
    The Pittsburgh, Ft. Wayne and Chicago Railway Company v. John Maurer.
    1. A corporation owning and operating a railroad which, crosses a common highway, is under no obligation to remove from the highway obstructions placed on the crossing by a stranger, if the material constituting the obstructions is neither the property, nor under the care and control, of the corporation, although the existence of the obstructions is brought to the knowledge of its agents.
    2. Nor does such obligation exist, although the person so placing the obstructions be a brakeman on the company’s road, and the material constituting the obstructions be waste manure from the stock cars of the company, if the brakeman so placed the manure for his own use, without the authority of the company, and, at the time, was not acting within the scope of his employment and duty as brakeman. Such a case does not fall within the purview of either the 13th or 18th sections of the act of February 8th, 1853. S. & O. 310 and 311.
    3. The right of a railroad company to enjoy the use of its road at the crossing of a common highway, and the right of the traveling public to use the highway, are co-ordinate and equal. Reasonable care and prudence must be exercised by each, in the use of the crossing, so as not to interfere unnecessarily with the other.
    4. By the provisions of the 33d section of the act of May 1, 1854 (S. & O. 279), the duty of restoring a highway diverted in the construction of a railroad, to “ such condition as not to impair its former usefulness," is imposed upon the corporation, and it is liable for injuries resulting from its neglect to do so. But when such highway has been fully restored to such condition, the corporation is under no obligation to keep the same in repair.
    5. If, however, after such highway has been fully restored, the railroad company wrongfully encroaches upon the highway, or impairs its usefulness, it will be held liable for damages resulting from such wrongful encroachment or impairment.
    Error to the court of common pleas of Richland county. Reserved in the district court.
    The original action was brought by the defendant in eiror against the plaintiff in error to recover damages for injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant.
    The allegations of the amended petition are, in substance, as follows: That the defendant, a railroad corporation, constructed its railroad across a public highway, and neglected to place the highway in such condition as not to impair its former usefulness, but on the contrary diverted the highway, and left it, at the crossing and for a distance of ten rods from that point, so narrow as to allow but one wagon to pas3 at once; and wrongfully and negligently placed large piles of ties on the road; and wrongfully and negligently placed large piles of manure upon the same at the crossing. That on the- 5th of December, 1864, the plaintiff was lawfully driving his wagon and team along said highway at said point. That his team became frightened at the manure piles, and because of the narrowness of the road and the obstructions thereon he could not return or pass around the manure piles. That while his horses were under such fright and while he was endeavoring to cross the railroad, the agents of the defendant rapidly and carelessly approached along the railroad with a hand car, and knowing the situation of the plaintiff, but disregarding their duty, so carelessly managed the hand car as to cause the plaintiff’s horses to run off, whereby his wagon was upset and he was thrown against a pile of ties and greatly injured, &c., without any fault on. his part, &c.
    To this petition the defendant interposed a general demurrer, which was overruled, and defendant excepted.
    The defendant then answered admitting its corporate ex istenee, and the ownership and possession of the railroad, but denying every other allegation in the petition.
    The issue thus made was submitted to a jury, which returned a verdict in favor of the plaintiff for two thousand dollars.
    The defendant then moved to set aside the verdict, and for a new trial, for the following reasons, to wit: 1. The verdict is contrary to the evidence. 2. The verdict is contrary to law. 3. For errors intervening during the trial. 4. The damages are excessive.
    This motion was overruled and judgment was entered on the verdict, and the defendant took a bill of exceptions setting out all the testimony, and the charge to the jury, and divers exceptions to the charge, and to the admission of testimony, &c.
    To reverse that judgment a petition in error was filed in the district court, and therein reserved to this court for decision.
    Such parts of the bill of exceptions as are material to an understanding of the points decided, appear in the opinion of the court.
    
      Laubie & Brooks for plaintiff in error :
    1. The court erred in overruling the demurrer to the amended petition.
    The petition does not allege any connection between the alleged unlawful acts of changing and .narrowing the highway, and placing the l’ailroad ties at that point, and the injury complained of. It is not alleged that they caused, or contributed to produce the injury.
    It is said that these were acts done in violation of a public statute, S. & C. R. S. 279, § 33. But it isnot sufficient that a public enactment has been violated, to enable a party to recover private damages. It must be shown that the violation caused the injury. Parker v. Adams, 12 Met. 415.
    Nor does it appear that the plaintiff would not have been as badly injured if these acts had not been committed. Coy v. Utica & S. R. R. Co. 23 Barb. 643.
    It is expressly alleged that the cause of the horses running away, was the approach of the hand car; biit the petition does not allege actionable negligence on the part of the company’s servants in charge of the hand car. Hess v. Lupton, 7 Ohio, pt. 1, 216; S. & R. on Neg. §§ 11, 12; 10 Allen, 372; 5 Denio, 266; Telfer v. Northern R. R. Co. 1 Vroom (N. J.) 188.
    The petition shows negligence on the part of the plaintiff in endeavoring to cross, in the face of the approaching car. Murdoc v. Warwick, 4 Gray, 178; 8 Allen, 565; 97 Mass. 258, 266; 28 Illinois, 301; 15 Maine, 27; 32 Maine, 574; 38 Maine, 204; Timmons v. C. O. R. R. Co. 6 Ohio St. 105, 108.
    
      2. The court erred in its charge to the jury, in several important particulars.
    (1.) That part of the charge relative to the duty of the railway company in, and its correlative right to, the general use of the public highway, tended to mislead the jury.
    The rights of railway companies and the public, to the use of public highways at crossings for purposes of passage, are equal, and neither is subordinate to the other, except in so far as the difference in the vehicles and means of locomotion used, compels one to give way to the other, when about to meet.
    The tendency of the instruction was to lead the jury to regard the right of the company to pass its car over the highway, as depending upon the fact of its not molesting or frightening the plaintiff’s horses.
    Upon this point the case of The Bellefontaine & Indiana R. R. Co. v. Schruyhart, 10 Ohio St. 116, 119, 120, is decisive.
    (2.) The court erred in its charge in regard to the duty of the company to place the highway at the crossing in a condition so as not to impair its former usefulness. The company is not bound to maintain the highway in its former condition of usefulness. S. &R. on Neg. §§ 452, 453. The statute (S. & C. 279, sec. 33) does not require it.
    In the charge in regard to the liability of the railway company for the act of the brakeman in depositing the manure upon the crossing, involving the doctrine of agency, as applicable to the facts of the case, the court undoubtedly erred.
    If in doing the act complained of, the servant depart from the objects of his employment, to serve a purpose of his own, the master is not liable. How v. Newmarch, 12 Allen, 49; Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 110; Mitchell v. Crassweller, 16 E. L. & E. 448; Story on Agency, § 456, and note 2; 1 Redf. on R’ys. note on pp. 513, 514, 515, 633; Reeves Dom. Rel. 358; Steamboat Co. v. H. R’y. Co. 24 Conn. 40 ; Croker v. N. L. W. & P. R’y. Co. Ibid. 249.
    
      As to that part of the charge of the court in relation to the liability of the company for allowing the manure to remain on the crossing, and neglecting to remove the same, we say the company were no more bound to remove obstructions placed by others on the highway near the crossing, than would a farmer through whose lands a highway ran, upon which obstructions had been placed by strangers. The company is not bound to keep the highway in repair. 28 Vt. 99.
    The statute (S. & C. 1310, 1311, secs. 90, 95) does not render the company liable for the unauthorized act of the brakeman iu obstructing the highway. The action must be against the particular individual who committed the wrong. Sec. 90; Goodhue V. Dix, 2 Gray, 181.
    3. The verdict is not sustained by the evidence.
    
      Matson & Dirlam for defendant in error :
    1. The amended petition contains all the facts necessary to constitute a cause of action.
    Taking the petition as a whole, it states clearly that, the injury was brought about by a combination of unlawful acts, all done by defendant; all in violation of plaintiff’s rights. It is immaterial whether the injury was the result of one of said acts, or the whole combined.
    We therefore do not think the petition is subject to the objection that no connection is shown between the acts of the railway company, other than its management of the hand car, and the injury complained of, or that the petition does not allege that th ey contributed thereto.
    2. Did the court err in charging the jury ?
    (1.) It is clearly the law that a railroad company is bound to use its franchises so as not to encroach upon the rights of others. The case cited in 10 Ohio St. does not conflict with that proposition.
    The general statement by the court, of the rights of the company and the public to the use of the highway, is not objectionablé.
    Take the entii-e charge, and it repels the idea that the company’s right to use the crossing is subordinate to, and must be postponed to the right of the individual to cross.
    The court simply referred to the obstruction of a highway as it is understood in common parlance, and not the necessary, ordinary and reasonable use by the company.
    (2.) It was the duty of the company to place the public highway, at the crossing, in such condition as not to impair its former usefulness. And the company could not, without becoming responsible, maintain and operate its railroad, with the highway in its impaired condition. This obligation is a continuing one. It was the duty of the company to keep the highway at the crossing unimpaired. 51 Maine, 313; 41 Penn. St. 256 ; 10 Rich. 227 ; 8 Allen, 245, 560; 1 Redf. on Railways, 399, 404; 8 Ellis & Bl. 835 ; 29 Conn. 434 ; 14 Gray, 55 ; 16 N. Y. 159.
    Our legislature, although liberal in its grants of the use of our highways to railroad corporations, for crossings for their tracks, yet have been very careful to protect citizens from the consequences of the wrongful or negligent exercise of the powers granted. S. & C. 279, 1310, sec. 90, 1311, sec. 95.
    (3.) In regard to the manure placed by the brakeman on the crossing. The company is not released from liability because the agent exceeded or disobeyed his instructions in the business of the company. Indeed, if the agent is strictly forbidden to do an act pertaining to the business in which he is employed, the master is liable for his carelessness while so doing. It is not the law that the servant must be able to justify himself to the master in order to make him liable for an act of the agent while doing the master’s business. The company must be held liable for the condition of the crossing while operating the road : 1st. It was obstructed by operating the railroad. The material thrown on the track was the property of the company, transported by the company to that place, and there unloaded by an employee of the company, and continued to be the property of the. company while on the crossing and under its dominion. 2d. The company owed a special duty to the public at the crossing, and therefore was always present there in contemplation of law. 1 Redf. on Railways, 513.
    The court did not err in qualifying the charge. Linsley v. Bushnell, 15 Conn. 225.
    3. The verdict was sustained by the evidence.
   McIlvaine, J.

The demurrer to the amended petition was properly overruled. The facts stated in the petition were sufficient to constitute a cause of action.

In order to understand certain objections made to the charge to the jury, it is necessary to state the tendency of a portion of the testimony. The defendant’s railroad crossed a common highway, near Loudenville station, at the place where the plaintiff received his injuries. At the point of intersection, and within the lines of both roads, were pilés of manure, which had been deposited there from the stock cars of the defendant by one of its brakemen for his own use. It was claimed that these piles of manure obstructed the highway, and contributed to the injuries of the plaintiff. Testimony had been offered tending to prove that the brakeman, at the time and in the act of placing the manure upon the road, was not acting within the scope of his employment as brakeman, but was acting for himself, and without the authority of the defendant.

In view of this state of the case, the court instructed the jury as follows: “If the act of the agent placing such obstruction was. not within the scope of his employment and duty as agent of the defendant, the defendant would not be liable for any accident resulting from the same, unless the said obstruction had remained on said crossing after a knowledge of the same had been brought home to the agents of the company at that station, and said agents had neglected or refused to remove the same, and on account of such neglect and refusal said accident occurred.”

The general rule as stated to the jury is correct, but we are of opinion that thei’e is error in the qualification as given by the court.

A corporation owning and operating a railroad which •crosses a common highway, connot be held liable for the consequences of obstructions placed on the highway by a •stranger, although the place obstructed is common to both roads, and the agents of the corporation neglect and refuse to remove the obstructions after knowledge of their existence, unless such liability arises under the provisions of the 13th or 18th sections of the act of February 13, 1853, relating to roads and highways. (S. & C. 1310 & 1311.)

Section 13 creates a liability only against the person or •corporation that obstructs the highway, &c. But the case put in the charge excludes the idea that the defendant, or any •of its authorised agents, caused the obstructions named. Nor can the qualification be sustained by the provisions of the 18th section, for the reason that the wrong intended to be provided against by that section is the unnecessary obstruction of a highway by any person or corporation permitting any property or thing over which such person or ■corporation has some cause or control, to remain on the road to the hindrance, &c., of the public, &e.

This manure was not under the care or control of the defendants or its agents, but was waste and abandoned material in which the defendant claimed no interest, and over which it exercised no dominion. And although it may have been an obstruction to the highway, the defendant was under no obligation to remove it, and was not, therefore, liable under this section for permitting it to remain on the road. The fact that it was thrown from the defendant’s stock cars, is not enough to make defendant liable, unless it be also shown that it was placed on the highway by some of its agents acting within the scope of their employment.

It is also claimed that the court erred in giving the following instruction to the j ury, viz.: “ As I had occasion to remark to most of you in a case that was tided at this term of the court, that while the right and privilege is granted to a railroad company, and belongs to them, to use and enjoy their property, rights and franchises in such manner as to them might appear best suitable to promote their -own interests, yet their rights must be so exercised and enjoyed as not to interfere with or encroach upon the rights of others. The public have the right to the use and enjoyment of the highways for the purposes of locomotion, and for the use of teams and conveyances, free and unmolested» The law has provided that railroad companies may also have the use of public highways in the construction of railroads at places where it becomes necessary to cross the same, but. it is coupled with a condition, imposed by statute, that said-corporations shall place such road in such condition as not to impair its former usefulness. And it follows, as a natural consequence of such a requirement, that these corporations shall keep such road in such a condition as not to impair its former usefulness.”

"We think this charge was calculated to mislead the jury.. The right of a railroad corporation to use its road at the place of crossing a highway is not subordinate to the right, of the public to use the highway. In case of an apparent, conflict or interference between their respective rights, each, must defer to the other, in its reasonable use of the crossing ; or, in other words, each must exercise reasonable care-not to interfere unnecessarily with the use of the road by the other. And what amounts to reasonable care in such a case-depends on all the circumstances, including the nature of the use for which the roads were respectively designed.

In the case of B. & I. R. R. Co. v. Schruyhart, 10 Ohio St. 116, the court below had charged the jury that the railroad company “had a perfect right to carry a head-light on its train by day or night, if it claimed to do so ; and that, it was no doubt its duty to carry such light at night; but that the carrying of a light, like every other act of the-company, in the exercise of its functions, must not interfere with the rights, nor endanger the property of others.” And, upon review, this court held the charge to be erroneous, because the right or duty of a railroad company to carry a. head-light did not “ depend upon the fact of its not interfering with the rights or endangering the property of others.”

Nor do we think that section 33 of the act of May 1,. 1852 (S. & C. 279), or any other rule of law, imposes upon a railroad company, constructing its road across a public highway, conditions and obligations to the full extent stated by the court, if we rightly understand the charge. That section reads as follows : “ It shall be lawful for such corporation, whenever it may be necessary, in constructing such road, to cross any road or stream of water, to divert the same from its present location or bed ; but said corporation shall, without unnecessary delay, place such road or stream in such condition as not to impair its former usefulness.” Now, clearly the duty of placing the road diverted in such condition as not to impair its former usefulness, is imposed upon the company; and if it fail or unnecessarily delay to do so, no doubt it becomes liable for any injury resulting from such failure or delay. But the failure to perform this duty is not a condition upon which the right of the company to make the crossing, or to operate its road, depends. Nor does the failure of the company to restore the highway increase the degree of care required of it in operating its road. Nor is there any duty imposed, by this statute, upon the company to keep the highway in repair, after it has been placed in such condition as not to impair its former usefulness.

If, however, after such highway has been fully restored, such company wrongfully encroaches upon or impairs it, so as to render it less useful or safe, the company will be held liable for damages resulting to any person injured in consequence of such wrongful encroachment or impairment.

Several other questions have been raised upon the record in this case, and fully discussed, but it is not necessary that they should be considered in this opinion.

For reasons above indicated, the judgment of the court of common pleas will be reversed, and cause remanded for further proceedings.

Judgment reversed.

Welch, C. J., and White, Day and West, JJ., concurred.  