
    The Pittsburg, Cincinnati and St. Louis Railway Company v. Edmund D. Smith.
    Where the owner of land through which a railroad runs, agrees with the railroad company, for a valuable consideration, to build and keep up good and sufficient fences on both sides of the road through his lands, and fails to do so, and on account of the insufficiency of such fences his animals stray upon the track and are injured, he is not entitled to recover for such injury, although the insufficiency of the fences was caused by casualty and without negligence on his part, unless such injury is shown to have been intentional, or the result of gross carelessness on the part of the agents and servants of the company.
    Motion for leave to file a petition in error to the District Court of Union county.
    This is an action by the defendant in error against the plaintiffs in error, to recover damages for the killing of a horse of the defendant in error, by reason of the careless .and negligent management of a locomotive and train of •cars of the plaintiff' in error by its servants and agents, over that part of the line of their road which passes through the land of the defendant in error.
    
      On the 24th day of July, 1851, the defendant in error, by a contract in writing, granted to the plaintiffs in error the right of way, one hundred feet in width, for their road, through his land, on condition that the company should build cattle-guards at the places of ingress and egress, build a farm road-crossing, and “ pay for all of his stock destroyed by the running of the railroad when completed.”
    Under this contract the company took possession of the right of way through the land of the defendant in error, completed its road, and performed the conditions of the contract; but after the completion of the road—to wit, on the 7th day of December, 1853—a new contract was made between the parties, by the terms of which, for a valuable -consideration, the defendant in error agreed to build a good and sufficient fence on both sides of the company’s railway through his lands, and keep the same in good repair;
    It appears from the testimony in the case that at the time of the injury to the horse of the defendant in error, an opening had been made in the fence on one side of the road, through which the horse strayed on the track, and was killed by the train of the plaintiff in error. There is no testimony as to how or when the breach in the fence occurred, though the field in which it occurred was used by the defendant in error at the time as a pasture-lot for his cows and work-horses, and was visited every day by the defendant in error or some member of his family. Nor is there any testimony showing how the injury to the horse occurred, except that he was found on the line of the road with his' leg cut off. In the Court of Common Pleas the jury found a verdict in favor of the defendant in error, and after the overruling of a motion for a new trial, the District Court, on a petition in error filed therein, affirmed the judgment of the Court of Common Pleas.
    
      'Porter 8; Sterling, for the motion :
    Under the contract of Smith with the company to “ make and keep a good and sufficient fence,” the company was-only chargeable with gross carelessness. 4 Ohio St. 424; 1. Redfield on Railways, 488, 515 ; Sherman & Redfield, sees. 319, 463, 474; 14 Ohio St. 48. And if the fact he that the fence was thrown down by accident or casualty, without the fault of Smith, the plaintiff in error is not liable for an injury resulting from such insufficiency of the fence, unless the plaintiff in error had been guilty of gross carelessness.
    
      Carpenter § Pudney, contra,
    claimed that the two contracts in this case have no relation the one to the other, and therefore the breach of either one, by either party, -could in no wise affect the other contract.
   Rex, J.‘

The sole question in this case is, to determine the rights and duties of the parties under the contract of December 7, 1853.

The court below charged the jury that under this contract, it was the duty of the plaintiff to build fences and keep the same in repair, as provided in the contract, “ and if he failed to do so, he would be responsible for all damages arising from such failure.” In this charge, we think the court correctly stated the effect of the contract; but the court further charged the jury, that “if from accident or casualty, and without the fault of the plaintiff, the fence was thrown down so that his stock got on the road and was injured, the plaintiff would not be liable, but the defendant would be liable under the terms of the first contract.”

In this instruction we think there was error. The plaintiff, for a valuable consideration, having contracted to build .and keep the fence in repair, was bound to do so, and was not entitled to recover for injury to his horse resulting from the insufficiency of the fence, although such insufficiency was caused by accident or casualty, and without the fault of the plaintiff.

The duty of the plaintiff, under his contract, was not merely to exercise reasonable care in maintaining the fence; but to build it and keep it in repair.

The defendant had a right to rely upon the faithful performance, of the contract on the part of plaintiff, and was not liable for an injury to the plaintiff, resulting from the insufficiency of the fence, although such insufficiency was caused by accident or casualty, without proof showing that such injury was intentional, or the result of gross carelessness on the part of the servants and agents of the railroad company. The Cincinnati, Hamilton and Dayton Railroad Co. v. Watterson and Kirk, 4 Ohio St. 424.

The motion is granted, the judgments of the Court of Common Pleas and District Court reversed, and the cause •remanded to the Court of Common Pleas for further proceedings.

McIlvaine, C. J., Welch, White, and Gilmore, JJ., concurred. ,  