The opinion
Clark, J.
(concurring): While the letter of the statute must be construed by the spirit, the spirit must be gathered from the act itself. State v. Eaves, 106 N. C., 752 , and cases there cited. Hence, it would seem that the historical incidents cited in the argument do not apply, for in each of those cases the context plainly indicated the meaning of the phrases, which were ingeniously construed (or fictitiously supposed .to have been construed) in an entirely different sense.
A human being is endowed with intelligence, and hence, when he is struck while on-a railroad track, he may well be presumed to have been negligent, but no reason for such rule exists as to dumb brutes. Snowden v. Railroad, 95 N. C., 93 ; Carlton v. Railroad, 104 N. C., 365 . The act of the Legislature, therefore, as to “live stock” has placed the presumption of negligence upon the rational intelligence which *756 guided, and which might have restrained, perhaps, the instrument of destruction, and has not imputed negligence to the irrational victim who suffered. If the owner delays action for six months the presumption ceases, for in the lapse of time the company may cease to have in its employ the witnesses who might have rebutted the presumption. The words of the act are so plain that it would be “judicial legislation” to place a construction upon them other than the import of the words, in their ordinary sense, would justify. Any amendment or restriction of the nature suggested by the defendant would properly come from the Legislature, and not from the Court.
When it appeared by the admission of the defendant that the oxen had been killed within six months before suit brought by its engine running on its road, the statute raised the presumption of negligence. Piad nothing else appeared, the plaintiff would have been entitled of course to a verdict. Had it been further shown that the oxen were hitched up and driven by their owner on defendant’s track and were there killed, this would have been evidence of contributory negligeuce on the part of the plaintiff, which, if unexplained, would relieve the defendant from liability. But because the act of the owner, or teamster, in driving his animals on the track may be contributory negligence, the Courts are not authorized to hold that the statute throwing the presumption of negligence for the killing of live stock upon the railroad company shall not apply to cases in which it may be contended that the plaintiff was guilty of contributory negligence. Under the recent statute it is the duty of the defendant to allege and prove the contributory negligence. Chapter 33, Acts 1887.
In the supposed case stated, of a man riding his horse upon the track, the man has not the right-of-way and knows he has not, hence the presumption of negligence is against him, but as to the horse — while the conduct of the rider would *757 be evidence of contributory negligence, it does not therefore justify a “judicial” amendment of an unambiguous statute. The argument is, that the oxen being yoked to the wagon they were under the control of the driver, and hence, if they were killed in attempting in their terror and fright to escape there was no presumption of negligence on the part of the company. Anyone who has ever driven two yoke of oxen to a cart knows that when the engine with its glaring head-light suddenly emerged from the darkness round the curve in a few yards of them, and with the noise and rattle of a long train bore apparently straight down upon them, the oxen had not sufficient intelligence to stand steady and let the alarming apparition harmlessly graze by them and pass on. According to their nature they attempted flight, and in turning in the narrow pass some of them got upon the track and were killed. No driver, however intelligent, could have controlled them. At that moment they were no more under his control than if they had not been yoked to the wagon at all. Unless, therefore, the driver was guilty of contributory negligence in driving his oxen along the public road at that place at that time, there was nothing in the “situation” that could in justice (if the Courts had the power), construe the statute as not applicable “because the oxen were under his control.” The only person who could then have averted the catastrophe was he whose hand was, or should have been, upon the throttle-valve of the engine. If after turning the curve, it was too late, even for him to prevent the killing, it was due to his own negligence. He knew that at that point the public road ran by the side of the railroad track, and that on the other side of the public road rose the steep shoulder of the mountain so that a horse or oxen- attempting flight would in turning come upon the track. The train was out of time. It could not be expected that all travel on the public road would be indefinitely suspended. The plaintiff did *758 not drive his team upon the railroad track, but was driving along the public road. Had the whistle been blown in proper time the plaintiff would have been warned not to enter upon that part of the road and risk his own life as well as that of his oxen. In the absence of such signal he was justified in proceeding along the road. That the oxen were frightened, and in attempting flight got upon the track and were killed, is due to the “recklessness of the engineer, upon the facts as the jury found them to be. There seems no hardship in the application of the statute in this case, even could the Court consider that in construing the meaning of the unambiguous words used.