¶1Eugene Patton obtained verdict _ and judgment against the Louisville & Nashville Railroad Company for $G5 for killing a mule. The company appealed in error.
¶2The plaintiff’s mule was killed by a moving train of the defendant on its track in a held belonging to one of the plaintiff’s neighbors. The held contained fifteen acres, and seems to have been a parallelogram, almost square. The defendant’s track passed through the field from end to end, and was not inclosed otherwise than by the fence along the outer limits of the field.
¶3The trial Judge correctly instructed the jury that the defendant was liable for the value of the mule, if it was killed by one of its moving trains upon an unfenced track, unless the killing *42was tbe result of a willful plan or of contributory negligence on tbe part of tbe plaintiff; and that tbe fence of tbe owner around tbe field, however good, would not excuse tbe railroad company from liability on account of its failure to inclose its track separately by a lawful fence. Obviously, the owner’s fence inclosing bis field could not, in legal contemplation, be considered an inclosure of the railroad track. Tbe statute (Acts 1891, Ob. 101) contemplates a lawful fence along each side of tbe railroad, whether in inclosed fields or open lands, tbe object being to shut live stock out from the track in inclosed and un-inclosed lands along the right of way.
¶4Tbe jury was erroneously instructed that it was also incumbent on tbe defendant, in order to avoid liability, to show that its agents bad sounded tbe alarm whistle and observed tbe other precautions prescribed by Sub-section 4 of Section 1514 of Shannon’s Code. The duty of observing those precautions, as such, was superseded by the fencing act as to all parts (Railroad v. House, 96 Tenn., 552) of the line of road to which that, act applied. Railroad v. Russell, 92 Tenn., 108; Railroad v. Tiernan, 102 Tenn., 708. But this error was a harmless one, and hence not reversible, since it was admitted that the defendant had not fenced its track at the place where the mule was killed.
¶5The failure to fence made the defendant’s lia*43bility absolute in tbe absence of a finding of fault on tbe part of tbe plaintiff, and tbe strictest observance of tbe precautions mentioned, or tbe failure to observe them at all, could in no way affect that liability. Railroad v. Stonecipher, 95 Tenn., 313; Railroad v. Russell, 92 Tenn., 108; Railroads v. Crider, 91 Tenn., 489.
¶6With or without tbe latter instruction the result would have been tbe same, as tbe track was not fenced.
¶7The verdict refutes the contention of tbe company that the plaintiff placed, or caused tbe mule to be placed on tbe track with a view of having it killed; and that verdict having proof to sustain it, will not be disturbed in this Court.
¶8Affirmed.