delivered the opinion of the court.

Appellee recovered judgment against appellant for the value of a mare. The animal was not struck by a train of appellant, but was injured by running into and falling from a trestle on the roadway. This case was before the court on a former appeal. Railroad Co. v. Kea, 96 Miss. 195, 50 So. 628. It was then decided that section 1985 of the Code of 1906, which raises the presumption of negligence, has no application to the case, ‘ ‘ as the mare was not struck or injured by the running of a train.” On this appeal it is again contended that the peremptory instruction to find for appellant should have been given. .

It was necessary for appellee to prove that the injury to the animal resulted from some negligence by the appellant. Reasonable care and prudence only is required of a railroad company in the running of its trains so as to avoid injury to animals on its track. The mare, accompanied by her colt, was seen, immediately before the injury, feeding just outside the right of way. When they were seen by the engineer, they were near the track and about four hundred yards distant from the trestle. The track was downgrade, and the engineer got his train under control and blew the cattle alarm whistle. The animals began running on the right of way and along the track, at first going through borrow pits. These borrow pits — that is, depressions formed by the taking or borrowing, of earth to build the railroad embankment — were from eight to fifteen feet in width, and were at the point where the animals were first seen shallow, but became deeper as they neared the trestle and the embankment was higher. After running in the pits or depressions for a distance, the animals got upon level ground and continued to run. Then they went on the track, and ran on down to the trestle, which the mare attempted to cross, *393and jumped or fell therefrom. The train was about two hundred yards from the animals when first noticed by the witnesses. The train slowed up, and was. brought to a stand some thirty or forty yards — say at least one hundred feet — from the trestle, and at least one hundred and twenty-five feet from where the mare went off the trestle. The right of way was not fenced. It appears from, the evidence that brush and logs from the clearing of the right of way several years prior were piled along the right of way. There was an opening about where the animals entered the right of way, and one or more openings along the way to the trestle. It is not shown that an'impassable obstruction was caused by the accumulation of the logs and brush. The borrow pits were separated one from the other by a strip of earth left level with the general surface over which the animals could have gone. The right of way was fifty feet wide on the side where the animals were running, and they could have gone out of the borrow pits on the side opposite to the roadway. From the right of way outside of the embankment it was only five feet to the water, or bottom of the creek or slough over which the trestle extended, and the bank was not entirely perpendicular.

The recovery in this case is based upon the theory that the injury resulted from the animal’s being frightened at the approaching train. But in order to recover it was incumbent up'on appellee to show that the injury was caused by the negligence of the company’s servants. Appellant has failed in this. The engineer was not'required to stop merely because he saw the animals near the track and running along it. He is only required to do what is reasonable and prudent under the circumstances. It is in evidence that the train was properly equipped and that the employees were competent. The train was brought under control, and actually brought to a stop, quite a distance from where the animal was injured. Considering all the facts and circumstances of this case, we do not see *394that the servant of appellant, the engineer, failed to do all that was required of him as a man of ordinary prudence. The peremptory instruction to find .for appellant should have been given.

Reversed, and judgment here for.appellant.

Reversed.

(dissenting).

This is the second appearance of this case in this court, the facts on each appeal being practically the same. 96 Miss. 195, 50 So. 628. On the former appeal one of the assignments of error was that the court below erred in granting the railroad company a peremptory instruction. A majority of the court declined to reverse the case because of the refusal of the court below to grant this instruction; but it was reversed because of an error in the granting of instructions to the plaintiff.

As I understand the case as made by the evidence for the plaintiff, this trestle from which the animal fell and was injured spanned a “slough” or “lake” in which there was water at the time. For a distance of at least six hundred yards north of this trestle there was a line of borrow pits, making practically a continuous excavation fifteen or twenty feet wide, containing water, but how much does not appear. These borrow pits began at a depth of about one foot and increased to the depth of about four feet at the trestle. The embankment at this distance north of the trestle was about one foot high, and increased in height to about three feet at the trestle. On the outer edge of the right of way was a practically continuous line of brush and logs, which had been placed there when the right of way was cut out, and along which bushes had grown up. In this line of logs and brush there were one or two openings through which the stock could pass. Plaintiff’s mare and colt were discovered by the defendant’s engineer on the right of way four hundred yards north of this trestle, and when the train was *395two hundred yards north of them, the train then being six hundred yards north of the trestle. A stock alarm was given, whereupon the animals became frightened and commenced to run down- the right of way ahead of the approaching train. They ran for a short distance down these borrow pits, then got upon the leval ground next to the embankment and ran down that for a short distance, until, in the language of one of the witnesses, “the ‘bar’ pits came so close” that they got upon the track and ran down the center thereof until they reached the trestle, when they ran into the trestle, and the mare fell off and was injured. The place at which they crossed to the center, of the track, and commenced to run down between the rails thereof, was about thirty or forty yards north of the trestle. The engineer of the train knew that this trestle was there; that the borrow pits and logs and brush, etc., extended along the track as hereinbefore set out. The train was running at the usual speed — according to one witness about twenty, and another twenty-five miles an hour. Its speed was not checked, and it gained on the animals as they ran. It was stopped, however, at the place where the animals went onto the track; that is, about thirty or forty yards north of the trestle. It was stopped suddenly, and its speed was not checked before that time, except in so far as it was necessarily checked in bringing the train to a stop, which stop was a sudden one, as stated by plaintiff’s witnesses, and was not made by gradually checking the speed of the train. In contradiction of this the defendant’s employees testified that the train was carefully handled, and that everything that could be was done in order to prevent the injury ; the speed of the train being checked and it brought fully under the control of the engineer as soon as the stock were discovered.

On this evidence I think the case was correctly submitted to the jury. On the evidence for the plaintiff it was for the jury to say whether or not the injury could *396have been avoided if the engineer, “paying regard to the known habits and instincts of animals to try to escape from the cul-de-sac (or what practically amounted thereto) in which they were found by him, had slackened” the speed of his train, and whether or not he in fact did so slacken its speed was a matter for the jury's determination, the evidence relative thereto being conflicting. The engineer should have remembered that, frightened and situated as they were, these animals were just as apt to attempt to cross the track, or to run down it, as they were to cross these borrow pits.