIntyre v. R. R. Co. 37 N. Y. 287.)

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Although, in many cases where the facts from which negligence is to be inferred are undisputed, the question of negligence is one of law, to be passed upon by the Court, yet if the facts are disputed, and the evidence conflicting, the question should always be left to the jury." (Owens v. R. R. Co. 58 Mo. 386.) 8 "The first duty of a railroad company is to its passengers; and if an engineer is compelled to choose between risking the safety of passengers, or even of freight upon his train, and running over cattle on the track, he is justified in adopting the latter alternative." (Shearman & Redfield on Negligence, 494; Louisville Etc. R. R. Co. v. Ballard, 2 Met. (Ky.) 177; Bemis v. R. R. Co. 42 Vt. 375.)

The liability of a railroad company for the killing by a train of animals which wrongfully stray upon its track, in all cases not strictly provided for by statute, depends on the question whether the engineer of the train used ordinary diligence and care to avoid doing the injury. This is what is submitted to the Court, or jury, on the trial of the action for damages, and regard must be had to the circumstances of the particular case. There is no strict rule which compels the engineer, on seeing the danger, to slacken the speed of the train, unless he can do so with safety, and regard to the necessities of the case as to being at a place where he is to pass another train, or to maintain his position on the time-table so as not to endanger other trains.

§ 87. Railway companies may regulate speed of trains without regard to possibility of animals having got upon roadway. The owner of cattle who does not keep them within his own inclosure, when he might do so by proper care, cannot require of a railway company to regulate the management and speed of trains with reference to cattle coming upon the 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, not only on the individual train which is immediately affected by intrusion of animals on the roadway, but also on all other trains, the safety of which depends upon the promptness of the train in

"Necessary efforts made by the agents of a railroad, after the discovery of cattle on the track, to save the train and passengers from threatened danger, would not render the railroad liable, even though they might result in injury to the cattle." (Owens v. R. R. Co. 58 Mo. 386.)

The conflict of duty which is contemplated in these cases results from the fact, which appears to be conceded, that where a collision with animals is inevitable, the safety of the train demands that speed should be maintained or increased so as, by concussion, to insure the throwing of the animals off the track by the cow-catcher; such maintenance or increase of speed made to save the train is no evidence of negligence, but rather of extra care on behalf of the passengers and freight on the cars.

"The first and paramount duty to be observed when danger is apprehended from such obstruction [animals on the track] is the safety of persons and property on the train, or otherwise lawfully on the track, and as to such the law demands the exercise of the highest degree of care and diligence by the company and its agents. The next object of the attention of the agents of the company is the safety of their own property." (Bemis v. R. R. Co. 42 Vt. 380.)

the way of which the animals are, and the companies may, and in fact must, make their plans and arrange their time-tables upon the reasonable and legal presumption that other persons will perform all their legal obligations toward them, and, consequently, that the owners of domestic animals will keep them where they belong, and not suffer them to stray upon the track of a railway company, unless such owners are prepared to incur the legitimate hazards of such an exposure.1

But the duty of the company to the public, being by the corporation duly performed, does not relieve it from all responsibility; there is another and further duty, second in importance and subordinate to that which it owes to its patrons and employees, to so conduct their business as to avoid doing needless injury to others; and when cattle are found to be in the way of a train, the employees of the company, who control the movement of it, should do all in their power to avoid running into them.2

1 Bemis v. R. R. Co. 42 Vt. 375. "The use on land of engines and cars running on a railroad track at a high rate of speed, though dangerous, is a reasonable use of the land, because it is for a proper object and a highly beneficial purpose, and the danger may be avoided by proper care. There is, certainly, a risk to cattle running at large in the vicinity of an uninclosed railroad track, but this risk the owners of the cattle must take, unless they choose to avoid it by keeping their cattle within their own inclosures. If they do not choose to do this, they can ask no more than that the agents of the railroad company, in the legitimate conduct of its business, running its trains with a speed regulated by the grade of the road, the capacity of its locomotive power, and the safety of the persons and property carried, shall, with due regard to the safety of persons and property in their charge, being the paramount consideration, exercise what in that peculiar business would be ordinary and reasonable care to avoid unnecessary injury to animals casually coming upon their uninclosed road. Where there is nothing in the running of a train, or in its rate of speed at a particular place and time, inconsistent with the general and legitimate conduct of the business of the railroad company, we cannot see how the occasion and necessity therefor can properly concern an owner of cattle running at large. He cannot properly discuss with the company the proper exercise of the discretion vested in its agents as to the time or occasion of running its trains, and has no right to bring forward its time-table and list of connections, and enter into an inquiry whether the rate of speed was greater than usual for a particular train at a particular place, and whether such rate of speed was necessary to make a connection, or avoid a collision, or for some other proper object." (Central O. R. R. Co. v. Lawrence, 13 Ohio St. 71; Kerwhacker v. R. R. Co. 3 Ohio St. 173.)

2 Ind. Etc. R. R. Co. v. McBrown, 46 Ind. 229; 1 Redfield on Railways, 475; Louisville Etc. R. R. Co. v. Ballard, 2 Met. (Ky.) 177; Ill. C. R. R. Co. v. Baker, 47 Ill. 295. "There is no strict rule that the engineer, on seeing the danger, is bound to slacken the speed of the train. His first duty is to provide for the