Illinois Central Railroad v. Walker
63 Miss. 13
Miss.
1885
Check Treatment
Campbell, J.,

delivered the opinion of the court.

The second and third instructions for the plaintiff should not have been given. If every care and precaution was used by the servant of the railroad company to prevent injury to the mules, *20there was no liability for it. It is not true that where the railroad is fenced, and there is a gap in the fence through which animals enter, a greater degree of care is required to avoid injury to such animals than would otherwise be necessary to avoid liability. The case of Tyler v. Railroad Co., 61 Miss. 445, does not so decide. In that case it was held error to instruct the jury to find for the defendant. The facts were that cattle had entered a breach in the fence and crossed the railroad, and were seen by the engineer, who did not act on the just assumption that the animals when frightened would seek to escape by the way they had entered, and to do this would have to cross the road in front of the running train, but continued to run his train toward the cattle until it was too late to avoid killing a cow, which was trying to escape by crossing the road to the breach in the fence. On this state of facts we held that the jury should not have been instructed to find for the defendant, but should have been allowed to consider whether, under the circumstances, it was not negligence not to have acted on the knowledge of the instinct of the animals, and stopped the train, so as to afford an opportunity for their escape. The case gives no countenance to the proposition that, because thei’e was a fence and a gap in it, any greater degree of care on the part of the company with reference to animals on its right of way was required. As that case shows, there may be circumstances in which the existence of a fence and a breach in it will constitute factors in the solution of the question of care on the part of a railroad company to avoid injury to animals, but a fence and a gap in it are not per se a ground of liability for injury to animals which have entered. The instructions asked by the defendant and refused should have been given except such as were a mere repetition of the rule announced.

Reversed and remanded.