
    The Cincinnati, Hamilton and Dayton Railroad Company v. Waterson and Kirk.
    In an action to recover damages against a railroad company, for the destruction of horses which were on the track of the railroad when killed, evidence was given tending to prove an obligation resting upon the owner of the land where the horses were pastured, to fence it from the railroad track; and that in consequence of the failure the horses had strayed upon, the track. The court charged the jury, in effect, that the company would be liable for the negligence of its officers and agents, as though the horses were running at large, or no such obligation existed. In this charge there was error.
    The company had the right to protect itself against the inconvenience and hazard of using an unfenced road.
    After devolving the obligation to do this upon the owner of the land, he could not, over the breach of his contract, suffer his animals to go upon the road, without being liable for their trespass.
    In such case he would be a wrong-doer, and not entitled to demand the same degree of care as though he did not occupy that position.
    If the company had succeeded in establishing this fact, they could not. have been charged, short of proof of intentional injury, or of that gross carelessness, involving a recklessness of consequences, which it is so difficult to distinguish from intentional wrong.
    *Error to the district court of Butler county.
    The defendants in error brought their action on the case, in the ■court of common pleas of Butler county, against the Cincinnati, Hamilton and Dayton Eailroad Company, to recover damages for the killing of two horses of the defendants in error, by reason of the careless and negligent management of a locomotive and train of cars of said company, by its servants and employes.
    The case was tried at the February term, 1853, of said court of •common pleas, when a verdict was rendered and judgment given in favor of the defendants in error. The plaintiff in error then appealed to the district court, in which the cause was tried, with a like result, at the May term, 1853. ■ , ,
    The horses, at the time they were killed, were pasturing in a lot adjoining the railroad of the plaintiff in error. Defendants in error had rented this lot, as a pasture, from one John Jones, who had possession of it under a verbal lease from the executors of Daniel Millikin, deceased, to whose estate it belonged. Daniel Millikin, in his lifetime, by a paper dated December 27,1848, had released to said railroad company a right of way through his land, ■on the line occupied by said road, at the time of the injury complained of. This release, among other things, provided “ that said •company shall pay me [Daniel Millikin] the one-half of the cost of putting up good post and board fences, on .each side of said road, •.so far as it shall pass through my said tract of land.”
    On the 12th day of March, 1851, the executors of Daniel Millikin gave their receipt to said company, acknowledging payment of $470.60, in-full of half the cost of building said fences, and binding said executors to build the same.
    It appears that, in March, 1851, the second engineer of the company gave permission to said executors to build the fence on the west side of said road, on the top edge of the embankment, and that Daniel Millikin, under their direction, commenced to *build said fence on the top of the embankment; that in the spring of 1851, the contractor on the road objected to making the fence “at that place at that time,” as it would hinder hauling up gravel to ballast the road; that cattle-guards were temporarily erected, instead of fences, to enable th e proprietors to cultivate the land; that said executors rented, for the year 1851, “ all the tillable land ” west of ;said road, to John Jones, and that no fence was constructed between it and the road; that the cars commenced running on the -track of the railroad in September, 1851, and that in the December following the horses of the defendants in error were killed; that said Jones had permitted said defendants to pasture their two horses upon his land, rented as aforesaid, from which they could, and did without difficulty, pass upon the railroad track ; that on the day said horses were killed, about five o’clock in the evening, .a train of passenger cars was going northwardly; the horses were seen upon the track; just before reaching the “ backbone,” the whistle sounded, the steam was shut off, and the train proceeded slowly for some distance; the steam was then let on and off several times, and the speed increased and decreased alternately, the whistle blowing at frequent intervals, until the train stopped seventy-five or a hundred yards from the New River bridge; that at the first alarm of the whistle, the horses commenced running northwardly, keeping the track, jumped the cattle-guards, and continued their course until they jumped into the bridge, and were killed.
    
      The district court, on the trial of the cause, among other things,, charged the jury, “that the facts and circumstances in evidence, relied upon to show the want of proper care and diligence, on the part of the officers and agents of the company, in conducting the train, were for their exclusive consideration; and whether such-facts and circumstances established the want of such care and diligence, or the contrary, was a question of fact, proper for the exclusive determination of the jury; and that if they should find ■from the evidence, that these officers and agents, in running the *train, did not use proper care to prevent injury to the plaintiffs’ horses, and the safety of the passengers, and that, by reason of the want of such care, the plaintiffs’ horses were killed, it would be their duty to find that the horses were killed by the negligence of the defendant, notwithstanding said, horses were upon the track of defendant’s railroad, in consequence of a want of fences, which the plaintiffs, or those under whom they claimed, were bound to construct, or from being left to run at large by the-owner.”
    The defendants below (here plaintiffs) moved for a new trial, om account of the alleged error of the court in instructing the jury, and because the verdict was against the weight of evidence. The overruling of this motion is assigned for error, as is also the overruling of a motion in arrest of judgment.
    
      Thomas Millikin, and Scott & McFarland, for plaintiff in error:
    I. The Supreme Court may reverse the judgment of the district ceurt, in refusing to grant a new trial when the motion is made on the ground that the verdict is against the weight of the evidence-Act of March 12, 1845, vol. 43, p. 80 ; act of March 23, 1852, vol. 50, p. 93; act of April 30, 1852, vol. 50, p. 102; same vol. p. 67, sec. 4;. Shepler v. Dewey, 1 Ohio St. 331; Lessee of Beardsley v. Chapman, 1 Ohio St. 125.
    II. The allegation in the declaration, that the horses were killed “ by the mere negligence of the defendant’s agents,” is a material allegation. 1 Swan’s Prac. and Prec. 436.
    III. The court erred in instructing the jury as to the exclusive-consideration and determination by the jury of the question of negligence. The question what degree of care and diligence is required of the defendant, under the circumstances of the case, must necessarily be a question of law. Whether this requisite degree of care was in fact exercised, is admitted to be a question of fact merely.
    ■*IY. When the negligence or wrongful act of the plaintiff .-co-operates with the negligence of the defendant to produce the ^damage, an action will not lie. Blyth v. Topham, Cro. Jac. 158; Bush v. Brainard, 1 Cowen, 78; Sarck v. Blackburn, 4 C. & P. 297; Blackman v. Simmons, 4 C. & P. 138; Brock v. Copeland, 1 Esp. 203; Howland v. Vincent, 10 Metc. 371; Jordin v. Crump, 8 M. & W. 782; Brownell v. Flagler, 5 Hill, 282; Cook v. The Champ. Trans. Co., 1 Denio, 99; Story on Bail, secs. 19, 22; Gardner v. Heart, 3 Denio, 255 ; S. C. 4 Comst. 349; Marsh v. N. Y. & Erie R. R. Co., 14 Barb. S. C. 364; Suydam v. Moore, 8 Barb. 358; Waldron v. The Renssalaer and Saratoga R. R. Co., 8 Barb. 390. The case of Quimby v. Central R. R. Co., 23 Vt., 387, is really an authority in favor of plaintiff in error.
    In that case, the plaintiff was not bound to construct the fence, •the want of which occasioned the injury complained of; and as the .court places its decision expressly on that ground, the inference is fair, that had the fact been otherwise, the decision would have been for the defendant. That very circumstance, then, which, in the case .at bar, the jury were instructed to consider as wholly irrelevant and immaterial, was in that case regarded as so vitally important as to be decisive of the case. The weight of American authorities is .largely against the principle decided in the case of Davies v. Mann, 10 M. & W. 545 ; but even admitting it to be law, the case is by no means analogous to the one at bar. That was a case in which the injury complained of was done on a public highway, to the use of which the plaintiff aDd defendant were equally entitled, and in which the plaintiff was bound by no special contract with the defendant, to secure him in the undisturbed and exclusive use of the locus in quo, by the erection of suitable fences.
    (Counsel for the plaintiff in error also referred to the following cases*: New York and Erie R. R. v. Skinner, Am. L. Reg. for December, 1852, p. 97, and notes appended by the editor; Louisville and Frankfort R. R. Co. v. Milton, West. L. Journal for August, 1853, p. 483; Edward Williams v. Michigan Cen. R. R. Co., 4 U. S. Monthly Law Mag. 281; Jackson v. Rutland and Burlington R. R. Co., Liv. Law Mag. for January, 1854, 44, and authorities .there cited.)
    
      
      James Clark, for plaintiff in error.
    I. The negligence of the plaintiff, in order to preclude him from-, a recovery for an injury caused by the negligence of the defendant, must amount to a want of ordinary care. Butterfield v. Forrester, 11 East. 60 ; Chaplin v. Hawes et al., 3 Car. & Payne, 554; Bridge v. The Grand Junction Railway Co., 3 Mee. & Wels., 244; Lynch v. Nurdin, 1 Adol. & El. 35; Birge v. Gardiner, 19 Conn. 512; Beers v. The Housatonic R. R. Co., 19 Conn. 566; New Haven St. and Tr. Co. v. Vanderbilt, 16 Conn. 420; Marriott v. Stanly, 1 M. & G. 568 ; Smith v. Smith, 2 Pick.621; Thompson v. The Inhabitants of Bridgewater, 7 Pick. 188 ; Lane v. Crombie, 12 Pick. 177; Adams v. The Inhabitance of Carlisle, 21 Pick. 146; Washburn v. Tracy, 2 Chip. 28; Bird v. Holbrook, 4 Bing. 628.
    II. The negligence of the plaintiff to preclude him, must proximately conduce to the injury of which he complains. Davies v. Mann, 10 Mee. & Weis. 545; Flower v. Adam, 2 Taunt. 314.
    III. The decisions relied on by the plaintiff in error, are based upon a rule of the common law, which does not exist in Ohio. Swan’s Stat. 410, sec. 8; Seely v. Peters, 5 Gilm. 130. But even, where the common law upon this subject has been held to prevail, the absurd deduction has not been uniformly drawn from it, that animals permitted to run at large by the owners became therefore outlawed. Jackson v. Rutland and Burlington R. R. Co., reported Jan. No. Livingston’s Monthly Law Mag., 1854; Ricketts v. E. & W. India Docks & Birm. June. R. R. Co., 12 Eng. Law & Eq. 520.
    *IV. The case of Quimby v. Central R. Co., 23 Verm. 387; very nearly resembles that at bar.
    V. “ There is no distinction between railroads and ordinary highways in regard to the degree of care, which the law requires on the-part of those who have the direction or management of vehicles' upon them.” Beers v. Housatonic R. Co., 19 Conn. 566.
    VI. The court was not bound to say anything to the jury as to-what degree of want of care, on the part of the agents of the railroad company, would render it responsible, unless requested by one or both of the parties. Jones v. State, 20 Ohio, 45. But there was' no erroneous instruction given. The most that can be said is, that the court failed to instruct upon that question : but whether the-the facts and circumstances established such care, or the contrary, was a question of fact, and as such properly left to the jury. All complex issues, in which law and fact are intimately blended, are-necessarily left to the jury, the court, in its discretion, instructing or not instructing them, in regard to the matters of law. 1 Greenl. sec. 49. But the hill of exceptions does not profess to give more than an extract from the charge of the court. How then, do wo know from the record, that the court did not, in some other part of their charge, fully instruct the jury, as to what constitutes proper care ? Error is not to he presumed. All intendments of law, are in favor of the validity of judicial proceedings. Coil v. Willis, 18 Ohio, 28.
    Y1I. Where the language of a verdict is equivocal, the court will give it such meaning as to give effect to the verdict; and every reasonable construction is to be adopted in its favor. Carr v. Stevenson, 5 Humph. 559; Aye v. Maxwell, 14 Vt. 14; Huntington v. Ripley, 1 Root, 321. But the plaintiff is not bound to aver in his declaration, what degree of want of care, on the part of the defendant, caused the injury complained of.
    YIII. A motion for a now trial, especially on the ground that the verdict of the jury was against the weight of evidence, *is always addressed to the sound discretion of the court; and unless authorized by express statute, a court of error can not review the exercise of that discretion. Marine Ins. Co. of Alexandria v. Young, 5 Cranch, 191; Norwich & Worcester R. Co. v. Cahill, 18 Conn. 484; Henderson v. Moore, 5 Cranch, 11. The law was the same in Ohio till modified by the “ act to regulate the judicial courts, and the practice thereof,” passed March 12, 1845; 43 Ohio Stat. 80. That statute took away the right of appeal to the Supreme Court, in cases at law; and jwovided, by way of conrponsation, that the opinion of the court of common pleas, or superior court of Cincinnati, in overruling a motion for a new trial, might be reviewed in the Supreme Court on error. This statute has been repealed by the “ new code; ” but, were it still in force, it could have no applicability to a case, in which a motion for a new trial had been overruled by the district court, for two reasons : 1. The reason of the statute, viz: the absence of a right of apjjeal from the court in which the case was first tried, has ceased to exist. 2. The statute, by its terms, is confined to cases in -which motions for new trials have been overruled by the court of common pleas, or the superior court of Cincinnati — of neither of which courts, as organized at the time of the passage of said act, is the present district court the representative or successor.
   Ranney, J.

This case was elaborately argued, upon the general question of the liability of railroad companies for the destruction of stock running at large, before the case of Kerwhacker v. Cleveand, Columbus and Cincinnati Railroad Co., 3 Ohio St. 172, was decided by this court. The decision in that case has made it unnecessary to examine the general question in this. I fully concurred in the judgment of reversal rendered in that case; but not altogether in the grounds upon which it was placed, or the reasoning by which it was supported. But as my difference related rather to the inapplicability of some of the ^principles invoked, than to their abstract correctness, I did not then deem it necessary to express a separate opinion. I will, however, take this occasion to say, that, in my judgment, the owner of domestic animals, in suffering them to run at large under the limitations expressed in the statute, is in no fault; and that there is, therefore, no room for the application of the doctrine which determines when a party in the wrong, may, nevertheless, recover for injuries arising from the negligence of another.

In other words, the owner has a perfect right to suffer his animals to go at large, without incurring any responsibility to the owners of uninclosed grounds, upon which they may wander. I am aware, that this is flatly opposed to the common-law doctrine upon the subject, and if that rule of the common law was in force in this state, would be entirely inadmissible. But it is not in force; and it is not in force because, in addition to being utterly inconsistent with our legislation, it lacks all the essential requisites that give vitality here to any principle of the common law, and is opposed to the common understanding, habits, and even necessities, of the people of the state.

Indeed, with the strict enforcement of such a rule, the state never could have been settled. The lands were all heavily timbered, and the introduction of domestic animals, from the scarcity of herbage, requiring a wide range for their support, became indispensable before the forests could be removed. It would have been a novel proposition to a hardy pioneer, when he listened in the morning for the bell that indicated where the oxen that hauled together his logs for burning, might be found, to have told him that his cattle were trespassers on every other man’s uninclosed land upon which they might have fed during the night; or that he could plant corn without inclosing the ground, and sue his neighbor whose cattle had eaten it up.

Nobody, either lawyer or layman, ever thought of such a thing. The practice of letting cattle go at large was considered as a right, treated as a right, and regulated by numerous statutes as *a right. So early as 1792, it was expressly provided, “ That the open woods and uninclosed grounds within the territory, shall be taken and considered as the common pasture or herbage of the citizens thereof, saving to all persons their right of fencing ” (5 Ch. -St-at. 125) ; and although this specific provision has not been continued, the multiplied regulations as to strays, fences, and inclosures, since passed and still in force, and which are referred to in the case I have cited, abundantly show that the general assembly .has always entertained the same opinion.

Bailroad companies have been incorporated with the capacity to acquire lands, and placed under no obligation to fence, as a condition to using them for the purpose of running trains. They hold them as other proprietors do, and if they see fit to leave them unfenced, they can no more treat the intrusion of domestic animals as a trespass than other proprietors can. It has therefore always seemed to me, that suffering cattle to run at large, and running trains upon an unfenced railroad, were each equally lawful — binding the owners of each to submit to the inconveniences and increased hazards of using their property in that manner — but subjecting neither to the imputation of unlawful conduct, so as to give or bar a right of action, when either right had been fairly and reasonably exercised. And that the legal consequence was that each, as against the other, was entitled to require the exercise of reasonable and ordinary care to prevent injury. This I regard as the fair result of our •present legislation. If a change is desirable, it belongs to the general assembly to make it, by either requiring the railroad companies to fence, or prohibiting cattle from running at large; but neither can be done by the judiciary: especially in view of the fact, that tho legislature has repeatedly refused to do either.

This conflicts with no decision made elsewhere. In every case where the owner of cattle has been denied a remedy for their destruction by the - carelessness of railroad agents, the common-law doctrine was in force; and the cattle were held to be trespassers ■*on the uninclosed road. The remedy was denied because the unlawful act of the owner directly contributed to the injury. This maybe a correct conclusion, when the injury has resulted from mere negligence, and still be very far from being correct when no' such unlawful conduct is established.

In this case, we should find no fault with the charge of the court if the ease had depended wholly upon the relative rights and obligations of the owner of the cattle running at large and the railroad company. The court wore right in saying that the facts and circumstances relied upon to show a want of proper care, were for the exclusive consideration of the jury; and if more specific instructions, as to the degree of care required, were wanted, they should have been asked for. - Of still less importance is the criticism, predicated upon the awkward wording of the bill of exceptions, as to the same care being required t© prevent injury to horses as for the safety of passengers. This part of the charge, if it had any application, was in favor of the company; as it made the safety of the passengers the first object of attention, and allowed the destruction of the horses if necessary to that end.

But the company gave evidence tending to prove an obligation resting upon the owner of the land where the horses were pastured to fence it from the railroad track, with which he had failed to comply, and in consequence of the failure, the horses had strayed upon the track. This evidence was, in effect, taken from the jury, and ’they were told that the company would be liable for the negligence of its officers and agents, as though the horses were running at large, or no such obligation had existed. In this, we think, there was error. The company had the right to protect itself against the inconvenience and hazard of using an unfenced road. After devolving the obligation to do this upon the owner of the land, he could not, over the breach of his contract, suffer his animals to go upon the road without being liable for their trespasses. In such case he would be a wrong-doer, *and not entitled to demand the same degree of care as though he did not occupy that position. If the company had succeeded in establishing this fact, they could not have been charged, short of proof of intentional injury, or of that gross carelessness involving a recklessness of consequences which it is somewhat difficult to distinguish from intentional wrong. As the plaintiffs below occupied this ground under the owner, we think they are subjected to the same rule.

The judgment is reversed, and the cause remanded for further proceedings.  