
    Joshua S. Gill v. The Atlantic and Great Western Railway Company.
    1. Under tlie act of March 25, 1859, it is the duty of a railroad to keep its road properly fenced, and it does not discharge that duty hy contracting with another party to perform it, when the performance itself is insufficient.
    2. If the road is properly fenced, the company is held to the exercise of ordinary care only, in the running of trains, .to prevent the killing of animals. Where the road is not properly fenced, a higher degree of care is required.
    Error to the District Court of Union county.
    
      Wm. Lawrence and Joseph H. Lawrence, for plaintiff:
    The verdict necessarily finds that defendant did not “maintain sufficient fences” to prevent animals from “ getting upon such railroad,” and that defendant “ failed to exercise ordinary care ” to avoid killing the plaintiff’s mules, and so the killing resulted (to use the words of the act of March 25, 1859) from “ carelessness or negligence of such company.”
    The verdict necessarily finds that the plaintiff “ used ordinary care to keep his mules in his inclosure, and to keep his fences in repair, and that he did not know that the mules had escaped,” and so he is not guilty of any negligence or fault.
    The tree which made the gap in the line-fence fell on that part which Gill was to keep up. Yet, hy agreeing to keep up a line-fence, Gill did not bind himself to repair the fence where it was broken down by the timber from the adjoining lands, and in the case before the court, Graham would be required to remove the tree and repair the fence. Gill, by his contract, only bound himself to make ordinary repairs.
    Notwithstanding these facts, the defendant seeks to escape liability for its negligence :
    
      I. By the Graham contract to maintain fences.
    II. and III. By operation of the act of April 13, 1865.
    IY. The defendant insists that the Common Pleas erred in receiving the evidence as to the effect of not having cattle-guards.
    Y. Defendant alleges the evidence does not support the verdict.
    These five points we will consider in their order :
    I. The contract with Graham to maintain fences along the railroad does not relieve the railroad company from liability for “ damages which may result by any carelessness or negligence of such company,” such as killing plaintiff’s mules.
    1. This is so because the act of March 25, 1859 (4 Curwen, 3210), expressly makes the company liable.
    It requires “ every railroad company to maintain sufficient fences to prevent animals from endangering themselves and the lives of passengers by getting upon such railroad,” and provides that “ such company shall be liable for all damages which may result by reason of the want or insufficiency of fences.”
    The defendant now asks the court to construe the statute as if it read: “ Every railroad company shall maintain sufficient fences, or make a contract with some man to maintain fences which he shall be at liberty to disregard.”
    This is precisely the effect of the construction asked for. It would defeat the whole purpose of the statute. It is against its plain letter. The statute says the company shall maintain fences. Such construction would enable railroad companies to escape the whole purpose of the act by a contract with irresponsible, or negligent persons. It would imperil life and property ; it would be absolute legislation, not construction.
    2. The liability of defendant exists independently of the-statute.
    The verdict finds the defendant guilty of negligence, and the plaintiff not so. But the plaintiff may still be entitled to recover if, in some respects, in fault. This was decided in Kerwhacker v. C., C. & C. R. R. Co., 3 Ohio St. 172, which held, that “when the negligence of the defendant is the proximate cause of the injury, but that of the plaintiff only remote, consisting of act or omission not occurring at the time of the injury, the action is maintainable.”
    In the case now before the court there were two proximate causes of the injury : 1. The negligence of the company in not checking the train; and 2. Its omission to make sufficient fence.
    The verdict necessarily so finds, and may therefore be sustained on general common-law principles. C., C. & C. R. R. Co. v. Elliott, 4 Ohio St. 476.
    3. This court has not sanctioned any exceptions to the statute applicable to this case. C., H. & D. R. R. Co. v. Waterson, 4 Ohio St. 424; and Easter v. L. M. R. R. Co., 14 Ohio St. 48.
    4. The contract did not require Graham to maintain a ■fence at this crossing. The statute (as will be hereafter ■shown)- requires the railroad company to maintain this «crossing, and cattle-guards at it. The contract could not '-interfere with a duty enjoined by statute on the defendant to maintain private crossings.
    II. and III. The act of April 13, 1865, does not relieve ■defendant from liability on the facts which the verdict necessarily finds.
    The exception to the second and third charges to the jury very erroneously assumes that as the plaintiff’s mules ¡had escaped from his inclosure, that, within the meaning •of the act of April 13, 1865, they were : 1. “At large;” 2, 'That the plaintiff’ “ suffered ” them to go at large ; 3. That this defeats his right to recover, notwithstanding the double ■negligence of defendant in not keeping up fences, and in ■not using proper care to avoid killing. It would require .all three of these points to be affirmed to render the ver<dict wrong. The verdict negatives all of them.
    1. The mules were not “ at large.”
    The act of 1865 is to be strictly construed, for two reasons : 1. Because it is penal; and 2. Is in derogation of the common law right to have animals run at large, 3 Ohio St. 172; 4 Ib. 432. It does not apply to animals straying upon private inclosures or private lanes, as were those of Graham. The statute makes it unlawful to go “ at large ” in a “ road,” “ street,” “ alley,” “ lane,” or “ uninclosed grounds.” To go “ at large,” ex vi termini, means to be in a public place.
    Graham’s land was shut out from the public road by “ a gate at the end of the lane.”
    2. The plaintiff did not “ suffer ” his mules to go at large.
    
      a. If the mules were not at large as I have shown, then it follows conclusively that the plaintiff did not “ suffer” them to go at large.
    
      b. The word “ suffer ” is equivalent to “permit” — implies volition, assent. The statute is penal, and requires knowledge and active assent. 8 Ohio, 238. ■
    The verdict necessarily finds that the mules were out of plaintiff’s inclosure without his knowledge or consent, and without his fault. On these facts he did not “ suffer ” them to go at large. This was decided in Bulkley v. N. Y. & N. H. R. R. Co., 27 Conn. 479.
    The analogy between that case and this is sufficiently apparent. To the same effect, see Hilliard on Torts (4 ed.) 508 ch. 17, sec. 21; 2 Id. 334, ch. 36, sec. 43; New Albany & S. R. R. Co. v. Tilton, 12 Ind. (Tan.), 3; Luner v. State, 12 Ib. 485; Isbell v. N. Y. & N. H. R. R. Co., 27 Conn. 392.
    3. But if the plaintiff “ suffered ” the mules to go “ at large,” this will not defeat his action or reverse his judgment.
    It has already been shown that “ when the negligence of defendant is the proximate cause of the injury, but that of the plaintiff only remote, the action is maintainable.
    The verdict finds all this, and must be sustained. The statute had no purpose to give immunity to railroad companies. It was designed for the promotion of agricultural interests. 12 Ind. (Tan.), 3; Id. 485.
    
      IV. There was no error in admitting evidence that the effect of not having cattle-guards would be to allow cattle to get upon the track.
    1. The statute of March 25, 1859, required the railroad company to “ maintain a sufficient number of suitable crossings for the accommodation of the public and of persons living near the line of such road, with the necessary cattle-guards, to prevent animals from endangering themselves by getting upon such railroad.”
    Graham lived near the line of road. The crossing was necessary for his accommodation.
    It was, then, the duty of defendant to keep up cattle-guards. Graham had not agreed to maintain cattle-guards. The effect of keeping them up was essential proof, and it was given in proper form.
    2. But if Graham had agreed with the defendant to beep up a fence, including this point, evidence was proper to show that the crossing was in a condition in which the mules could get on it. That was the effect of the evidence.
    8. The evidence is immaterial, and so could not injure the defendant.
    The evidence is clear, and the supplemental answer admits that the mules did get on the railroad at this crossing, and there was not, as the supplemental answer also admits, any sufficient obstruction to prevent. The evidence, then, as to cattle-guards, could not prejudice defendant.
    4. a. No objection was made to the evidence of the fact that there' were no cattle-guards. Defendant can hot now object to the fact as evidence. Having consented to this, he could not object to its effect.
    This followed legitimately.
    
      b. It was an effect so well known that the jury must know it themselves. It is one of those facts which require no proof. It was no more necessary to prove this effect than to prove the effect of not fencing the road.
    V. The evidence supports the verdict.- This requires no argument. It is found by the jury. Nothing but gross palpable error in this respect would induce a court to interfere. The jury found that Gill was in no fault in any particular
    
      J. W. Tyler, with whom were Otis, Adams, and Russell, lor defendant in error:
    By the contract between Graham and the company, the company had complied with the fourth section of the act of March 25,1859 (S. & 0. 381), providing for inclosing railroads by fences and cattle-guards, and was thereby relieved from the obligations imposed by the other sections of the act.
    This fourth section recognizes the right of the company to relieve itself from the construction of fences and cattle-guards by contracts with adjoining proprietors or occupiers of lands.
    This court has construed this section in deciding the case of Marietta and Cincinnati Railroad Co. v. Stephenson & Brown, 24 Ohio St. 55, 56.
    Erom this holding it is plainly inferable that where contracts have been made for the construction and maintenance of fences, such as are required by statute, they will relieve the company from the duty of constructing and maintaining said fences.
    By this contract, everything was done by the company that it was required to do by law, to prevent the cattle of any one getting upon this part of the railroad.
    The fact that the road was fenced is a circumstance to be considered in ascertaining the degree of negligence of the company. C., H. & D. R. R. Co. v. Watterson & Kirk, 4 Ohio St. 434.
    It is not claimed that there is any privity of contract between Gill and the company in respect to this fencing, but what the defendant does claim is, that having legally provided protection for its railroad from the encroachments oí stock through Graham’s land, if through the fault of some third person its fences are thrown down or opened, thereby causing the destruction of stock unexpectedly found upon its railway track, coming from the lands of Graham; that whether such stock be his, or on his land by his permission or without it, that the company would not be liable. Certainly the one without fault should not be called upon to suffer the loss. In this case the company showed that the fault rested upon Graham in making the openings in the fences and not keeping them properly closed, as he was bound by his contract to do; but the jury were instructed to leave these facts out of consideration.
    Again, Graham, by this contract, construed under the provisions of the statute of 1859, had shifted the responsibility of fencing and maintaining fences from the company upon himself. The company had used the necessary care legally, and in fact, to keep these fences up, and they were let down by the very man who had assumed the responsibility of keeping them up. Shall the company be held responsible for another’s fault of which it had no knowledge, and in which it took no part nor lot? Russell v. Hawley, 20 Iowa, 219, 221, and cases cited; Great Western Railroad Co. v. Helm, 27 Ill. 199.
    But again, we maintain that the plaintiff’s mules were not entitled to any greater protection on Graham’s land than his own stock were entitled to, not only because his contract and the construction of fences under it relieved the company from any statutory obligation to maintain fences, but because these animals were wrongfully upon Graham’s land, and although, perhaps, it may not be said that Gill had “ suffered ” or “ permitted,” with his own consent and knowledge, these mules to stray upon the land of Graham, yet it can be said they strayed there “ in consequence of the failure or neglect of Gill to keep up and maintain in good repair his part or share of the partition fence” between him and his neighbor Graham, and because of this “ failure or neglect ” these mules were trespassers upon the land of Graham, for they are so regarded both by statute and also by common law. Section 5 of the £< act to regulate inclosures and provide against trespassing animals,” passed January 17, 1840 (S. & 0. 650).
    
      These mules, by the common law, also would be trespassers not only on the lands of Graham, but on the lands of the company. Burt v. Gow, 6 Mass. 97; I. & C. R. R. Co. v. Adkinds, 23 Ind. 341; Blythe v. Topham, 1 Rolle’s Abr. 88, Oro. Jac. 158; Bush v. Brainard, 1 Cow. 78; Herold v. Myers, 20 Iowa, 378.
    Again, it would seem that the agents of the company had the right to presume that the track would be less liable to the encroachments of stock where the railroad was fenced, and contracts for the maintenance of such fences made with the proprietors of land through which it ran, than where no such fences and contracts existed. They would not be expected, in running trains, to exercise the same degree of watchfulness and care where such provision had been made for fences as where no such provision had been made. Going back to the decision referred to in 4 Ohio St., “the company had the right to protect itself against the inconvenience and hazard of using an unfeneed road;” and we contend that the advantages of this protection shall not only apply to the cattle of him who had contracted to fence the railroad through his land, but also to cattle trespassing upon his land; the contrary doctrine would “ in effect justify trespass, and offer a premium to negligence.” 23 Ind. 345.
   Wright, J.

Joshua S. Gill brought suit in the Court of Common Pleas of Union county, to recover of the Atlantic and Great Western Railroad Company the value of three mules killed by a locomotive of the railroad company.

Judgment was rendered in favor of Gill in the Court of Common Pleas. The railroad company filed a petition in error in the District Court, which reversed the judgment of the Common Pleas. A petition in error is filed here to reverse the judgment of the District Court.

The facts are these : Gill and one Graham were adjoining owners. Between them was a division fence. Upon that part of this fence which Gill was to keep up, a tree which had been standing on Graham’s land fell. This broke the fence down. Through the opening thus made, Gill’s mules, which were in his fields, and not running at large, strayed into and upon Graham’s land. Thence they went into Graham’s lane, which led across the railroad track. By contract with the railroad company, Graham had agreed to fence the track through his land. But at the crossing of the lane he had omitted to put in cattle-guards, or anything else to prevent cattle going from the lane upon the track, as should have been done to make his fence a complete railroad fence. Gill’s mules therefore went down the lane and thus upon the track. Here they were struck by a locomotive and tender and killed.

It is claimed that, under the circumstances of the case, the mules were trespassers upon the lands of Graham, because of Gill’s neglect to keep up his part of the partition fence which the tree had broken down. Being trespassers upon Graham’s land, it is said they were also trespassers upon the lands of the railroad company, and so only entitled to such protection as the law awards to trespassers. We can not agree to this. Had Gill known that the fence had been broken down, or were the circumstances such as that he ought to have known, he might have been charged with negligence for failing to make the necessary repairs. There is nothing to show how long it was between the time when the fence was broken down and the time when the mules were killed. Gill testifies that he was at the point where the tree fell from five to eight days before the killing, when everything was in order; and it does not appear that he was in such fault as would render him liable to the charge of negligence, or of allowing his cattle to run at large. But supposing he was herein negligent, he was only remotely so. That negligence which wTas proximate to the injury complained of, was in having no cattle-guards or other protection to prevent stock going from Graham’s lane upon the track. In other words, the railroad was not properly fenced. ‘Who was responsible for this ?

The statute, March 25, 1859 (S. & C. 331), provides that railroad companies must construct and maintain fences for their tracks. If they do not, they are liable for damage done to animals by reason of the want or insufficiency of such fences. It appears to be claimed by the company that they were absolved from the obligations the statute imposed, by reason of the fact that they had made a contract with Graham to provide a fence; but this can not. be. If they had made such contract, and Graham had never complied with it at all, and never fenced a rod, certainly the company would be liable for damages occasioned by this dereliction of duty. Or if Graham had built the fence, and built it insufficiently, as was in fact the case, the company is in fault, for Graham is their agent in this behalf. It is not otherwise than if they had hired any other person upon a contract to fence, or if the fence was built by their regular employees. In either and any case, it is -the duty of the company to see that a proper fence is made and kept, and not to devolve that duty upon some third person who neglects it. Making a contract to build a fence is not building one.

These views are in unison with the opinion of the court as expressed in M. & C. R. R. Co. v. Stephenson & Brown, 24 Ohio St. 54.

An examination of the cases of Russell v. Hawley, 20 Iowa, 219, and Great Western R. R. Co. v. Helm, 27 Ill. 199, shows that they have but remote refei-ence to the matter in hand. In the quotations given from them, it is assumed that where a road has a proper fence, which is thrown down by some third person, so as not to be the fault of the company, they are not responsible. We do not disagree with such a proposition. In the case at bar, the fe'nce was insufficient through the neglect of the company’s agent or contractor, so that the company was directly in fault.

In Indianapolis and Cincinnati R. R. Co. v. Adkins, 23 Ind. 340, the company had fenced and put in bars for the accommodation of the land-owner, Whitlow, through whose premises the road passed. Clearly, if he had left the bars down carelessly, and his cattle had been killed by a passing train without fault of those running the train, he could not recover. The bars had thus been carelessly left down. The cattle of Adkins strayed on to the lands of "Whitlow, and thus got upon the track. Certainly, the cattle of Adkins could have no better right than if they had belonged to Whitlow.

It is claimed that the court erred in charging the jury with reference to the contract between the railroad company and Graham, by which the latter agreed to fence the road. Gill had no connection in fact or law with this contract ; and the court, in effect, said that the company was required to use the same care in running trains, to avoid injury to the mules, as if no such contract existed. We see no error in this. Had Gill been a grantee of, or in privity with Graham as to this contract, he would have been affected by its provisions, and could not have claimed damages over a breach of it, as was held in C., H. & D. R. R. v. Waterson, 4 Ohio St. 424; Easter v. L. M. R. R., 14 Ohio St. 48. No such l’elation, however, existed, and the existence of such a contract could not prejudice Gill’s rights.

The company then was in fault because the agent or contractor employed in that behalf had not fulfilled the required conditions, and the mules got upon the track by reason of insufficiency in the fence.

The company being in fault in this particular, the court said, in the second charge, that plaintiff' using ordinary care to keep his stock in, defendant would be liable, if it failed to exercise ordinary care merely, and by that neglect the injury happened, though it was not guilty of gross negligence. The charge seems to us correct. If a proper fence had been maintained, and then the mules had got upon the track, ordinary care to prevent accident is all that would have been required of the company. -But if they had constructed no fence, or one insufficient, and so cattle come on the track, certainly a degree of care more than ordinary would have been demanded, and if exercising ordinary care only, they occasion injury, they would be responsible. They could not let their fences run down, and then claim to be held to that degree of care only which was required when they kept them up and in good order. This would be requiring only the same degree of care in case of fence orno fence — of a fence that was sufficient and in compliance with the statute, and one that was not.

It is said that the verdict is against the weight of the evidence. This portion of the argument in behalf of the railroad is addressed chiefly to the handling of the locomotive at the time of the accident. The engineer testifies that he could not stop in time to avoid striking the animals. Binding this to be the case, he put on steam to strike as hard as possible. In this he is supported by a considerable amount of testimony, although there is some the other way, even on this point. But this view does not comprehend the whole case, inasmuch as it leaves out all considerations with regard to negligence in the matter of the fences. When these are thrown into the scale, so far from the finding being against the weight of evidence, we are of opinion that the verdict was as it should be.

Judgment of District Court reversed, and that of Common Pleas affirmed.

Scott, Chief Judge, Day, Johnson, and Ashburn, JJ., concurred.  