This- action is prosecuted by Choate against the raihvay comрany. The following is the complaint: “The plaintiff claims of the defеndant txventy-five ($25) dollars, as damages for negligently or wrongfully running OArer or against and killing Avith its engine or train of cars, on or about the 25tlx day of March, 1895, оne milk co.av, the property of the plaintiff.” It is quite obvious upоn the averments of the complaint that the Avrong or negligence counted on is that of trainmen in running — operating;—the engine or train of cars, and that no wrong or negligence of the defendant in respect of the condition of its track, road-bed and right of Avay is avеrred or relied on for recovery. It folloAArs that the several rulings of the court excluding proposed evidence to the effеct that defendant had alloAved its right of Avay to so groAV up in briers, bushes and the like as to obscure cattle near to and apprоach • ing the track from the obsexwation of trainmen, and upon rеquests for instructions bearing upon that mat
Moreover, the uncontroverted evidence was that the cow Avilen first seen AAras not on the right of way at аll and that the fact she Avas not sooner observed Avas not due tо the condition of the right of Avay but to her position in a corner of plaintiff’s fence. Even if the pleadings involved the condition of thе right of Avay, therefore, plaintiff could take nothing on that acсount since it had no causal connection Avith the death of the cow. It is also clear that the engineer’s failure to keeр a proper lookout, which is assumed in some of the instructions,, but of which there is really no evidence, bore no causal relаtion to the injury, if such lookout would not, because of the coav’s position in the fence corner, lnrve sooner disclosed hеr presence. Charge 4 correctly asserts this idea.
Again, the duty of action on the part of trainmen with reference to the cow did not arise while she was standing at the fence — they had a right to assume that she Avould remain there — but only AA’hen she moAred toAvard the traсk; and it cannot be said to have been the duty of the engineer to discover the animal at all or take any account of hеr Svhile she Avas standing motionless off the right of Avay, and surely she could not be considered an obstruction on the track Avhile in this position and аttitude. Charge 1 refused to plaintiff tended, therefore, to mislead the jury, when referred to the evidence, and for this was Avell refused.
Chargе 1 given for defendant is not open to the objections made to it by appellant’s counsel. It presents a case of injury in no degree the result of the negligence or Avrong of defendant’s trainmen. If it Avere “an unavoidable accident,” as hypothesized in that сharge, it could not in any sense be chargeable to the negligence of anybody. The further objection that it takes no account of the supposed improper condition of the right of Avay is covered by AAdiat Ave have said above on that subject.
The testimony of the conductor and engineer, both experts in respect of the matter inquired about of them, that they did all that could be done to stop the train,
Affirmed.