
    Cleveland and Pittsburg Railroad Company v. William McConnell.
    The duty imposed upon railroad companies to fence their roads, by the act of March 25,1859 (S. & C. 331), and the amendments thereto, requires the construction and maintenance of such fences within the limits of cities and villages where they do not obstruct streets, highways, or other public grounds.
    Motion for leave to file a petition in error to the District •Court of Jefferson county.
    In. the Court of Common Pleas, McConnell, plaintiff, recovered a judgment against the Cleveland and Pittsburg Railroad Company for the value of a horse belonging to the plaintiff, alleged to have been killed by a train on defendant’s road, through the negligence of the defendant.
    Among other things, it was alleged that the injury was caused by the neglect of the defendant to maintain fences along the sides of its road as required by statute.
    On the trial to a jury, testimony was offered tending to prove that the horse was killed by a train of defendant’s cars at a point within the limits of the village of Hammondsville. One witness testified that the place where the animal was killed was “ about the public part of the town —in the heart of the town.” It was also shown that the railroad was not fenced on either side at the place where the animal went on the track and was killed.
    The court was requested to charge the jury “ that the defendant was not liable in this action for want of having constructed fences or for want of cattle-guards, if the accident occurred within the town of Hammondsville.” The court refused to so charge, but did charge “ that the statute of Ohio made it the duty of railroad companies to construct fences and cattle-guards as well iii towns and cities as in the country, and therefore it could make no difference whether the failure to fence occurred in the town of Hammondsville or elsewhere; that if they found the animal got on the track and was killed for want of fences or cattle-guards, and they further found the plaintiff was not guilty of negligence, their verdict should be for the plaintiff.” To the refusal to charge as requested, and to the charge as given, the defendant excepted.
    On error, the District Court affirmed the judgment below, and this motion is made with a view to obtain a reversal of the judgment of affirmance, and also the original judgment.
    
      J. Dunbar, for the motion.
    
      John Me Clave, contra.
   Bv the Court.

There is no error in this record. Neither the instruction refused, nor the one given, refers in terms or by implication to a railroad constructed within .or upon a public street, highway, or other public ground. The statute of March 25, 1859 (S. & C. 331), and the amendments thereto, require railroad companies to construct and maintain fences on both sides of their railroads. Aud while these statutes must be construed in the light of other statutes providing against the obstruction of streets and highways, etc., the latter do not l-elieve railroad companies from the duty of constructing and maintaining fences on both sides of their roads within the limits of cities and villages, where such fences do not obstruct public grounds.

It is true that one witness on the trial below testified that the place where the animal was killed was “ about the pub-lie place in the town—in the heart of the town.” We understand this language as locating the occurrence near the business part of the town, but not upon the public street. It is not anywhere in the record alleged to have taken place upon a street or highway, nor is it so claimed by counsel in argument. Assuming, therefore, that the plaintiffs horse was killed upon the track of defendant’s road at a point within the limits of the town, but also within the-limits of private property, the charge of the court, when applied to the case before it, was not erroneous.

Motion overruled.  