
    Railway Co. v. Heiskell.
    An owner of land through which a railroad passed agreed with the railroad company to maintain and keep in repair a line of fence on the south side of the road, and the company agreed to do the like on the north side. Afterwards the company, for its own convenience in rebuilding a bridge over a stream of water there situate, removed a portion of the fence on the south side of the road, and, when the bridge was completed, instead of restoring the portion of fence removed, constructed, as a substitute therefor, wing fences from the abutments of the bridge, over its right of way, to the ends of the old fence, so as to prevent the passage of stock from the adjacent fields to the railroad. The portions of fence thus substituted for the part of the old fence which had been removed were accepted by the land-owner as an inclosing fence to his fields.
    
      Held: 1. By accepting the new wing fences as a part of the line of fence inclosing his adjacent fields, it became the duty of the land-owner to keep the same in repair.
    2. Occasional repairs of the new wing fences by the company did not release the land owner from his duty to keep the same in repair.
    ,3. Such land-owner is without remedy where his stock passes, by neglect to make such repairs, to the track of the railroad and is killed by a passing train, unless it be shown that the killing was caused by negligence in running the train.
    4 The burden of proving such negligence rests on the plaintiff. It cannot be inferred from the fact of killing. Railroad Co. v. McMillen, 37 Ohio St. 554
    
      Error. Reserved in the District Court of Madison county.
    The original action was brought by Daniel O. Heiskell against the Pittsburgh, Cincinnati & St. Louis Railway Company in the common pleas of Madison county, to recover the value of three colts and a sow killed on the 25th of April, 1874, upon the line of the defendant’s road, by passing trains, through the alleged negligence of defendant in maintaining sufficient fences, and in the management of its running trains.
    The defendant denied negligence on its part, and alleged, “ That by a written agreement between the plaintiff and defendant’s lessor, dated November, 1853, the plaintiff was bound to keep up and maintain the fence at the place where the animals came upon the track, and that at the time of the injury the animals were trespassing on defendant’s track, by reason of the carelessness of the plaintiff in not keeping up the fences which he was bound to maintain.”
    The plaintiff replied that the contract relied on was without consideration, and had been abandoned by the parties.
    A verdict and judgment were rendered for the plaintiff for $818.06. Divers exceptions having been taken, the defendant brought this proceeding in the district court, where it was reserved for decision here.
    
      Harrison, Olds <& Marsh, for plaintiff in error :
    It was Heiskell’s duty to have rebuilt his fence when it was taken down by the company. He could have compelled the company to pay the cost of rebuilding it. But instead of doing so he chose to allow the company to put up the wing fences, and he has relied upon them to enclose his field, and has by his acts and conduct adopted them as a part of his fence. Teery v. Railroad Co., 22 Barb. 574.
    At the time the animals escaped, the duty of maintaining the fence at the place where they escaped, was upon Heiskell, and not upon the company. Swan’s Treatise (10th ed.) 365; Act of March 25, 1859 (1 S. & O. 331); Act of April 26, 1871 (68 Ohio Laws 78); Railroad v. Sloan, 27 Ohio St. 341; 
      Poler v. Railroad Co., 16 N. Y. 476; Jones v. Railway Co., (Wis.) 5 Central L. J. 292; 2 Cush. 536.
    If this be so, then Heiskell was not entitled to recover unless the injury to the animals is shown to have been intentional, or the result of gross carelessness on the part of the agents and servants of the company in the running of the trains. P. C. & St. L. Ry. Co. v. Smith, 26 Ohio St. 124; Philps v. Cousins, 29 Ohio St. 135; Railroad Co. v. Waterson, 4 Ohio St. 424.
    
      Geo. Lincoln and Keifer & White, for defendant in error :
    Conceding that Heiskell was originally bound to maintain the fence at this point by his contract, the railroad company might excuse him therefrom, either by an express release or by acts equivalent to such release. Its acts operated to do so.
    Again, the railroad company was in duty bound to repair the damage done ; it elected to do so by assuming Heiskell’s obligations, and substituting their fences for his. 3 Hall, 215; 33 Ill. 308; 38 Ill. 230; Bigelow on Estoppel, 475; 5 Denio, 157; 8 Am. L. Reg. (N. S.) 665.
    The statute (S. & C. 331) imposed upon the railroad company the obligation of maintaining the fence, from which it had relieved itself by its contract with Heiskell, but not as to strangers. Gill v. A. & G. W. Ry. Co., 27 Ohio St. 240; Warner v. Railroad Co., 31 Ohio St. 265. When, however, it released Heiskell from the burden thereof by removing his fence and flood-gate and guarding the opening thereby made and immediately thereafter constructing the wing fences on its own land, the statute cast this duty upon it, not only as to strangers, but also as to Heiskell; and for its failure to perform such duty made it liable for “ all damages that may result to . . . domestic animals by reason of the want or insufficiency of the fences.” Railroad Co. v. Methuen, 21 Ohio St. 586; Railroad Co. v. Stephenson, 24 Ohio St. 48. Heiskell was not called upon to do the vain thing of keeping up his fence and flood-gate straight across the river. The wing fences constructed by the railroad company, while good and sufficient, protected his pasture land from the railroad track as effectually as two or more fences at that place could have done. Haxton v. P. C. & St. L. R. R. Co., 26 Ohio St. 214; Swan Tr. (11 ed.) 373. If this railroad at the place where the injury occurred, was improperly fenced, as counsel for plaintiff in error insist, then it was the duty of the railroad to have exercised a higher degree of care in running its trains. Kerwhacker v. Railroad Co., 3 Ohio St. 172; Gill v. Railway Co., 27 Id. 248; M. & C. R. R. Co. v. Stephen, 24 Id. 48; Swan Tr. 373. If the fence through which the horses escaped onto the track was in fact insufficient, and Heiskell knew it at the time he put the horses into the pasture, and they escaped on to the track by reason of such insufficiency, and were there killed by the gross negligence of the employees of the railroad company, Heiskell may recover. Brown v. Railroad Co., 11 Am. Rep. 424; Railroad Co. v. State, 35 Md. 366, and cases above cited.
   MoIlvaine, J.

The controlling facts in this case were so clearly proved by the testimony, all of which is set out in the record, that the principal question before us is, whether or not the verdict was contrary to law.

The facts may be stated thus: Previous to the year 1853, the Columbus and Xenia Railroad was constructed, from east to west, through plaintiff’s farm, and, within its limits, across the Little Miami river on a wooden bridge, and on each side of the road a fence had been built by the plaintiff. On the 8th of November, 1853, that company and the plaintiff entered into the following agreement in writing, to wit:

“ In consideration of $141.87 paid me by the Columbus and Xenia Railroad Co. for one-half of the division-fence built by me along the line of the said road through my land, I bind myself and assigns to keep up forever one-half of said division fence; the said company to have the right to select which side they will take in the above purchase. The other side to be kept up by me as aforesaid. I also bind myself to make a satisfactory conveyance of the right-of-way one hundred feet wide through my said land, which lies west of South Charleston in Clarke county, adjoining Webster’s land on the west.”
“Nov. 8, 1853
[Signed] Daniel O. Heiskell.”

By this agreement, and the selection thereunder, the plaintiff became bound to maintain the fence on the south side of the road, and the company, the fence on the north side. Such was the relation of the parties when the Columbus and Xenia company leased its road to the defendant, and the same relation between the plaintiff and defendant was afterwards recognized and acted upon without question or interference in any manner until the year 1863, when defendant reconstructed the bridge over the river, by substituting iron for wood, and in so doing, for convenience sake, removed about eighty feet of plaintiff’s rail fence on the south side of the road, including the part extending across the river. After the rebuilding was completed, the defendant, instead of restoring the portion of the rail fence which had been removed, constructed wing fences of posts and boards from the abutments of the bridge, on each side of the river, to the contiguous ends of the rail fence, thus completing the separation of the defendant’s track from the adjacent pasture lands of the plaintiff, by a good and sufficient fence. This change and substitution by the defendant was acquiesced in and adopted by the plaintiff, by the construction of flood gates across the river between the abutments, thus completing a continuous line enclosing his pasture lands on the south side of the road.

These wing fences, without any further express agreement between the parties, continued to be used as parts of the division fence between the railroad and the plaintiff’s lands, until the happening of the grievances herein complained of on the 25th of April, 1875. During this period these wings had been repaired on several occasions by the defendant, and on one or more occasions by the plaintiff. On the 25th of April, 1875, the wing fence on the west side of the river was insufficient for want of repairs, for the purpose of turning stock, a fact then known to the plaintiff, by reason whereof tbe plaintiff’s stock escaped from the adjoining pasture and went upon the railroad track, where they were killed by passing trains.

The testimony does not show any negligence on the part of the defendant in the management of the trains at the time of the injury; but, rather, that they were being run with ordinary aud reasonable care.

Upon the foregoing state of facts, we think the verdict should have been for the defendant, and on the trial below tile court charged the jury to the same effect.

There is no room for dispute, that, as between these parties, previous to the year 1863, the plaintiff was bound to maintain and keep in repair the entire line of fence on the south side of the railroad, so far as the same was located through his lands.

We concede, that in 1863, when the railroad company removed a part of this line near the river, for its own convenience in rebuilding the bridge, the plaintiff was thereby released from its duty to the defendant in respect to the portion of fence so removed, until the same was restored by the defendant. But when restored the conventional rights and duties of the parties again attached.

It is claimed, however, that the part of the fence removed, was not restored. Strictly, this claim is true. The rail fence was not rebuilt, nor was any substitute placed on the same site. But a post and board fence was constructed from the abutments of the bridge and connected with the ends of the rail fence which had not been removed, as a substitute for the part removed. True, the plaintiff might have objected to the substitute ; but he did not. On the other hand, he accepted it and adopted it as a part of the division line of fence between the parties. By so doing, we think, the duty to keep the substituted part in repair attached to the plaintiff under the former convention of the parties. Such was the instruction given to the jury by the court below, and we can see no error in it. But, if there were doubt on this point, it is perfectly clear, that by the use and adoption of this new line by the plaintiff as a means of inclosing his adjacent fields, the same became a division fence between the parties, and the duty of keeping it in repair devolved upon both parties; and each was guilty of negligence in' suffering it to be out of repair. Bences between railroads and other improved lands are put on the same footing with other partition fences (Act of 1859, § 3, S. & C. 332), and such partition fences are kept in repair by adjoining owners (Act of 1840, § 2, S. & C. 649). So that in either view, the plaintiff, having failed to beep this fence in repair, and having permitted his stock to escape through the same, knowing it to be insufficient, whereby they were killed by passing trains, should not have recovered for the injury to which he thus contributed, without proof of negligence on the part of defendant in the management of its trains.

On the question of negligence in the management of the trains at the time the plaintiff’s stock was killed, in view of the ruling in Railroad Co. v. McMillen, 37 Ohio St. 554, we are clearly satisfied that the judgment in favor of the plaintiff cannot be sustained on this ground.

Judgment reversed and cause remanded.  