which the law must impute to him before it can logically hold him liable for the damage that may be committed by his animal while thus trespassing. The difficult point in the case is to determine what duties devolve upon defendant, admitting that the animal was a trespasser and admitting the negligence of the owner necessarily involved in such trespass.
It is urged upon us with much earnestness and great learning that, under such circumstances, the defendant is liable for willful or wanton conduct or gross negligence. There are many cases which seem to sustain this contention. See Railroad Co. v. Munger, 5 Denio 255, affirmed in 4 N. Y. 349; Van Horn v. Railroad Co., 59 Iowa 33, 12 N. W. Rep. 752; Eames v. Railroad Co., 98 Mass. 560; Darling v. Railroad Co., 121 Mass. 118; Wright v. Railroad Co., 2 Amer. & Eng. R. Cas. 121; Railway Co. v. Stuart, 71 Ind. 500%3; Shittenhelms v. Railroad Co., 19 Amer. & Eng. R. Cas. 111: Maynard v. Railroad Co., 115 Mass. 458; Railroad Co. v. Stanley (Ind.), 27 N. E. Rep. 316; Bennett v. Railway Co., 19 Wis. 158; Vandegrift v. Rediker, 22 N. J. Law 189. In some of these cases the injury was to persons while trespassers, and in others to animals while trespassers. Possibly there is an inclination to adopt somewhat broader grounds of liability, where the injury is to the person instead of property, but the same general doctrines are announced in all of the cases. A careful perusal of these cases fails to discover any discussion of the duties of the defendants after the peril to the trespassing person or animal was known. In the leading case in 5 Denio, which was an action to revover the value of certain oxen killed by a train, it appeared that the oxen were trespassers, and were lying down upon the track at night. After they were seen all reasonable efforts were made to stop the train, but it could not be done in time to avoid the injury. The negligence alleged was the speed of the train, insufficiency of the headlight and the failure to see the oxen sooner. And in all of these cases-or all to which our attention has been called-it will be found that the negligence upon which a recovery was sought was a failure to see the trespassing person or animals as 8oon as he or they might have been seen, or a failure to give some signal at a crossing or curve that the law directed should
