| Miss. | Oct 15, 1910
delivered the opinion of the court.
Appellees, C. W. and W. T. Clogston, recovered judgment for one hundred dollars against the Illinois Central Bailroad Company, the appellant, for injury to two of appellees’ horses, alleged to have been caused by the negligence of appellant. From which judgment appellant appeals to this court. At the point where the horses were injured, appellant’s railroad was fenced on both sides, and there was a gap in the fence on one side, left open by appellant’s employes, through which the horses strayed onto the right of way, and were there injured by being frightened by the running of one of appellant’s trains, and caused to run into the wire fence inclosing the right of way in attempting to make their escape, by which they were cut and maimed. The parties agreed on the following facts in the case: “It is agreed by and between counsel for plaintiff and defendant in the above cause that the stock, injured as complained of by defend
It is contended that no liability is shown, and therefore the court should have granted the instruction, requested, directing the jury to return a verdict for appellant. L. C. R. R. Co. v. Walker, 6 3 Miss. 13, is not distinguishable from this case, and is decisive of the question involved. In that ease the-court held that the second and third instructions given by the court below for the plaintiff were erroneous and should not have been granted, which instructions are as follows: “(2) The court instructs the jury that if they believe from the evidence that the gap in the fence was left open with the knowledge of defendant or its employes, so that stock could stray into it and have no way of egress, these are matters of evidence they may consider in determining whether defendant was guilty of carelessness or negligence; and they may so consider them, even if they should believe further from the evidence that when the defendant killed plaintiff’s mules every care and precaution on their part was used to prevent such killing.” “(3) The jury are instructed that, where a railroad fences in its roadbed and leaves a gap open, they are required to exercise a greater degree of care than is ordinarily required of them, if stock should otherwise stray on the roadbed of the railroad” — and that those refused the defendant (except where there was repetition) should have been granted, among which were the fourth and seventh, as follows: “(4) If the evidence in this ease proves to you that at the time the stock was killed that the railroad was running and managing their train with ordinary care and reasonable prudence, and that the
In this case liability is sought to be predicated alone upon the fact that appellant had its roadway fenced, and negligently left an opening therein, resulting in the injury; for by the agreed facts it is expressly stipulated that there was no negligence on the part of the employes in handling the train which frightened and caused the horses to run into the.fence. The fact that in the Walker case the stock were injured by contact with the moving train does not, as contended, distinguish it in principle from this case. The point settled in that case is (which we approve) that, a railroad being under no duty to fence its track, if it. does so, and fails to keep it in repair, resulting in injury to stock straying upon its right of way, there is no liability for such failure alone.
Reversed and remanded.