Vicksburg & Jackson Railroad v. Patton

31 Miss. 156

• Court: Mississippi Supreme Court
• Decided: April 15, 1856
• Status: Published

Opinion

Handy, J.,

delivered the opinion of the court.

This action was brought by the defendant in error against the plaintiff in error, to recover damages occasioned by the locomotive and cars of the railroad running over and killing or wounding several horses and a mule belonging to the defendant in error; which injury is alleged to have been caused by the negligence, mismanagement and improper conduct of the railroad company or its agents.

It appears by the evidence in the record, that the injury was done in July, 1851, when the cars were on their usual morning trip from Brandon to Jackson; and that the slaves of Patton had ridden the horses to the place where they were at work in the woods, about a mile from the residence of Patton and along a neighborhood road which crossed the track of the railroad, and which was the road used in going from Patton’s residence to the place where his slaves were at work. The animals appeared to have been turned loose to pasture, their owner being in the habit of pasturing them upon unenclosed and uncultivated lands adjoining the railroad track, owned by other persons, and which had been used by the neighborhood generally for pasturage for a great number of years, without objection, such animals having been accustomed to run at large for pasture in the neighborhood since, at least, the year 1829. About the time the injury occurred one of the horses was seen by a witness, standing on the railroad track where the neighborhood road crosses it, and the others were standing near the intersection of the two roads. From that point to the place where the horses were visible by persons on the cars coming from Brandon, it was not less than two hundred yards, and probably more; and from the same point to the culvert, where the collision took place, it was a further distance of about one hundred and forty yards, the track being, for this latter distance, thickly set-on both sides with bushes, and on an embankment four or five' feet in height. On the morning of the occurrence, the cars were’ running with unusual rapidity, such as had never been seen before by a witness who lived near the road. This witness was in full view of the cars and of the animals, when the locomotive came within sight of the animals. The whistle was sounded before reaching the place of intersection where they were standing, but there was no change of speed perceived, nor any effort to stop the locomotive, by applying the hralce or reversing the engine. When the locomotive approached within about one hundred yards of the placo where the animals were standing, they turned and ran down the track until they reached the culvert, and being- unable to go further or to escape from the track, they were there overtaken by the locomotive and mangled or killed; and the locomotive thrown from the track down the embankment, a distance of some thirty or forty feet.

The train at the time consisted of the locomotive and tender, a negro car, a passenger car and five freight cars; and the persons in charge of it were the engineer, the conductor, and a negro fireman. There was a grade on the track from the culvert to the point where the horses were first visible to the engineer, at the rate of twenty-four feet to the mile, by measurement, and a moderate curve in the track.

It was proved by an experienced engineer that the engine used on this road at the time, was in good condition — that such an engine, when running at the speed of twenty miles an hour, can be stopped in six hundred feet, by applying the brakes, which should be in the front and rear of every car, and worked by competent hands, and by reversing the engine in due time; and if there be sand boxes, to scatter sand upon the track, which is necessary in case it should be wet. He was of opinion that the engine could not have been stopped in six hundred feet upon this road, from his knowledge of its condition and the train usually attached to it— that if it was wet at the time, the difficulty of stopping would have been thereby increased — but that if every thing had been in perfect order, six hundred feet is a sufficient distance for stopping the engine — that nine hundred feet would be necessary if the track was wet, and there was a grade of even two feet — that brakes, with a sufficient number of brakemen, and sand boxes filled with dry sand, are essential to the management of the train with safety.

There was testimony showing that there was much grass on the track at the time, and also testimony to the contrary; and it was shown, that with the track in that condition, it would have been difficult to stop the locomotive; and if the track was in that state, that it was in a very bad condition.

There was also some testimony showing that the track was wet at the time; but there is a clear preponderance of evidence to show to the contrary, that the weather was clear, hot and dry, and that there was no dew on the track at the time.

As to the character of the engineer, the testimony is conflicting. But while there is testimony to show that he was attentive and competent, the weight of evidence tends to show that he was not a careful and prudent man; that he was addicted to dissipation and drunkenness, and sometimes not sober when in the discharge of his duties as engineer; that it was often necessary to awake him in the morning for the cars, after he had been drinking; that there was a constant sounding of the whistle on the morning of this occurrence, and before reaching the point where the animals were found, so much so as to attract the observation of the neighbors at the unusual rapidity and noise of the cars ; and that the engineer was in the habit of sounding the whistle when there were no cattle on the track, and when there was no occasion for it, and wantonly.

It was in proof by a witness, who was on the locomotive with the engineer at the time, that the engineer had been drinking liquor that morning, enough to feel it, but “ was not drunk, but lively that when they first saw the animals, which was at a distance of about two hundred yards from the place where they were crossing the road, this witness remarked to the engineer that there was danger, and that he replied, Tie dicl not care, let them get out of the way ; that he did nothing to stop the train until the locomotive struck the first of the animals, and then the fireman sprang to the •brake and witness helped him, but without effect; that about that time, the engineer reversed the engine ; that no order was given to apply the brake, the fireman acting of his own accord, and the witness, to save himself.

The testimony of this witness is impeached by the production of a letter, testified by a witness to have been written, at his instance, shortly after the occurrence, to the president of the railroad company, exculpating the engineer from all blame; which letter he denied in his deposition that he ever wrote or authorized to be' written. But in many material respects his testimony was sustained by the other witnesses; and the question of credibility was one which the jury had the right to determine, under all the circumstances.

It was further proved that the conductor, a lad of about seventeen years of age, was in the passenger car when the collision took place, and had been there for some time, reading a magazine or something of that kind, and paying no attention to the progress of the train; and that he knew nothing of the danger until he heard the sound of the whistle, when he looked out and saw the animals running ; he sat down immediately and felt a sudden motion like that caused by reversing the engine. He then got out of the cars and found that the engine had run off the track, the negro car across the track, and the passenger car thrown nearly off the track, the animals lying dead or wounded upon the track. This witness proved that the cars started behind their usual time that morning from Brandon, and were running at the rate of eighteen or twenty-miles an hour when the collision occurred.

It was further proved in behalf of the railroad company, by a witness, who was not an engineer, but had been superintendent of this railroad for many years, that he was at the place on the day after the occurrence, and was of opinion that if the engine was running at its usual speed and there was dew^ and grass on the track, it could not have been stopped, at the point where the accident occurred, in less than one thousand to fifteen hundred feet, with every appliance; that there was a curve and a grade descending towards the culvert, from Brandon, of thirty-two feet to the mile, as he judged by his eye; that there was much grass on the track, and he considered the road, and cars, and locomotive in good condition ; that the grass would cause the wheels to slide, and render it difficult to stop the cars.

There was not more than one brake to the train, no brakemen, and no sand-boxes, and the track was not fenced in or enclosed.

This appears to be the substance of the evidence, and it is here stated so much at length, in order that some of the questions presented in the case, and depending upon it, may be properly comprehended.

The value of the property destroyed, or injured, was proved to be $550 or $600, and some further damage is shown to have resulted from the injury. The jury found a verdict of $1211 90, which exceeded the value of the property and actual damage proved; -and the defendant below moved for a new trial. First, because the verdict was contrary to law and evidence; and, second, because the damages were excessive. This motion was overruled, and the case is brought here for alleged error in that, and in the ruling of the court upon the trial, to which exceptions were taken.

Several questions of great importance, and of the gravest public interest, are here presented for the first time for the determination of this court. Fortunately these questions, though new in this court, have engaged the attention of the most learned courts in this country and in England; and in the consideration of them, in addition to the aid of the able arguments of the counsel for the respective parties, we have had the benefit of numerous adjudications of other judicial tribunals, involving the same or similar questions. By such aids, we are enabled to come to conclusions satisfactory to our minds, upon a subject of such profound importance in its direct and collateral bearings, and will proceed to state the views we take of the various questions presented for decision.

It is insisted in behalf of the railroad company, that by their charter, they had the absolute and exclusive right to the land covered by their track, with the privilege of running their engines and cars at whatever times and at whatever speed they saw proper, without obstruction; that they were not required by their charter nor by any other law, to fence their track; that the exclusive property in it being in the company, it was a wrong on the part of the owner of these animals to suffer them to be upon the track that it was his duty to keep them within his own enclosure, or upon his own premises, and that if injury occurred to them, in consequence of being suffered to go at large, and where they might be upon the railroad track, and thereby interfere with the legal and proper business of the railroad, it was by the plaintiff’s own wrong, for which he is entitled to no redress; that being on the road wrongfully, and in derogation of the lawful business of the company, they were not bound to pay any attention to them, and might lawfully run their engines and cars in their proper business, without regard to them, and without responsibility for their destruction.

The first point of inquiry, therefore, is, what are the rights and duties of the railroad company, in the use of their road, with reference to the rights of others ?

It is certainly true, that they have the absolute and exclusive right to run their engines and cars upon their track in furtherance of the objects of their charter, without interference by others; and that no one else has any right whatever to the use or occupancy of their track. But this right is to be exercised in subordination to the general laws and policy of the State, unless where the company is, expressly or by necessary implication, excepted from their operation. And while their duties to those immediately connected with them in the objects of their business, are faithfully to be performed, the rights of others collaterally interested in their operations, are not to be disregarded. The highest of these duties is that which arises from a proper regard for the safety of persons who entrust their lives to the care and skill which are bound to be employed in the use of vehicles of so much hazard and danger. In this respect, the law imposes upon such companies the greatest strictness in providing all things necessary to the safety of passengers, which care, skill and foresight require; and that their agents should be faithful and vigilant, and in all respects competent and trustworthy of the great responsibilities committed to them. Without an implied guaranty by such companies, for fidelity in these respects, the dangerous power given to them could never have been granted.

The relations of the company with other persons, growing out of the use of their franchise, are also governed by the general rules of law, from which, for the most part, they are not exempted by their charter. Their right of exclusive use and enjoyment of their track, confers no power to violate the rights of others with which the exercise of their right may come in conflict; but must be exercised so as not to injure the rights of others. It is no greater than the owner of the land, in fee simple, had before it was acquired by the company; and if such owner had no right, in carrying on his lawful business upon his own unenclosed land, to destroy his neighbor’s beasts found upon it, neither could this company, in conducting their business, justifiably destroy such animals, unless the act was unavoidable, after the exercise of all due skill, prudence and care, by the company and its agents. For the rights and powers of the original proprietor, with regard to the land, were at least as high as those of the railroad company, and the rights of the owner of the animals, whatever they were, were as much under the protection of the law as those of the company. The idea is wholly inadmissible, that in giving the company the use of the land covered by their track, for the purpose of running their engines and cars, it was intended to confer upon the corporation, privileges and immunities in the land, which the original owner, who had the full and absolute dominion over the same property, to all intents and purposes, did not possess; and it is manifest, that no immunity being provided in their charter, they hold the land' subject to the laws and general policy of the State, with no power, as to dominion over it, superior to that of the original proprietor.

Let us, then, test the rights and duties of the parties to this controversy, by the same rules of law applicable to the relations of the proprietor of the land before it was granted to this company, and the owner of the animals, the subject of this suit.

Suppose such proprietor, not having enclosed his land, had had upon it works, in Which dangerous machinery was employed, in carrying on his lawful business; or suppose he had had a railroad upon it, and in full operation, performing all the business of such a work, for his individual benefit and profit, but with no safeguards to protect his works against injury from the cattle of his neighbors; what is the rule by which, under such circumstances, he must be governed in the use of his property, in the way he had seen proper to use it, with reference to the encroachment of his neighbors’ beasts upon his land, and their interference with his business ? It is clear, that there was no right in his neighbors to permit their cattle to encroach upon his property. But if they had a right to suffer their cattle to go at large in a neighboring range or common pasture, ordinary prudence would dictate, that the proprietor of the land and works should take proper means, by fences or otherwise, to prevent intrusions, which would in all probability be made by -them upon his property, and to the injury of his business; and if he omitted to do so, and without such precautions, continued to pursue his business, and use .his property, regardless of the fact that the cattle were in the way, and, without the necessary care and prudence to avoid injury to them at the time, and the cattle should be destroyed, he would be responsible; unless under our laws the cattle would be trespassers, and liable to be distrained damage feasant.

• The question, then, is, whether by our laws and policy, a man is compelled to keep up his cattle, so as to prevent depredations upon Ms neighbor’s unfenced and unenclosed premises; or whether a man is not justified in suffering his cattle to go at large in the range or common pasture, without liability to those on whose premises, not being lawfully fenced, they may go; and whether it is not required that the owner of lands, before he can justify an injury done to his neighbor’s beasts, which have come upon his lands, must not show that the trespass was done notwithstanding he had such a fence as is required by law, or that the injury was unavoidable, and such as could hot have been prevented by due care and prudence.

It is urged in behalf of the railroad company, that by the rule of the common law, the owner of cattle was bound to keep them within his own enclosure; that the owner of lands was not required to guard against their intrusion upon his premises, but that the owner of cattle was bound to prevent them from entering upon the premises of others, whether fenced or not; that this rule of the common law prevails here, and that it is unlawful to permit cattle to graze in a neighboring range or common, or unenclosed pasture, from which they may go upon the premises of individuals to their injury; and consequently, that the act of the plaintiff, in permitting his animals to go at large, being unlawful, he is not entitled to any redress for their loss, which resulted from his own wrong.

These positions are sustained by decisions of the Supreme Courts of New York, Vermont, Pennsylvania, and Michigan, founded on the reason, that the rule of the common law prevailed in those States, which compelled persons to keep their cattle off their neighbor’s lands, and holding that that principle is applicable to cattle suffered to go at large and found upon railroad tracks, where they were destroyed. On the contrary, a different rule is held in Connecticut, Indiana, Ohio, South Carolina, and Alabama; Stadwell v. Ritch, 14 Conn. 293; Seeley v. Peters, 5 Gilman, 130; Kerwhaker v. Cleveland Railroad Company, 3 Ohio State R. 172; Fripp v. Hasell et al., 1 Strob. Law R. 176; Nash. and Chatt. Railroad v. Peacock, 25 Alabama, 232; and the rule of the common law is held not to prevail, because it is inapplicable to the condition and circumstances of the people of those States, and repugnant to the custom and understanding of the people, from their first settlement down to the present time.

It cannot be denied that the common law of England is the law of this State only so far as it is adapted to our institutions and the circumstances of the people, and is not repealed by statutes, or varied by usages which, by long custom, have superseded it; and that where the reason of it ceases, the rule itself is inapplicable. In a densely populated country like England, with small farms and but few cattle, the reason of the rule that every man shall prevent his cattle from going at large, is apparent; and the rule prevails, because it is suited to the condition of that country. The policy of the common law, therefore, was, that it was more convenient that a man should be bound to fence Ms cattle in, than that he shall fence Ms neighbors’ out. The same reason may render it applicable in many of the States of this Union, and in those where this rule has been held to prevail.

But the circumstances of our people are widely different from those of such communities. This State is comparatively new, and, for the most part, sparsely populated, with large bodies of woodlands and prairies, which have never been enclosed, lying in the neighborhoods of the plantations of our citizens, and which, by common consent, have been understood, from the early settlement of the State, to be a common of pasture, or, in the phrase of the people, the “range,” to which large numbers of cattle, hogs, and other animals in the neighborhood, not of a dangerous or unlawful character, have been permitted to resort. These large numbers of cattle and other animals are necessary to the wants and business of the people, whose great interest is in agriculture; and the large and extensive tracts of land suitable for the pasture of stock, are most generally not required by the owner for his exclusive use. If so required, no one questions his right to fence them in, and to appropriate them accordingly. But until he does so, by the universal understanding and usage of the people they are regarded as commons of pasture, for the range of cattle and other stock of the neighborhood.

This policy is sanctioned by strong reasons of public convenience, growing out of the condition of the people. The greater part of the lands of the State have been comparatively but recently brought into cultivation. When purchased and taken possession of by their owners, they were wild. The timber had to be cleared, buildings erected, and as much land as could be, brought into speedy cultivation. The settler had but little time to enclose his lands, and therefore he made enclosures only as his necessities and convenience required. He turned his cattle into the range, because it was more convenient to do so than to build fences and keep them within his own enclosures. His neighbors did the same thing; and the practice became general, and thus the usage has established the general rule among the people, that it is more convenient to malee fences to Iceep the cattle of others out from lands not intended to be used for pasture, than to fence their own cattle within their enclosures. And by this custom a large amount of pasture, which would otherwise be lost, becomes useful and valuable, in rearing great numbers of cattle and stock of various kinds, contributing greatly to the convenience and emolument of our people. It is also highly convenient in rendering a man safe in pasturing his own cattle on his own unenclosed lands, which he could not do with safety if the common law rule prevailed; because his cattle, when pasturing upon his own unfenced lands, would be liable to intrude upon his neighbor, and be subjected to the common law rule arising from the trespass. He would, therefore, be compelled to enclose his own pasture-lands before he could safely use them as such; and such a necessity in the condition of the lands of this State, would be a great public grievance.

For these considerations, the custom has grown up among the people and is well settled by universal acceptation, that a man is entitled to permit his cattle and other stock to go at large in the neighborhood range, and is not liable as a trespasser for the damage done by them to the premises of his neighbor, which are not enclosed by a lawful fence. This being the condition of the people from the first settlement of the State, and the same reasons of convenience still prevailing, it is manifiestthat the rule of the common law is wholly unsuited to our circumstances, and, upon well settled doctrine, cannot be held to be applicable here.

If there could be a reasonable doubt upon this point, it must be removed by tbe provisions of our statutes. These provisions are utterly irreconcilable with the rule of the common law, and are made with reference to the contrary policy which has existed here.

The twelfth section of the Act of 1822, Hutch. Code, 276, which was a re-enactment of an Act passed in the early history of the State, provides that “ it shall not be lawful for any person to drive any horses, mules, cattle, hogs, or sheep, from the range to which the same may belong.” The next section provides penalties for the violation of that provision. The fourteenth section prohibits animals of a particular character from being suffered to run at large in the woods, or in any enclosed range. Other sections make it the duty of each owner of horses, or other stock, to have a brand and ear-mark, and to have the same recorded; the object of which was, that the stock of each owner in the range might be known and designated. And the seventeenth section prohibits the owner from sending or permitting any slave or Indian to go “into any of the woods or ranges of this State,” to mark or brand any cattle, - &c.

These provisions clearly recognize the right of any owner of horses, cattle, or other stock, to put them in the range, which means the unfenced wood lands, or other pasture lands in the neighborhood.

Again. The Act of 1822, Hutch. Code, 278, 279, which is a transcript of the Territorial Act of 1807, .provides that, “if any horses, &c., shall break into any grounds enclosed with a strong and sound fence, five feet high, well staked and ridered, or sufliciently locked, and so close that the beasts breaking into the same could not creep through, which shall be deemed a lawful fence,” the owner shall be liable to the party injured for damages. This provision is altogether useless, if the owner was bound to keep his cattle within his own enclosure; for by that rule he was liable for damages to the party injured by the trespass of his cattle, whether his premises were fenced or not. But it is plain that it was the object of this statute to change the rule of the common law-, and to provide that the party whose cattle should intrude upon the premises of another, should not be liable for damages, unless the party injured kept a lawful fence. This intention clearly appears from the third section of the same Act, which prohibits “ any person injured for want of such sufficient fence,” under a heavy penalty, from wounding or killing any horses, mules, or other stock, trespassing upon their premises.

The policy upon which these enactments are founded, and the acts themselves, clearly establish two principles — first, that the owner of cattle may rightfully suffer them to go at large for pasture upon the neighboring range ; and, secondly, that the owner of lands is bound to keep them fenced with a lawful fence, if he would prevent the intrusion of cattle upon them; and otherwise, that he cannot complain that the intrusion is unlawful. And it has been held by this court, that under these provisions, when cattle break through an insufficient fence into the premises of a party, he has no right of action for damages, and cannot distrain damage feasant, which were clear rights at the common law; thus conclusively settling that the rules of the common law are not in force here. Dickson v. Parker, 3 How. 220.

It is to be observed that the cases above adverted to, holding that cattle found upon a railroad track may lawfully be destroyed, in the prosecution of the business of the company, are founded upon the reason, that the owner' was compelled by the rule of the common law to keep them up, and that it was by the violation of that common law duty that the cattle were at large and upon the road; and, therefore, that the owner, having been guilty of a wrong, is entitled to no redress against the company. Having shown that this rule of the common law does not prevail here, the argument founded upon it fails; and the conclusion follows, that the plaintiff cannot be considered as a wrong-doer in suffering his animals to go at large for pasture, and that the animals were not unlawfully on the railroad track so as to justify the cprapany in destroying them, without using all due care, prudence and skill, to avoid their destruction.

But it is contended that the railroad company, having the exclusive use of their track, the plaintiff’s cattle were improperly there, interfering with the lawful business of the company to the hazard of the lives of their passengers, and impeding the speed which, from the very nature of their business, they were authorized to use in running their engines upon their track, and, therefore, that the injury was done without wrong on the part of the company.

This position is met with so much clearness and force by the Supreme Court of Ohio, in the ease above cited, as to justify our adoption of the views of the subject there taken. The court say, “ The defendant’s right to the exclusive and unmolested use of its railroad track, is undeniable. And it must be conceded that the plaintiff had no right to have his hogs on the track, and that they were there improperly. But how came they there ? If the plaintiff had placed them there, or knowing them to be there, had omitted to drive them off, he would have been, perhaps, precluded from all claim to compensation. But it would appear that, in the exercise of the ordinary privilege of allowing these animals to be at large, by the plaintiff, they accidentally and without his knowledge, wandered upon the railroad track. The right of the defendant to the free, exclusive, and unmolested use of its railroad, is nothing more than the right of every other land proprietor in the actual occupancy and use of his lands, and does not exempt it from the duty enjoined bylaw upon every person, so to use his own property as not to do any unnecessary and avoidable injury to another. Finding the animals upon the track, it was the right, and indeed the duty, of the agents of the company to drive them off, but not to injure or destroy them by unnecessary violence. The owner of a freehold estate in lands, enclosed by a lawful fence, has the right to expel trespassing animals which have broken through his enclosure; but in doing so, he would become liable in damages to the owner of the animals, if they be injured by the use of unnecessary and improper means, although the latter would be bound to make reparation for the injury done to the former, by the trespassing animals.' It is not pretended that the railroad of the defendant was under enclosure, through which the plaintiff’s creatures had broken. It is true, that there is no law here requiring railroad companies to fence their road. But when they leave their roads open and unfenced, they take the risk of intrusions from animals running at large, as do other proprietors who leave their lands unenclosed. If a farmer undertake to cultivate his ground in corn without enclosing it, he would be doubtless troubled by the destructive intrusions of cattle running at large; but without a sufficient fence, he could not maintain an action against the owner of the animals for the trespass. The defendant constructed its railroad with a knowledge that it was the common custom of the country to allow domestic animals to run at large upon the unenclosed ground of the neighborhood; and without the precaution of enclosing its railroad, the company could not sustain an action against the owner of such animals at large, as might happen to wander upon the track of the road. The owner of the animals, in allowing them to run at large, takes the risk of the loss or injury to them by unavoidable accident; and the company, in leaving its road unprotected by enclosure, runs the risk of the occasional intrusions of such animals upon its road, without any remedy against the owner.”

It is a sound and revered maxim of the law, that though a man may do a lawful thing, yet if damage thereby befall another, he shall be answerable for it, if he could have avoided it. Broom, Legal Maxims, 275; Aldridge v. Great Western R. R. Co., 4 Scott, N. R. 156. This principle is entirely at war with the doctrine apparently sanctioned by some of the cases cited in behalf of the plaintiff in error, that the nature of their business required them to use great speed, and therefore, that they were justified in running their engines regardless of cattle upon the road, with whatever speed they might think fit, without liability to the owner of the cattle thereby destroyed. Such a doctrine is unfounded in sound law, and would be dangerous and mischievous in the extreme, both to the lives of passengers of the company, and to persons whose rights may be collaterally involved in their operations. For such a rule, while it would give to conductors and engineers upon such road, a free license wantonly to destroy cattle which might casually be upon their track, and in any way impede their progress, would greatly endanger the safety of travellers on the road, by subjecting their lives to the capricious exercise of this liberty by the agents of such companies. These mischiefs would almost necessarily result from such a principle, if sanctioned; and the consequence would be, that all confidence in such works would be destroyed; and, instead of being sources of public convenience, as they would be under the salutary restraints of law which bind the citizen, they would be converted into instruments of private oppression and' public calamity.

Again, it is said that the destruction of the plaintiff’s animals was in consequence of his suffering them to be in a situation exposed to destruction, and of which he was bound to take notice; and that the rule is, that where the injury has resulted from the fault or negligence of the plaintiff, or from the fault or negligence of both parties, without any intentional wrong on the part of the defendant, there can be no recovery.

It is already shown, that it was not unlawful in the plaintiff to suffer his animals to go at large in the neighborhood of the railroad, and as that was the remote cause of the injury, it cannot be said to be a wrong or gross negligence. It is true, the highest degree of prudence might have induced him not to suffer his cattle to be at large near the track and exposed to its dangers. But was he bound to use such precaution? He is to be presumed to have acted with a knowledge of the relative legal rights and liabilities of himself and the company. In suffering his cattle to range, exposed to the dangers of the railroad, he subjected himself to the hazard of all that the company might legally do in destroying them, but to nothing further. And they were justified in destroying them only in the necessary prosecution of their business, and when the act should become unavoidable, after the use of such care, prudence and skill, as a discreet man would employ to prevent it. He had the right to act, and must be presumed to have acted, on this rule; and if he suffered by it, but without any violation of it by the company, he would be without redress. But he was not bound to lose his right to range his cattle near the railroad and keep them enclosed, upon the assumption that they would be illegally destroyed by the company, if suffered to go at large near the road. He had as high a right to range his cattle in the neighborhood of the road, as the company had to run its engines and cars along their track; a right prior in time to that of the company, and one equally entitled to be noticed and respected by the company. If the plaintiff was bound to respect their right to run their cars and engines, by keeping his cattle enclosed, in order to prevent their exposure to the dangers of the road and damage to the company, by parity of reason was it the duty of the company to respect his prior right of range, by keeping fences to protect their road from incursions of his cattle, and to save him from injury by their destruction. The road was under no legal obligation to fence its track, nor was the plaintiff bound by law to keep his animals enclosed, in order to prevent their exposure to the dangers of the road; and so far the legal obligations are equal. But the same rule of prudence that would require the plaintiff to enclose his cattle, in order to avoid the danger of destruction by -the railroad, would also demand of the company, as a matter of protection to its property and of safety to the lives of its passengers, to fence its track. If there is any difference in the degrees of duty, it would appear that the latter was much the higher and more imperative, and the delinquency on the part of the company in neglecting it, would, of course, be greater.

It is, therefore, manifest, that the injury cannot he ascribed to the fault or negligence, of the plaintiff, in which the defendant is not inculpated. And the most favorable point of view in which it can be regarded for the defendant is, that both parties were mutually in fault, and both the immediate cause of the injury. In such a case, unless the injury be malicious and wanton, the party injured cannot maintain an action, because the injury has been caused by his own wrong.

But this rule is subject to several qualifications, which render it inapplicable to the facts of this case.

1. It does not apply where the party committing the injury might have avoided it by the use of common and ordinary caution; and this is the rule, even where the remote cause of the injury is the unlawful act of the party complaining. This is held by numerous authorities. In The Mayor of Colchester v. Brooke, 7 Q. B., 53 Eng. Com. Law Rep. 339, the plaintiff had deposited and kept a bed of oysters in the channel of a navigable stream, thereby creating a public nuisance; yet the defendant was held liable for running his vessel upon the bed of oysters, greatly injuring them, there being room to pass in the stream without it, because the injury could have been avoided by the use of reasonable care and diligence. In Bird v. Holbrook, 4 Bing. 628; 13 E. C. L. R., the defendant had set a spring-gun upon his walled garden, to protect his property from being stolen, and the plaintiff, in climbing over the wall in pursuit of a stray fowl, was shot by the gun; it was held that the plaintiff was entitled to recover damages, although he brought the injury upon himself by a trespass upon the defendant’s enclosure. In the case of Deane v. Clayton, 7 Taunt. 489; 2 E. C. L. R., it is said that the rule “that you shall do no more than the necessity of the case requires, when the excess may in any way be injurious to another, is a principle which pervades every part of the law of England, criminal as well as civil, and, indeed, belongs to all law that is founded on reason and natural equity. ” The same rule is held in Lynch v. Nurden, 41 Ib. 422; Butterfield v. Forrester, 11 East, 58; Vere v. Lord Cawdor, Ib. 567; Vaughan v. Menlove, 32 Eng. Com. Law Rep. 211; New Haven S. and T. Co. v. Vanderbilt, 16 Conn. R. 421; Beers v. Hous. Railroad Co., 19 Ib. 566, and is involved in Parker v. Dickson, 3 How. 219.

Another qualification to the general rule, that there is no liability upon the defendant when the plaintiff has contributed to the injury, exists when, though both parties be in fault, the defendant has been the immediate and proximate cause of the injury. This is well settled by authority. Davis v. Mann, 10 Mees. & Wels. 545; Trow v. Vermont Cent. R. R. Co., 24 Vermont Rep. 494, and cases there cited; 3 Ohio State Rep. 194; Broom, Leg. Max. 283.

It may, therefore, be considered as settled law, that though there be negligence or fault on the part of the plaintiff remotely connected with the injury, yet, if at the time the injury was done, it might have been avoided by the exercise of reasonable care, prudence and skill, on the part of the defendant, the plaintiff may maintain his action for the injury.

It follows from these views of the case, that the instructions granted on the trial in behalf of the plaintiff were correct; and that the 2d, 3d, 4th, 5th, 6th, 7th, 8th, 10th, 14th, and 16th instructions in behalf of the defendant were erroneously granted, and the 13th instruction is questionable. And though the verdict was contrary to the instructions given in behalf of the defendant, it should not for that reason be set aside; because those instructions were erroneous, and should not have been given.

We will next consider the objections taken to the admissibility of certain evidence in behalf of the plaintiff.' This testimony tended to show that the engineer on duty at the time this injury was done, had previously been in the habit of sounding the whistle when there was no occasion for it, to frighten animals and to annoy the neighbors on the road. There was testimony showing him to be aman of dissipated habits; and the object of the testimony objected to, with other evidence to the same point not objected to, was to show his character to be that of a reckless and untrustworthy agent. It is not denied that it was competent to show the character of the agent, and his unfitness for the responsible trust ■reposed in him. It is the imperative duty of such companies to provide skilful, competent, and trustworthy agents, and they are responsible upon their failure to do so, for the consequences of their neglect of duty. Stokes v. Saltonstall, 13 Peters, 181; 14 How. 468. Upon a question involving his character and fitness for his trust, and the consequent responsibility of the company for his ■delinquency in these respects, it is not only competent but necessary to inquire into his previous habits and conduct, in order to ■show that the alleged misconduct at the time of the injury was in •keeping with his general character. Frequently it may be out of the -power of a party to show positively the reasons of the particular delinquency of such an agent; and in such cases it is proper and necessary to show his general character in order to explain his conduct at the time.

The counsel for the plaintiff in error place their objection, on the ground that this testimony tended to create a prejudice against the Company and thereby increase the damage. This may be true, though it does not appear to have been offered for that purpose ; but if the testimony was competent to show that the Company had employed a reckless and incompetent engineer, as it clearly was, that being a material point involved in the suit, it ■cannot be said that it should have been excluded. Being competent upon the issue, it is not to be presumed that it was perverted to an improper purpose before the jury.

The last objection urged against the judgment is, that the damages assessed by the jury were excessive. The amount of the verdict considerably exceeded the value of the animals actually proved, though there was evidence which might have justified the jury in somewhat exceeding that value. But it is plain that the jury gave exemplary damages, in some amount; and the question is whether the case justified a verdict of that character.

The evidence was sufficient to justify the jury in believing that the railroad track was in an improper condition, and unfit for the exigencies which may often arise in running such dangerous engines; being covered' with grass, só as to prevent their prompt stoppage, when necessary — that the cars were not supplied with the brakes and fixtures necessary to their safe running and speedy stoppage; and the injury here complained of is excused on these grounds — that the conductor was a lad of seventeen years of age, and giving no attention to his duties when the collision took place; that the engineer was a man of intemperate habits, reckless, and unfit for the responsible trust confided to him ; that either by his wanton conduct, or by the improper manner in which the cars were furnished with the necessary appliances for prompt stopping, (either or both of which the jury had the right to believe from the evidence,) the locomotive was not stopped, as it could and ought to have been, on a properly fitted and well-conducted railroad; that no proper exertion was made to stop the locomotive in time to avoid the injury, and that the engineer appeared reckless of the stock. No fault is imputed to the plaintiff, except that he did not keep his stock from the track, where they casually were without his knowledge.

Upon the evidence conducing to show this state of things, the court, by the consent of both parties, instructed the jury as follows :

“Everyman in the management of his own affairs, shall so conduct them as not to injure others; this duty was a mutual one, binding alike on the plaintiff and defendants; and if the plaintiff has failed to observe this duty, and the defendants be guilty of a like breach, the plaintiff has no right to complain, and cannot recover, unless, notwithstanding the conduct of the plaintiff, the injury would not have happened had it not been for the wanton and wilful negligence and misconduct of the defendants.”

The question of gross negligence and wanton misconduct was thus fully presented to the consideration of the jury.

Let us see what are the rules of law governing the conduct of the defendants in the prosecution of their business.

In the first place, the company is responsible for the tortious acts of its agent, whether the act was one of omission or commission, whether negligent, fraudulent, or deceitful. Philadelphia and Reading Railroad Co. v. Derby, 14 How. 486. And the same doctrine is held by the same court, in Stokes v. Saltinstall, 13 Peters, and is applied to an incompetent or careless agent. Railroad Co. v. Keary, 3 Ohio, 206.

In the case first cited, the Supreme Court of the United States say, in a case involving the liability of a railroad for an injury, by the neglect of their agent: “Where carriers undertake to carry persons by the powerful and dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence in such cases, may well deserve the epithet of gross.” 14 How. 486. And again: “Nothing but the most stringent enforcement of discipline, and the most exact and perfect obedience to every rule and order emanating from a superior, can insure safety to life and property. The entrusting such a powerful and dangerous engine as a locomotive, to one who will not submit to control and render implicit obedience to orders, is itself an act of negligence, the ‘ causa causans’ of the mischief. .... Any relaxation of the stringent policy and principles of the law affecting such cases, would be highly detrimental to the public safety.” Ib. 487.

. Again, it was the duty of the company to provide engines properly constructed and in good order, with suitable fixtures for preventing injuries likely to occur from the nature of their business; and to use “ such care and diligence in using their locomotive upon the road as would be exercised by a skilful, prudent, and discreet person, having a proper desire to avoid injury to property along the road;” Baltimore and Susquehanna R. R. Co. v. Woodruff, 4 Maryland, R. 257; to provide a safe track, a safe engine and cars, and a suitable number of competent and faithful men to carry on the work. Hegeman v. Western R. R. Co., 16 Barb. 356; 2 Denio, 441; 3 Ohio R. 206; 2 Cushing, 540.

Again, it is a well settled rule of law and highly applicable to engines and locomotives on railroads, that persons having charge of instruments of great danger, are bound to manage them with the utmost care. Dixon v. Bell, 5 M. & S. 198; Lynch v. Nurdin, 1 Q. B. 29; 41 E. C. L. R. It is well said by the Supreme Court of Ohio, that “ No one has the right to put in operation forces calculated to endanger life and property, without placing them under the control of a competent and ever active superintending intelligence. Whether he undertakes it or procures another to represent him, the obligation remains the same, and a failure to comply with it in either case, imposes the duty of making reparation for any injury that may ensue.” 3 Ohio State R. 209.

And in this, as in all other cases of agency, the rule is, that “ the principal holds out his agent as competent and jit to be trusted, and thereby he, in effect, warrants his jidelity and good conduct, in all matters within the scope of the agency.” Story on Agency, 452.

The question of gross negligence or wanton mischief was distinctly submitted to the jury, and was a material part of the case; and whether we consider it with respect to the bad condition of the track and the absence of appliances and fence necessary for its safe operation, or the unfitness and recklessness of the engineer, it is plain that the jury were at liberty from the evidence, to find that the injury was occasioned either by the gross neglect of the company, or the wanton mischief of the engineer. That was a question which they had the right to determine, and their verdict cannot be disturbed on that ground, when the evidence conduces to support it in any fair view in which it can be taken, especially when the testimony is conflicting, and the credit of witnesses is involved. Under such circumstances, their finding settles the fact. 14 How. 486; Lynch v. Nurdin, 1 Q. B. 29; 41 E. C. L. R.; Beers v. Housatonic R. R. Co., 19 Conn. 566. Lord Denman says, in Lynch v. Nurdin, “ It is a matter strictly within the province of a jury deciding on the circumstances of each case.”

And it is immaterial whether the jury thought there was gross neglect or wilful mischief. The rules above stated apply equally to either state of the case, and would warrant the jury in finding exemplary damages, if the circumstances of neglect or aggravation tended to justify it, and they thought fit to award it. In the last case cited, Lord Denman says, “ Between wilful mischief and gross negligence the boundary line is hard to trace: I should rather say, impossible. The law runs them into each other ; considering such a degree of negligence as some proof of malice.” Lynch v. Nurdin. And upon the same principle, the numerous cases, whether of gross negligence or wanton wrong have proceeded, in which exemplary damages have been awarded. For it matters but little to a party injured, whether the wrong be done with a malicious intent, or by gross violation or neglect of duty.

It must be taken, then, that the verdict of the jury settles the question, that there were circumstances of aggravation tending to show gross negligence, or a wanton and reckless disposition to injure or destroy the plaintiff’s property. And it is well settled, that if the property was destroyed under such circumstances, exemplary damages may be awarded. Sedgwick on Dam. 42 et seq.; Ib. 488, 489; 3 Graham & Wat. on New Trials, 1121 et seq., and cases there cited. And the damages allowed in this case do not appear to be enormous.

Upon a careful consideration of the whole case, in view of its great importance to the community, we are of opinion that the judgment is correct; and it is accordingly affirmed.

A re-argument was asked on so much of the opinion as relates to vindictive damages, but it was refused.