Orcutt

I concur in the judgment, and in the conclusions reached by the opinion; but I do not concur in the dictum that when the facts are undisputed, negligence is a question of law. The correct rule is laid down in Fernandes v. Sacramento City R. R. Co., 52 Cal. 45 , where the subject is fully discussed, and the *300 conclusion there reached fortified and sustained by reason and authority. (See also Payne v. R. R. Co., 83 N. Y. 574 , and cases there cited.) If the rule as declared in the dictum above stated has ever been regarded as a law, it has long ago been rejected as unsound by jurists and courts. In the case under consideration the negliwas too remote, as is clearly shown in the opinion of the learned commissioner.

This action was brought by the plaintiff to recover damages for a mare killed and a colt injured by the locomotive and cars of the defendant corporation» which locomotive and cars, it is alleged in the complaint, were so negligently managed and run over that portion of defendant’s railway which passes through the plaintiff’s land, and were driven at such undue speed, and without ringing any bell or sounding any whistle or other alarm, in approaching the crossing on said land as to run against the mare and colt, then casually, and without any fault of plaintiff, passing across the track at said crossing.

*295 Judgment for the plaintiff was entered upon a verdict in his favor. From the judgment, and an order denying a new trial, the defendant brings this appeal.

The lane which formed the crossing with defendant’s railway, where the engine ran against the animals, is an open one used by the public, and extends from plaintiff’s house to a public'highway just beyond the railway, and crosses the latter at right angles, and at about one half of a mile from plaintiff’s house. The railway is inclosed upon the sides with substantial fences, and at the crossing with cattle-guards.

On the…