The opinion of the Court was delivered by

-It is difficult to prescribe any fixed and general rule, which can apply in all cases where it is sought to make a railroad company liable in damages by reason of the loss of property by the negligence of their agents in running their train. The time, the place, the character of the property, must all be considered as elements through which the result is to be determined. To these there must be added such other incidents as may be developed by the evidence — the whole to be regarded and weighed by the jury, in determining whether such negligence is shown as must make the company liable. The same rule should not apply where a horse suddenly jumps upon the track, and where he is observed upon it by the engineer in full time to afford him opportunity to slacken his speed, so as to avoid contact with him. So, too, greater caution would be required where there is no mode of egress or escape from the track by an animal upon it, by reason of embankments on both sides, than where public or used cross-roads over the track, or a level opening on both sides of it, extend the means of escaping out of reach of all danger.

The first ground of error assigned is so much of the instruction of the Circuit Judge to the jury as charged, “That the culvert had nothing to do with the question of negligence, and that they need not embarrass themselves with considering it.” The right of the company to establish open culverts was not questioned. In*57deed, from the evidence, it is clear that it was proper and prudent that the culvert, at the point indicated, should be open. When the Judge charged “that if, from the time the engineer was notified, by the fireman, of the position of the horse, the engineer was guilty of any negligence of duty, they must find for the plaintiff.” It appears that he left the fact of negligence entirely to their decision. If, as the testimony shows, there was a way used by persons on horseback, which the horse in question might have taken, “ and not a particle of difficulty in getting off at the last street,” laid down in the diagram, we do not think that the case should be sent back, because the presiding Judge said to the jury, “ they need not embarrass themselves about the culvert.” If there had been no possible way for the animal, after being discovered, from getting off the track without encountering the culvert, all reference to the culvert should not have been disregarded, but when it appeared by the testimony that, as soon as the horse was seen, the speed was slackened and collision avoided, it was left to the jury to say whether there was any neglect of duty on the part of the engineer. We do not regard the charge, not to consider the culvert, as amounting to such error in law as would justify us, looking to the whole case, to remand it for a new trial.

The second exception we do not regard as well taken. If the injury had occurred at the station, then it would have been proper to consider the speed of the train at the time, so that the jury might determine whether the loss was imputable to the fast rate at which it was running. The speed might have been slackened at the station, and yet the same consequence might have followed ; for, after passing it, a higher force of steam might have been employed before the horse was seen. We think the charge was conformable to what was said in Murray vs. The South Carolina Railroad Company, 10 Rich., 232: “ That from the time the horse could first have been seen, until he was killed, all proper means and appliances were used to avoid him, and used in vain, a case of accident would have been made out.”

The motion must be dismissed.