
    Railroad Company v. Newbrander.
    1. The Act of April 18, 1874, (71 O. L., 85) imposes upon a railroad company the duty of constructing and maintaining necessary cattle-guards • wherever its road crosses a highway. This statute may be construed as allowing exceptions, required by public necessity and convenience and the proper use of a station yard by the company.
    2. When the company is relieved from this requirement, for the above reasons, it is its duty to construct and maintain cattle-guards across its roadway and grounds at the first points from the highway which will not interfere with the necessities and convenience of the publie and the company.
    3. Whether this has been done is a question to be submitted to the jury in an action against the company for damages.
    Error to the District Court of Butler County.
    
      Thomas Millikin for plaintiff in error.
    
      MoKemy $ Andrews for defendant in error.
   Nash, J.

The plaintiff in error upon the 15th of November, 1877, owned and operated a railroad which extended from the north to the south across a highway from Monroe to Lesoudersville. There were no cattle-guards or other protection at the crossing of said railroad on the public highway". For a distance of twentyr-one hundred feet north of said highway, and for a less distance south thereof, the said railroad and the ground on either side thereof were used by said railroad company for a depot and station yard, called “Monroe Station.” In said yard, besides the main track, there were, north of the highway, a depot building and two side tracks, which side tracks extended across and to a considerable distance south of the highway. Said yard was necessarily uninclosed at the crossing of the highway. It was necessary for the public as well as the railroad company, in using said yard, in getting to and from the depot buildings, in loading and unloading cars, and in using the side tracks, that the yard at the crossing of the highway'- should be open and unobstructed by fences, cattle-guards, or other protections. The first cattle-guard north of the highway was located twenty-one hundred feet therefrom and answered the double purpose of a cattle-guard and culvert. The longest switch or side track, joined the main track four hundred and fifty feet south of the cattle-guard and culvert.

Upon the question as to whether all this four hundred and fifty feet was necessary for the railroad company in the use of its side track and switch with safety to its employés, the evidence was conflicting.

Between five and six o’clock on the morning of the 13th of November, 1877, four horses belonging to the defendant in error, on account of the absence of cattle-guards or other protection at the point where said railroad crossed the highway, entered upon said depot grounds and wandered north through the same, to a point at or near the cattle-guard. Here three were killed and one injured by a locomotive and train belonging to the railroad company and.approaching from the north. Said horses were not permitted by the defendant in error to run at large and had escaped from their enclosure during the night without fault upon his part.

It was a duty enjoined upon the railroad company by the Act of April 18, 1874, (71 O. L., 85) to construct and maintain necessary cattle guards at the point where its railroad crossed the highway. It was relieved from the obligation to perform this duty, only on the theory that the necessities of the public, of the employés of the railroad company and of the company, required that the depot grounds and yard at the crossing of the highway should remain open and unobstructed. Having been thus relieved from placing cattle-guards at the crossing, it was the duty of the railroad company to construct and maintain a cattle-guard at the first point north therefrom, which would not interfere with the necessities of the public, the employés of the company and the company. There having been conflicting evidence as to whether this had been done, it was not error in the court below to submit this question of fact to the jury. The form in which the trial court put this question to the jury certainly did no injustice to the railroad company.

Judgment affirmed.  