
    *The Cleveland, Columbus and Cincinnati Railroad Company v. Levi T. Elliott.
    In error to the district court of Lorain county.
    The object of the petition is to reverse a judgment recovered by Elliott against the company for killing his cattle. The facts and points in controversy, as they appear in the bill of exceptions, are as follows:
    It appeared that, in 1852, the plaintiff was the owner of two oxen and some cows, and that the railroad of the defendants passed -through the lands of the plaintiff in Lorain county; that part of .said lands were not fenced ; that there were other unfenced lands in that immediate vicinity; and that there was also a public highway in the immediate vicinity. It further appeared that the plaintiff was in the habit of allowing his oxen and cows to run on the highway and the unfenced lands adjoining and in the vicinity of said railroad. "While they were thus running at large, in 1852, the locomotive of the express train from Cincinnati killed two of plaintiff’s oxen which were upon the track, about four o’clock in the afternoon. It appeared that, before they wore killed, the oxen were feeding with the cows by the side of the unfenced lands .adjoining the railroad, near to the plaintiff’s land; that when the engine was 80 to 100 yards from them the steam-whistle was blown. The cows and oxen ran along the roadway some considerable distance, and the whistle was blown continuously to scare them off. The train finally ran over and killed the oxen. Witnesses swore that no signal for putting down the brakes was heard, and that they believed the speed of the train was not slackened ; .and the plaintiff gave evidence tending to prove negligence upon the part of the defendants. The defendants asked the court to ■charge the jury that if they were satisfied that the plaintiff permitted *his cattle to go at large on uninclosed grounds, other than the public highway, and adjacent to said railroad, and being permitted so to go at large on such uninclosed grounds, the cattle in question passed from such grounds onto the track of said railroad, and were then injured, such permission constituted such negligence on the part of the plaintiff in the premises as precludes Rim from a recovery in this case for the damage so sustained by Mm in consequence of the negligence in the premises of the defendants, which charge the court refused to give, but charged the-jury that the defendants were under no legal obligation to fence in their railroad, and their omission to do so did not constitute negligence on their part for which the plaintiff could recover in this action; that the plaintiff had a right to permit his cattle to run at large upon the public highway, and if he so permitted them to run at large, or permitted thorn to run at large on other uninclosed land adjoining the railroad of the defendants, and in consequence thereof they went upon the track of defendants’ railroad, and were on said track at the time of the injury complained, of, and plaintiff omitted to restrain them from going uj>on said track, the plaintiff was not thereby chargeable with negligence which would prevent -him from recovering damages in this case, although the jury should find that the injury was not intentionally done by the defendants; that if the injury was the immediate consequence, in whole or in part, of the plaintiff’s negligence, he could not recover of the defendants for any negligence on their part except gross negligence; that the question for the jury to-determine was whether, under all the circumstances of-the case, the defendants exercised reasonable and proper care in running their engine to avoid injury to the cattle of the plaintiff; that there was no rule of law that required the defendants to stop their engine or check its speed, to avoid injury to the cattle of the plaintiff, unless that was required to be done by the use of reasonable and proper care on their part; that in determining whether-the defendants did use reasonable and proper care in this case *they should take into consideration all the circumstances of the case, as well the conduct of the plaintiff in permitting, if he did so, his cattle to run at large and be upon the track of the defendants’ road, as the nature and importance of the defendants' business, and the inconvenience and loss to which they might be-subjected from having the progress of their trains obstructed by cattle upon the track of their road; and if, upon the whole ease, they should be satisfied that, at the time of the injury in question, the defendants did use reasonable and proper care to avoid committing the injury, they must return a verdict for the defendants;but if they should find that the defendants did not exercise such-reasonable and proper care, and thereby caused the injury complained of, they must give the plaintiff a verdict, with such dam.ages as they should think reasonable.
    The jury having found for the plaintiff, the defendants moved for a new trial, upon the ground, and for the refusal to charge as requested, of error in the charge of the court; which motion being overruled, the defendants excepted.
    The refusal to instruct the jury as requested, and the instructions given, are assigned for error.
    
      Bishop, Backus & Noble, and A. D. Clark, for plaintiff in error.
    
      S. Burke, for defendant in error.
   Thurman, C. J.

The common-law doctrine that requires the owner of domestic animals, not unruly or dangerous, to keep them upon his own premises, and makes him a trespasser if he suffer them to run at large, and they go upon the uninclosed lands of another, is not the law of Ohio, being inconsistent with our statute law, and contrary to the common usage that has always prevailed in this state.

The remote negligence of the plaintiff will not prevent his recovering for an injury to his property immediately caused by *the negligence of the defendant. The negligence of the plaintiff that defeats a recovery must be a proximate cause of the injury.

Suffering domestic animals to run at large, by means whereof they stray upon an uninclosed railway track, where they are killed by a train, is not, in general, a proximate cause of the loss; and hence, although there may have been some negligence in the owner’s permitting the animals to go at large, such negligence being only a remote cause of the loss, it will not prevent his recovering, from the railroad company, the value of the animals, if the immediate cause of their death was negligence of the company’s servants in conducting the train.

The bare fact that a railway is uninclosed, there being no statute requiring it to be fenced, does not, in general, render the railroad company liable to pay for animals straying upon the track and killed by a train — such want of fencing being, in general, only a remote cause of the loss.

The paramount duty of a conductor of a train, is to watch over the safety of the and in his to which., it is his duty to use reasonable care to avoid unnecessary injury to animals straying upon the road.

See Kerwhacker v. The C., C. & C. R. R. Co., 3 Ohio St. 172; The C., H. & D. R. R. Co. v. Waterson and Kirk, ante; Trow v. The Vermont Central R. R. Co., 24 Vt. 487.

Judgment affirmed.  