Defendant assigns for error in tbe main tbe refusal of tbe court below to grant motion for judgment as in case of nonsuit. We are of opinion that upon all tbe evidence, taken in tbe light most favorable to plaintiff, tbe motion should have been allowed.
Tbe liability of tbe owner of animals for permitting them to escape upon public highways, in case they do damage to travelers or others lawfully thereon, rests upon tbe question whether tbe keeper is guilty of negligence in permitting them to escape. In such case tbe same rule in regard to wbat is and wbat is not negligence obtains as ordinarily in other situations. It is tbe legal duty of a person having charge of animals to exercise ordinary care and tbe foresight of a prudent person in keeping them in restraint. Lloyd v. Bowen, 170 N. C., 216, 86 S. E., 797; 2 Am. Jur., 740, subject Animals, section 62.
In tbe present case there is no evidence tending to show that defendant failed in such duty.
Plaintiff contends, however, that it being unlawful to permit livestock to run at large in Mecklenburg County, tbe very fact that defendant’s mules were there running at large upon a public highway is sufficient in and of itself to establish a prima facie ease of negligence on tbe part of defendant. Tbe doctrine of res ipsa loquitur does not apply. And though tbe statute, C. S., 1849, upon which plaintiff relies, provides that "if any person shall allow bis livestock to run at large within tbe limits of any county, township or district in wbicb a stock law prevails or shall prevail pursuant to law, be shall be guilty of a misdemeanor, and fined not exceeding fifty dollars or imprisonment not exceeding thirty days,” it does not provide that tbe mere fact that livestock is at large *577raises a presumption that the owner permits same to run at large. Sueb a statute as tbis relating to allowing or permitting livestock to run at large “implies knowledge, consent, or willingness on the part of the owner that the animals be at large, or such negligent conduct as is equivalent thereto, but does not comprehend a case where, through some untoward circumstance, the owner is unable to watch and care for the animals in a particular instance, or where, notwithstanding the owner has taken precautions to restrain them, and is without fault or negligence, the animals escape from him. ...” 3 C. J. S., 1231. 3 C. J., 180.
In the instant case the evidence for plaintiff fails to show that the mules of defendant were at large wifh his knowledge and consent, or at his will, or that their escape was due to any negligence on his part. The only evidence in regard thereto appearing at the close of plaintiff’s evidence, other than the fact that the mules were at large, is the statement of plaintiff that defendant said “that he couldn’t help it (the mule) being-out and that he didn’t know that it was out.” Thus plaintiff’s evidence exculpates defendant of the allegation that he negligently permitted the mule to run at large. Defendant’s evidence merely enlarges upon and explains and corroborates the evidence of plaintiff.
In the light of the decision here made, it is unnecessary to consider the question of refusal to submit issue of contributory negligence, which is the only other assignment brought forward in brief filed by defendant.
The judgment below is
ClabKSON, J., dissents.