Breese, J.

This is an action brought by two plaintiffs, declaring upon their joint ownership of the property killed. The declaration contains three counts. The first is for a liability arising out of neglect in fencing the road, whereby the plaintiff’s cattle straying upon the road, were killed. The second and third counts aver negligence and carelessness in running the trains. There is no proof whatever in support of these counts, as the train was not seen to run over the cattle, and it is only from circumstances it is inferred they were injured and killed by the train.

The first objection is, that there is no proof in the record of a joint ownership of the property by the plaintiffs below. We have examined the evidence preserved in the record, and cannot find such proof. One of the witnesses states, one steer and some other cattle which they claimed, were killed on the road; the steer was worth ten dollars ; saw the steer by the side of the track, with three legs broken, not dead ; this was the last of September; a cow was killed some time in October, worth twenty-five dollars ; she was in Einnigan’s possession ; she had a fore and hind leg broken; was alive; was ten rods away from the track; the steer was fat; worth ten dollars for beef; only had its legs broken; the cow was fat; worth as much for beef as anything ; saw the colt, three legs broken, by the road side, a year ago ; worth ninety dollará ; don’t know which Finnigan owned the cow.

Another witness stated he knew the colt and it was worth from ninety to one hundred dollars; both of the Finnigans claimed the colt; could not swear that he belonged to either of them.

In such cases as these, it is the duty of courts and juries to hold parties claiming damages for killing or injuring stock, to reasonably strict proof of ownership. The first witness states that the cow was in Pinnigan’s possession, of which one he does not say; and so of the colt, the proof is that both of them claimed it. There is an absence of proof of a joint ownership such as they have declared on. There is no proof of negligence in running the train, and there was no proof that a fence was required by law to be made at the place where the animals were killed. The proof shows that the cow and steer were both fat and worth, one, ten dollars, and the other twenty dollars, for beef, and were good for beef, they having only been injured in the legs. We hold under such facts, that it was the duty of the owner to have disposed of them to the best advantage, if practicable. He should have made some effort to make them available, and had no right to abandon them wantonly, and then claim their full value. The company had a just claim on the owner to do so, and thus reduce as much as possible the damage and injury. The criterion of damages in this case is, the value of the cattle as-injured, and their value before the injury. If, after the injury, they were as valuable for beef, as the proof shows, as before the injury, and the owner wantonly abandoned them, he ought not to recover their value. If one leaves the gate of another open, by which some slight injury is done the owner of the gate, the owner has no right to leave it open in order that he may thereby charge the delinquent party for any and all injury he may suffer thereby. He should shut the gate.

The instructions asked for by the defendant, were properly refused, for though Keith and Snell were operating the locomotive and cars under a contract with the company, that does not release the company from liability. Ohio & Mississippi Railroad Company v. Dunbar, 20 Ill. R. 623.

We think a new trial should have been awarded, and accordingly reverse the judgment and remand the cause for that purpose.

Judgment reversed.