that it was dangerous to persons who might accidentally deviate or stray from the highways or intentionally cross the waste from one to the other, and it was held, as the danger was not alleged to the persons passing along either highway, but to persons who might accidentally deviate or stray from or intentionally leave the ways, that no duty to guard the quarry appeared, and therefore that no liability for the injury complained of existed.

The case of Binks v. South Yorkshire Ry. Co., 3 Best & S. 242, is perhaps as nearly like the case before us as any adjudication that can be found. There a canal was constructed beside an ancient footway, at a distance of about twenty-four feet from it, with a towing-path on the bank of the canal and an intermediate space between that and the footpath, which intermediate space, through laxity on the part of the defendant company, was generally walked over by the public and had become obliterated as a dividing line; yet it was held that the proximity of the canal to the footpath was not such as imposed upon the defendant company a duty to guard it or a liability for accident to one who strayed from the path.

The definition of proximity which is stated and illustrated in these cases is accepted, without exception, I think, by all the cases which have acquiesced in the doctrine invoked by the plaintiff in error.

It is deemed that the case considered is clearly within these adjudications. The railway cut was twenty feet or more from 420 the street, and was separated therefrom not only by five or more feet of intervening land belonging to the defendant, but also by a strip of land fifteen feet wide, which belonged to some third person. All this land was above the crown of the street and presented enough barrier to progress toward the railway cut to plainly mark the departure from the highway and excite to cau

It is deemed that the cut did not substantially adjoin the highway, so that by false step or in surprise at the sudden termination of the highway the plaintiff could have been thrown into it, but, on the contrary, that the case made is one in which, in the dark at night, the defendant wandered from the highway over the land of the third person into the land of the defendant, and from thence into the railroad cut. We think that the de fendant is not liable for the injury consequent upon the plaintiff's accident, and consider that the jury was properly instructed. Let the judgment be affirmed.

HIGHWAYS-DANGEROUS EXCAVATIONS AT A DISTANCE. An owner of land is under no obligation to strangers to put guards.

around excavations made by him unless they are so near a highway as to be dangerous, under ordinary circumstances, to persons passing along the way, and using ordinary care to keep upon the proper path: Note to Moran v. Pullmau Palace Car Co., 56 Am. St. Rep. 549; notes to Bedell v. Berkey, 15 Am. St. Rep. 374; McIntire v. Roberts, 14 Am. St. Rep. 435. As a general rule, in the absence of special circumstances, if a person traveling on a highway deviates therefrom and falls into a pit or excavation on the adjacent land, the owner of the land is not liable: Beck v. Carter, 68 N. Y. 283; 23 Am. Rep. 175. An owner of land making an excavation within a few feet of a publie street is not liable for an injury caused by a person getting off the line of the street in the night-time and falling into it: Howland v. Vincent, 10 Met. 371; 43 Am. Dec. 442. A city is not liable where, in order to reach the place of danger, the party injured must become an intruder or trespasser upon the premises of another: Note to Moran v. Pullman Palace Car Co., 56 Am. St. Rep. 549. As to liability for injuries occasioned from excavations made within a certain number of feet from the highway, see monographic note to Sparhawk v. Salem, 79 Am. Dec. 702-705. See, also, the note to Beck v. Carter, 23 Am. Rep. 183, 184.

CASE V. CENTRAL RAILROAD COMPANY.

[59 NEW JERSEY LAW, 471.]

NONSUIT FOR FAILURE OF PROOF-WHEN PROPER.-A nonsuit is not erroneous where the plaintiff fails to prove the cause of action alleged in his declaration, but proves a different cause of action, and no motion is made to change the declaration.

RAILROADS-KILLING OF STOCK-OWNER'S CONTRIB UTORY NEGLIGENCE.-Every man is bound, at his peril, to keep his stock on his own close, and to prevent them from going onto that of his neighbor. Hence, if one allows his horses to break out of their pasture lot, and to stray upon a railroad track, where they are killed by a locomotive, the owner's contributory negligence will bar a recovery for their loss, even if they were killed through the negligence of the company's servants.

Richard S. Kuhl, for the plaintiff in error.

George H. Large, for the defendant in error.

472 DIXON, J. The declaration in this case charged that "the defendant willfully and wantonly drove its locomotive engine and cars" against several horses belonging to the plaintiff and killed them, and therefore the plaintiff claimed damages from the defendant. Upon the trial, the plaintiff proved that the horses had broken through the fence between his pasture lot and the highway, had strayed along the highway to the defendant's railroad, and there, while wandering upon the track several hundred feet from the highway crossing, had been killed. At the close of the plaintiff's evidence the trial justice ordered that a nonsuit be entered, and upon this judgment error is assigned.

In more than one aspect of the case, this judgment can be justified.

1. The testimony did not present the slightest indication that the defendant or its servants had willfully or wantonly driven the engine against the horses, nor does the plaintiff now contend that any fault, beyond a lack of ordinary care on the part of the engine driver, was shown. Manifestly, such proof did not establish the alleged cause of action, and, in the absence of an application to change the narratio, a nonsuit was not erroneous.

2. But if the declaration had charged that the horses were killed through the defendant's negligence, still the nonsuit would have been proper.

The horses were trespassing upon the defendant's track withcut any shadow of right, and the plaintiff did not attempt to prove that, for this trespass, the defendant was in fault under either the common law or any statute. The authorities are not entirely agreed whether, in such circumstances 473 the defendant owed to the plaintiff the duty of exercising ordinary care with respect to the horses, or only the duty of abstaining from willful injury. But if it be conceded that, prima facie, the defendant owed the larger duty of ordinary care, yet, as it appears that the animals came upon the track through the fault of the plaintiff, his claim against the defendant was legally defeated by his own contributory negligence, for, "according to the principles of the common law, every man at his peril is bound to keep his cattle on his own close, and prevent them from going on to that of his neighbor": Coxe v. Robbins, 9 N. J. L. 384; Chambers v. Matthews, 18 N. J. L. 368. It was a natural and proximate consequence of the plaintiff's failure to discharge this duty that the horses should have strayed into the highway and thence upon the track, and there meet with injury from passing trains. Such a fault precluded recovery, even though the negligence of the defendant's servants helped to cause the accident: Vandegrift v. Rediker, 22 N. J. L. 185; 51 Am. Dec. 262; Price v. New Jersey R. R. etc. Co., 31 N. J. L. 229.

3. But, lastly, the existence of negligence on the part of the defendant's servants was negatived by the testimony. The plaintiff called the engineer as a witness, and he swore that, when the animals were discovered upon the track, the alarm whistle was sounded, the engine was reversed, the Westinghouse brake was applied, and the train was stopped as soon as possible. Against this there was no contradictory evidence.

The judgment of nonsuit should be affirmed.

NONSUIT MAY BE GRANTED where there is no proof to support the issue: Tison v. Yawn, 15 Ga. 491; 60 Am. Dec. 708.

RAILROADS-KILLING OF STOCK-OWNER'S NEGLIGENCE. An owner of stock is bound, at his peril, to take care of them, and, if he suffers them to escape and they stray upon a railroad track, and are killed, the owner cannot recover damages therefor, unless the injury was gratuitously done: Tonawanda R. R. Co. v. Munger, 5 Denio, 255; 49 Am. Dec. 239; Vandegrift v. Rediker, 22 N. J. L. 185; 51 Am. Dec. 262; Railroad Co. v. Skinner, 19 Pa. St. 298; 57 Am. Dec. 654; Eames v. Salem etc. R. R. Co., 98 Mass. 560; 96 Am. Dec. 676, and note: Maynard v. Boston etc. R. R., 115 Mass. 458; 15 Am. Rep. 119. Compare monographic notes to Tonawanda R. R. Co. v. Munger, 49 Am. Dec. 248-273; Savannah etc. Ry. Co. v. Geiger, 58 Am. Rep. 703-707, discussing liability for injuries to trespassing animals.

GENZ V. STATE.

[59 NEW JERSEY LAW, 488.]

CRIMINAL LAW-INSANITY AS A DEFENSE-HOMICIDE. Insanity is not available as a defense to an indictment for murder, if the accused, at the time of the killing, was capable of distinguishing between right and wrong, with respect to that act, and was conscious that the act was one which he ought not to have done, although he might have been impelled by an irresistible impulse to do it

HOMICIDE-UNCONTROLLABLE IMPULSE.-An impulse to kill is not irresistible where it is not controlled so long as the weapon of death is directed against another, but instantly ceases when the slayer turns it against himself.

APPEAL-CRIMINAL LAW-EVIDENCE ILLEGALLY ADMITTED-REVERSAL OF JUDGMENT.-The admission of illegal testimony, in a criminal case, is no ground for reversal of judgment, where it plainly appears that it could not have injuriously affected the defendant on the merits of the case.

Gilbert Collins and William S. Stuhr, for the plaintiff in error. Charles H. Winfield, prosecutor of the pleas, for the defendant in error.

489 GUMMERE, J. The plaintiff in error was indicted by the grand jury of the county of Hudson for the crime of murder, in willfully, deliberately, and premeditatedly killing one Clara Arnim, on Tuesday, the twenty-eighth day of August, 1894. Being tried upon that indictment, he was found guilty, by the verdict of a jury, of murder of the first degree. The judgment entered upon that verdict, and all the proceedings had upon the trial, have been removed, by writ of error, into this court, and it becomes our duty, under the supplement of May 9, 1894, to the "act regulating proceedings in criminal cases" (Gen. Stats., sec. 170, p. 1154), to review the whole of such proceedings in order that we may be satisfied that the plaintiff in error has not suffered

manifest wrong or injury either by the rejection of testimony, or in the charge made to the jury, or in the denial of any matter by the trial court which was a matter of discretion, or upon the evidence adduced upon the trial.

It was admitted at the trial that Clara Arnim, who was the mistress of the plaintiff in error, came to her death at his hands. His defense was that he was insane at the time when he committed the act, and the principal injury which it is alleged on his behalf that he suffered, at the trial, was the failure of the court to correctly charge the jury on the subject of insanity as a defense. The instruction of the court to the jury on this point was as follows, viz: That the defense of insanity is that the mind of the prisoner was so impaired and diseased that, at the time of the commission of the act of killing, he was not capable of distinguishing the nature and quality of the act done by him; that he was then incapable, by reason of mental disease or impairment of 490 his mind, to conceive the intent to kill the deceased; that at that time he was incapable of distinguishing between right and wrong with respect to that act; that if he was in this state of mind, in the eye of the law he was insane; that the burden of proof, in making out the defense of insanity, rests upon the prisoner; that he is presumed to be sane, and that when he sets up the defense of insanity he must make out such defense by sufficient proof-such proof as would satisfy the jury that he was mentally incapable of understanding the nature and quality of his act, or incapable of understanding whether his act of killing was right or wrong; that if the jury should find the prisoner was, by reason of any disease of the mind at the time of the commission of the act of killing, incapable of distinguishing between right and wrong in the doing of the act, it would be their duty to acquit him of any degree of murder.

It is insisted, on behalf of the plaintiff in error, that this instruction was not a correct exposition of the law of insanity as a defense in criminal cases, and that the court should have charg ed the jury that, if they believed from the evidence that the prisoner was mentally diseased, and, being in that condition of mind, was forced by an irresistible impulse to take the life of the deceased, it was their duty to acquit him.

Whether or not the true test of responsibility for criminal acts, in cases of alleged insanity, is the ability to distinguish right from wrong, has never been considered or determined in this court; but, ever since the charge of the court to the jury in the case of State v. Spencer, 21 N. J. L. 196, it has been accepted as the law of this state that if the accused, at the time of committing the