
    RAILROADS — NEGLIGENCE.
    [Pike (4th) Circuit Court,
    May Term, 1905.]
    Jones, Walters and Cherrington, JJ.
    Norfolk & Western Ry. v. C. A. Vallery.
    Railroad not Excluded ebom Constructing Cattle Guards at Public Crossing within Yards unless Public Necessity Requires Crossing to be Kept open, etc. .
    A railroad company which fails to construct and maintain cattle guards at a street crossing within its switch and depot grounds must, in order to relieve itself from liability to the owner of horses which strayed upon the track over such crossing and were killed, show that the necessity of the public required that cattle guards should not be constructed at the crossing in question. It is not sufficient to show merely that the necessity of*the company and of its employes required that the street should be kept open and no cattle guards constructed.
    Error to Pike common pleas court.
   WALTERS, J.

The defendant in error by his petition against the defendant below, the Norfolk & Western Company, alleges that the railway company was a corporation operating its road through the village of Piketon, Pike county, and that the railway company did not have erected either fences or cattle guards north of its depot at Piketon, nor south thereof, and that the pláintiff in March, 1904, was the owner of two horses that strayed from his premises, and by reason of the defective fences and cattle guards upon the railroad, his horses strayed thereon and proceeded down the track of the Norfolk & Western railway to a point south of the depot where they were run down and killed.

The defendant admits it is a corporation and operating a railroad and denies every other allegation, and further says that said horses entered upon the right of way at a public station yard which was necessarily uninclosed in order that the public as well as the railroad could get to and from the station building in loading and unloading cars, and in using its side tracks and yards, and that said horses were killed within the limits of said yards and depot grounds.

A trial was had in the court of common pleas, before a jury and a verdict returned for the plaintiff therein.

There is but one error relied upon, by the plaintiff in error, upon which it seeks to reverse the judgment of the lower court, and that is the alleged error appearing upon the record in the form of a charge requested by the defendant below to be given to the jury before argument.

The statute of the state, Lan. R. L. 5288 (R. S. 3324), required the railroad to fence, also requires them to build a cattle guard at all crossings, road crossings, street crossings, and other crossings without any exception whatever; and hence includes all streets, lanes and alleys in the village. The Supreme Court however, in the case of Railway v. Newbrander, 40 Ohio St. 15, wrote into this statute an exception, occurring from the necessities of the railroad and the public, and its employes.

In the first subdivision of the syllabus the Supreme Court makes use of this language:

“This statute may be construed as allowing exceptions required by public necessity and convenience and the proper use of a station yard by the company. ’ ’

The second subdivision of the syllabus is as follows:

“When the company is relieved from this requirement, for the above reasons, it is its duty to construct and maintain cattle guards across its roadway and grounds at the first points from the highway which will not interfere with the necessities and convenience of the public and the company.”

Such instructions were asked on behalf of the defendant company below, as would require the jury to bring a verdict for the defendant, if the jury found from the evidence that either one of three things existed: necessity of the public, necessity of the employes of the railroad company, or necessity of the company.

In the ease already alluded to, if the railroad company was relieved from performing this duty only on this requirement, and the company required that the depot grounds and yards remain open and unobstructed, the matter that counsel for th’e defendant raised, that if the defendant’s testimony showed that from the necessity of the railroad employes that this road should be kept open, and that no cattle guards should be used where it is alleged these horses passed over, that that was sufficient, and that it was not necessary for the jury to find that it was a necessity to the public or to the company.

If counsel for the plaintiff in error is correct in their construction, there is error in this record, otherwise there is not.

The facts disclosed by the record are, that the horses escaped from his farm some three miles from the railroad without any negligence on his part, and that they took the railroad at the crossing on the public road known as the Jackson Hill crossing. And some of the testimony tends to show that these horses after passing over this Jackson Hill crossing, passed down the railroad as was evidenced by the witnesses’ testimony, that they tracked the horses down the railroad to the place where they were injured below the depot and killed. There is other testimony tending to show that the horses passed over this Jackson Hill crossing and into the village of Piketon coming onto the railroad at another point.

The question therefore to decide is, under the facts in the case, whether or not it is necessary for the railroad in order to relieve itself of liability upon its switeh and depot grounds that these three elements be shown as have been presented in an instruction to the jury.

In Thornton, Railroad Fences and Private Crossings 158, the author quotes from an Iowa supreme court ease, in which the court says:

“The theory of exemption from the statute requiring fences has always been founded upon the relation of the company to the public and not to any other construction. ’ ’

Again the Supreme Court of Indiana has been quoted on page 161:

“These exceptions have been made not to advance the private interests of the railroad corporations, but to promote the public good by enabling the corporation to discharge their duty to the public. These exceptions exist only in cases where public necessity is shown.”

There is quoted another citation and the author comes to the conclusion himself that the exceptions given from the decisions are the constructions alluded to, and hence, made on behalf of the public. But as I have already quoted from our Supreme Court, the three elements are necessary to complete the exception, and hence, there seems to be a mutuality of interests required on behalf of the public and railroad company.

But then it is not alone the employes that are considered, nor the company, but the public. Hence, it would seem from these observations that the railroad company when it proves in a case as in this ease, that it was necessary to have the road open and to have the cattle guard away from this public highway, as a matter of necessity for the employes, then the railroad company only had proved one of the elements necessary to its complete exoneration; and in coming to that conclusion the rest seems easy.

This construction did not embody the three elements. The public was put in, but not included with the other two elements. The record discloses that the railroad company did prove that it was necessary that the cattle guard should be constructed so far away from persons using the road to serve the interest of the employes, that it was necessary for them to work on the trains without having the cattle guards that the testimony showed existed there.

The question was properly presented to the jury by the court below, the court giving very full instructions to the jury in-regard to cattle guards and fences. Instructing the jury to find where the horses came upon this track, if the three elements existed, the company would not be held liable, and ■ Our Supreme Court has determined in the case of Railway v. Newbrander, supra, that it is a fact for the jury to determine, and that it is necessary for the railroad to construct and maintain cattle guards at the first point below crossing that will not interfere with the public, if it does so interfere at the crossing. In this case, the defendant introduces evidence pointing only to one of these propositions.

Now according to the evidence, the depot at Piketon is about at a point equidistant from the cattle guard on the north and the cattle guard on the south, according to the testimony below and above the two crossings about half a mile or a little over. The testimony further discloses that from the water tank to the Jackson Hill crossing, is a distance between five and six hundred feet. That the space between the depot is the only space the public uses for loading and unloading, and the driving of vehicles for the purpose of taking merchandise there, and for removing the same therefrom. Below the depot, the testimony shows that below Narrow street, it is not used for the purpose of receiving or discharging freight. But now that was all before the jury. These distances, the amount of side track, the amount of freight track on the west side, the location of the south crossing, the cattle guards, the locatioh of the Jackson Hill road, and the cattle guard north of that, the whole topographical situation there, with reference to these tracks and side tracks, and depot and buildings were all before the jury. They must determine and did determine these questions of fact and, therefore, we cannot say that there was error in the court refusing the jury said instruction. It is therefore the judgment of this court, that the judgment of the lower court be affirmed.

Jones and Cherrington, JJ., concur.  