
    Railway Co. v. Smith.
    1. Under the act oí April 18, 1874 (71 Ohia. L. 85), a railroad company, which has neglected to keep a fence at the side of its track in sufficient repair, is liable to the owner of live stock injured by reason of such neglect; notwithstanding the fact that the owner pastured such live stock on adjacent lands with knowledge of the insufficiency of the fence.
    2. By the terms of the statute, the duty of maintaining the fence in sufficient repair is imposed upon the company, and it cannot escape responsibility by showing that it had no notice of the actual condition of the fence.
    Error to the District Court of Greene county.
    William Smith brought an action in the common pleas court of Greene county, against the Pittsburgh, Cincinnati & St. Louis Railway Company, to recover damages for the negligent killing of his horse. He alleged that defendant was by law bound to construct and maintain a good and sufficient fence on both sides of its railroad upcm and across the lands of plaintiff and to keep the same in good repair, sufficient to prevent horses or cattle from endangering themselves by getting on the track; but that instead of so doing, defendant allowed the fence to become dilapidated, by reason of which the horse was enabled to stray upon the railroad track and was killed, without fault on plaintiff’s part. Defendant denied that the fence was in bad condition, and that the horse was killed through any negligence on its part. At the trial the court was asked to charge the jury:
    “ 1. If you find that defendant was bound to maintain a good and sufficient fence along the line of its road at the point where the horse got out of plaintiff’s enclosure, and to keep said fence in repair, then if you also find that with the knowledge of the plaintiff the fence was out of repair and he gave no notice to the agent of the defendant for receiving and shipping freight at the station on the line of its road nearest the place where said fence was out of repair, that said fence or a portion thereof, on the line of its said road was ont of repair, stating where, how, and the probable cost of repairing the same, twenty-four hours before the alleged injury, and did not repair the fence himself, and by reason of the defective condition of the fence the horse of the plaintiff got upon the track and was killed without carelessness or negligence of the agents of the defendant in operating the train, the plaintiff cannot recover.”
    Which was refused.
    “ 2. If you find that the horse was discovered as soon as he reasonably could have been, and the whistle was blown, and the brakes applied, and the train could not probably have been checked, before striking the horse, the plaintiff cannot recover, though the train was not checked.”
    Which was refused.
    “ 3. If you find that the horse, though seen by the engineer, was running upon the track, if he left it and continued to run, not near enough to have been in danger, and the whistle was blown and the horse returning to the track, the brakes were applied and the train was checked, but could not probably then have been chocked before the horse was struck by the train, the plaintiff cannot recover.”
    Which was refused as asked, but was given with the addition, “ on the ground of the negligence or carelessness of the defendant in running the train.”
    4. If the horse, though seen by the engineer, was running at the side of the track, not near enough to have been in danger, and the whistle was blown, but the train could not probably have been checked after he got upon the track before he jumped into the bridge, or was struck by the train, the defendant is not liable.”
    Which was refused as asked, but was given with the addition, “on the ground of the negligence or carelessness of , the defendant in running the train.”
    
      The court thereupon charged the jury in substance that, the company being bound to maintain a sufficient fence, the plaintiff had a right to rely on this, and to turn his horse into the inclosure ; and if he escaped therefrom by reason of the insufficiency of the fence and went upon the track and was killed, the company would be liable.
    The jury found for the plaintiff and judgment was rendered upon the verdict. This judgment was affirmed in the district court.
    
      Gibadles Rarlmgton, for plaintiff in error.
    
      Gatoh c& Wilson, for defendant in error.
   Lon&wortju, J.

The act of April 18,1874 (71 Ohio L. 85), imposes upon railway companies the duty of fencing their roads and keeping the fences in repair. In case of default it gives to the land-owner the right to erect or repair the fence himself, after notice to the company, and to recover the cost from the company. It further provides :—

“And every such railroad company shall be liable for all damages sustained in person or property in any manner by reason of the want or insufficiency of such fence, &c., or any carelessness or neglect of said company, their agent or agents in constructing or keeping the same in repair.”

By the terms of the act no duty is imposed upon the land owner; he is invested simply with a right or privilege which he may or may not exercise atjiis election; the duty is upon the company. To hold that where this duty is neglected the land-owner must take the risk of pasturing his stock withoirt the protection of a sufficient fence is simply to nullify the terms of the statute. It is certainly not too much to say that he may fairly presume that the company, having neglected to keep the fence in proper condition, will take care to so run its trains as not to injure stock which may escape and stray upon the railroad track.

It was held in Rogers v. Railroad Co., 1 Allen 16, that a railroad company, which is bound to erect and maintain a sufficient fence, is liable in damages if a horse, feeding in an adjacent pasture, escapes through a defect in the fence and is killed by the cars, without proof of any. care ou the part of the plaintiff to prevent such an escape. In delivering the opinion of the court in that case, Chapman, J., remarked : “ The plaintiff had a right to place his colt in his pasture to feed, and was under no obligation to the defendants to use any care to prevent his escape by reason of their neglect to maintain the fence. It was for them to use the necessary care to prevent such an escape, and their duty would not- be transferred to the plaintiff by giving him notice that the colt had escaped two or three times before and been upon the track, and so evidence of such notice would be immaterial. The plaintiff would still have a right, as between him and the defendants, to use his pasture as before; and the due care to prevent the escape through the defect of the fence would still be the duty of the defendants.”

I have not thought it well to discuss the numerous cases bearing upon this subject as they turn upon the construction of statutes which vary in different states.

Judgment affirmed.  