The opinion
Shepherd, J.
(dissenting): It sometimes occurs in the administration of justice, that a case is presented which, though in itself of but trifling moment, involves the enunciation of a principle of such great importance that the mind of the Judge may well be impressed with the consciousness that, in passing upon the particular question in controversy, a precedent is being established so comprehensive in its character and of such general application as to materially influence the ruling of the Court in future cases in which interests of far greater magnitude may be concerned.
It is under this sense of responsibility that I feel constrained to express my dissent from the decision of the Court in the present case. . No one, I trust, is more thoroughly convinced than the writer that the duty of the Judge is jus dicere non dare, and no one more heartily concurs with the great authors and jurists mentioned in the opinion in con *759 demning as “judicial legislation” that latitudinarianism in the construction of statutes which results in an undue extension or restriction of their plain and unmistakable terms.
It is believed, however, that the repetition of these general' expressions of disapproval of such a practice (in which it is-to be hoped all judicial minds concur) can afford us no aid in determining whether a particular construction of certain-words or phrases falls within their condemnation, since its-correctness or incorrectness is the very point to be decided.. They can, therefore, only legitimately serve as admonitions, to the Courts when exercising so grave and delicate a duty as interpreting the legislative will.
All will agree that, where a statute is expressed in clear and precise terms and is susceptible of but one meaning, the Courts are not at liberty “ to go elsewhere in search of conjectures in order to restrain or extinguish it” (Potter’s Dwar-ris, 143); neither are they at liberty (quotes Sedgwick, 310) to depart from the letter of the statute “when free from ambiguity and doubt.” But I have been unable to find any authority in support of the idea that this freedom from ambiguity and doubt is to be ascertained alone from the-strict letter of a part of the statute;. for, if such were the case, the qualifying words of the rule, as above stated, and universally recognized and acted upon, would be meaningless, and the principle of construction would be simply that of literal comprehension or exclusion. If the latter be the rule, it would amount to an abdication of one of the most important functions of the judiciary at the feet of the lexicographer, and the noble science of judicial interpretation as developed and illustrated by Yattel, Leiber, Do mat, Sedg-wick, Dwarris, Potter and other eminent writers would no longer find a place in our jurisprudence.
That such cannot be the proper rule is manifest from the injustice and absurdities that would follow, and these may be illustrated by reference to some of the examples to be *760 found in the books. The surgeon “who opened the vein of a person that fell down in the street with a fit ” was held not to be within the law which enacted “that whoever drew blood in the streets should be punished with the utmost severity” (1 Black. Com., 61), and this was not because he thereby saved a man’s life, but because the law did not “extend” to him. So the law of Edward III, which forbade all ecclesiastical persons from purchasing provisions at Rome, was considered not to extend to the purchase of “grain or other victuals,” because “the statute was made to repress the usurpations of the Papal See, and that the nominations to benefices by the Pope were called provisions.” 1 Black. Corn., supra.
As illustrative of the principle of literal exclusion or restriction, reference may be made to Mohammed, “the emperor of the Turks,” at the taking of Negropont, where he promised a man to spare his head, but caused him to be cut in two through the middle of the body. So when Tamerlane promised upon the surrender of a city that no blood should be shed, he considered that he had not violated the terms of the treaty by causing all of the garrison to be buried alive. Vattel Liv., ch. 11, 17.
It would seem hardly necessary to resort to such illustrations to demonstrate the utter impracticability and injustice of literal interpretation, and I have only done so because it seems to have had a controlling influence in the decision of this case.
So far from such a rule finding support in the books it is universally condemned, and this disapproval is fittingly declared in Eyston v. Studd, Plow., 467, “ that a man ought not to rest on the letter only, nam qui haeret in litera, haeret in cortice, but he ought to rely upon the sense which is the kernel and the fruit, whereas the letter is but the shell.”
It is manifest, therefore, that we are not blindly to follow the letter of the statute because by construction its general *761 language may be made to include every subject of a class under all conditions and circumstances, and it is also clear that the literal interpretation of the legislative will is an unsafe guide in determining whether the language is so free from ambiguity as to shut out all interpretation whatever. “ The best rule of interpretation to be adopted by the Courts is to ascertain the meaning of the Legislature from the words used in a statute and the subject matter to which it relates, and to restrain its operation within narrower limits than its words import, if satisfied that the literal meaning would extend it to cases which the Legislature never designed to include.” Brewer v. Blonger, 14 Peters, 178 ; Potter’s Dwarris, 183. “Scire legés non hoc est verba earvm tenere sed vim ac potestatem, and the reason and intention of the law-giver will control the strict letter of the law, when the latter would lead to palpable injustice, contradiction and. absurdity. * * * When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt and. the objects and the remedy in view, and the intention is to be taken or presumed according to what is consonant to reason and good discretion.” 1 Kent. Com., 462; Potter’s Dwarris, 209, note.
Disregarding, then, the idea that literal comprehension is the test of non-ambiguity, I will now consider whether the language of section 2326 of The Code has such “ a definite signification in common use, affixed to it by custom,” that it necessarily includes within its meaning h'orses, mules and oxen when hitched to vehicles and under the guidance and control of an intelligent human will. Are the words so very plain in the connection in which they are used, that all inquiry into their object, reason and spirit is inhibited, and that we are to abandon the well-settled rules of construction and apply them with an utter disregard of the absurdities and incongruities to which their literal interpre *762 tation may lead? This, it seems to me, would be doing-injustice to the Legislature, whose will we are all so anxious to interpret and execute. The language under consideration is to be found in chapter 9 of The Code. This chapter is entitled “ Cattle and other live stock,” and contains various provisions such as to the branding of cattle, driving the same in certain seasons from other States into this State and from one part of the State to another; prohibiting distempered cattle from going at large and other general regulations, no one of which in the slightest degree relating to such animals when hitched to vehicles or otherwise in actual use. The general scope and meaning of the entire chapter excludes this idea, and the fact that we find the language under construction so associated reflects, it seems to me, a strong light upon the true sense in which it is employed. Nosdtur a sociis.
Again, in all the works on railroads and negligence it will be found that the words “cattle and live stock” are exclusively used as applicable to animals straying on the road-bed, and not under the direction and control of the owner. Take for example, Wood’s Railway Law, vol. 3, ch. 28, entitled “Injuries to Live Stock,” and there cannot be found, either in the text or in the multitude of' cases cited in the notes, the least suggestion that the words “ live stock ” or “cattle” cover such a case as ours. The idea of confounding straying stock with that which is hitched and under the control of an intelligent mind, has never before, I think, been intimated in the law of negligence; and in none of the States where statutes similar to ours have been passed can there be found a case where the law has ever been so construed. All of- the law of negligence, statutory or otherwise, as to injuries to live stock seems to relate to stock when straying, and to recognize the important distinction to which I have adverted. It would be a strange anomaly in the law of negligence if, in a suit for the killing of a horse and its *763 rider, the burden of proof should be in favor of the former and against the latter. The same rule, under the construction contended for, would apply to the case of a live pig which is being carried to market on the shoulder of its owner. In a single action for the recovery of damages for injuries to both, occasioned by the same accident, we would have two different rules as to the onus probandi, with the advantage most decidedly on the side of the pig, thus constituting in the history of this species of the animal kingdom the single exception to its exclusion from all favorable consideration whatever, as indicated by its proverbial dependence upon its own peculiar exertions for a livelihood.
Another objection is that under such a rule a person might purposely drive his horse on a railroad track and have him killed, and then insist that the presumption of negligence arose, and that it devolved upon the railroad to rebut it.
Again, it cannot, I think, be reasonably insisted that animals in the actual use of the owner are generally spoken of as "cattle ” or “live stock.” “Words are only designed to express the thoughts; thus, the true signification of an expression in common use is the true idea which custom has affixed to that expression.” Potter's Dwarris, 127.
When one is driving his horse, or a lady is riding her pony, is it customary to say that the man is driving one of his “cattle,” or that the lady is riding one of her “live stock”; and is this the “expression” which “custom has affixed,” and which we commonly use in such instances? The mere statement of the question, it seems to me, furnishes its own answer.
These considerations induce me to believe that the words under examination do not apply to cases like the present. Certainly their meaning is not so “ explicit ” as to shut out all inquiry into the reason and spirit of the law. As I have said, “the most universal and effectual way of discovering the true meaning of a law, when the words *764 are dubious, is by considering the reason and spirit of it, or the cause which moved the Legislature to enact it.” Black., vol. 1, 61. Acting upon this well established principle, this Court has unequivocally declared the true spirit of the statute and the defects which it was intended to remedy. The late Chief Justice, in Doggett v. Railroad, 81 N. C., 459 , in giving the history and reason of the statute, said, “where injury to stock straying off is done by trains running at night as well as by day, and known only to defendant’s employees, it was almost an impossible requirement” that the plaintiff should prove the negligence as a part of his case. “The owner would not know how, when or by whom the injury was done, while the servants of the road would possess full knowledge of the facts. Hence, the General Assembly enacted section 2326 of The Code, * * * thus shifting the burden of proof from the plaintiff to the defendant, and requiring the latter to show the circumstances, and repel the legal presumption.” In Durham v. Railroad, 82 N. C., 354 , the Court, further sustaining the same view, remarked: “The responsibility of railroad companies for injuries to stock straying upon their tracks, and the cax-e and diligence required in the management of running trains, have frequently been before the Court, and were fully discussed in Doggett v. Railroad, 81 N. C., 459 .” It seems to me that this clear and emphatic construction of the law, sustained as it is by reason and the current of authority, should not be disturbed. This construction gives full effect to all of the purposes which the Legislature had in view, and I am opposed, by what I consider a strained interpretation of the statute, to go beyond these purposes and introduce anomalies which were never even remotely contemplated by the law-makers. To “ cavil about the words in subversion of the plain intent of the parties is a malice against justice and the nurse of injustice.” Plowd., 161. “ Construction must be made in suppression of the mischief and in advancement of the remedy.” Cook Lit., 381, 386.
*765 Says Dillard, J., in Burgwyn v. Whitfield, 81 N. C., 265 : “ In construing a statute, it is laid down as a rule by which Courts ought to be guided, to look at the words and construe them in the ordinary sense, if such construction would not lead to absurdity or manifest injustice, but if it would, then they ought to vary and modify the words so used, so as to avoid that which it certainly could not have been the intention of the Legislature should be done.” Broom’s Leg. Maxima, 552.
The particular point under discussion in this case arises upon the instruction of the Court (the defendant having asked a contrary instruction), that, “ it being admitted that defendant’s engine killed the cattle, and the suit having been brought within six months, the statute raised a presumption of negligence, and the burden was on the defendant to rebut the statutory presumption.” It will be noted that the plaintiff’s testimony showed that the animals injured were hitched to a wagon and being driven by the plaintiff, and there was no dispute whatever as to these facts.
In view of the well-established rules of construction, most pointedly illustrated by the foregoing facts, I am well satisfied that we were in error in holding that the foregoing instruction was correct. It is because of what I conceive to be an erroneous statement and application of these most important general rules that I have thought proper to state my views at such length.
I think that the petition to rehear should be granted.
Per Curiam. Petition dismissed.