fendent shows the defendant guilty of no negligence or want of ordinary care, the prima facie case made by plaintiff in proving the injury to the horse in question by defendant’s train is overcome, and you must find for the defendant unless the evidence introduced by plaintiff shows affirmatively that defendant or its employes were guilty of gross negligence in injuring the horse.”
This was refused, and the following instruction given: “If, on the other hand, you shall find from all the evidence in the case that in the killing of this animal the persons in charge of the train at the time were guilty of negligence, that is, they did not exercise that care and prudence which a careful man should have exercised under the circumstances, and that the injury to the animal was the result of want of care on the part of those who had the train in charge, then your verdict must be for the plaintiff for the value of the animal and interest from the time of the injury.” The giving of this instruction and the failure to give the one requested are assigned as error. It will be noticed that these assignments involve the same questions raised by the motions for verdict, and the several assignments may profitably be considered together. Two more points are involved, to-wit, the contributory negligence of plaintiff and the degree of negligence necessary to charge defendant with liability. The discussion of the case took a somewhat wider range than it will be necessary for us to take in deciding it. In this state cattle are not free commoners. The common-law rule is in force, and every man is bound, at his peril, to keep his stock upon his own premises, and is liable for all damage done by such stock upon the lands of another, whether fenced or unfenced. Comp. Laws, § 5569. We have no statute requiring railroad companies to fence their tracks. Railroad companies are entitled to the exclusive use of their right of way at the points of intersection with public highways, except as against persons and animals upon the highways for the purposes of legitimate passage. The horse escaped from plaintiff's barn by accident. Plaintiff's servant made immediate pursuit, but before the horse was retaken the injury occurred. The learned counsel for appellant claims that, notwithstanding such fresh pursuit, the horse wasa trespasser. It is admitted that had the
