
    The Baltimore & Ohio Railroad Co. v. McIlyar.
    
      Repair of fence — Between railroad and adjoining land — Land owner refuses to permit repair — Injury to horse caused by defective fence — Railroad not liable, when — Negligence.
    Where a railroad company is proceeding to repair or rebuild a defective fence along the line of its right of way and upon the line where the fence has always been, and the adjoining land owner orders the company’s employes off the premises and notifies the company to stop work, claiming that the line of the old fence is not the true line, and the adjoining proprietor continues to use his land as a pasture knowing that the fence is defective and dangerous, without revoking or modifying his warning to the company or doing anything to determine the true line, and his horse is then injured by becoming entangled in the loose barbed wire of the defective fence, he can not recover for the injury to the animal, because his own conduct has proximately contributed to bring about the condition which resulted in the injury.
    (No. 10294
    Decided January 21, 1908.)
    Error to the Circuit Court of Guernsey County.
    This action was brought to recover damages from the railroad company for an injury to the plaintiff’s horse by its coming in contact with a barbed wire belonging to the fence between the company’s right of way and the plaintiff’s premises. The petition alleged that it was the company’s duty to construct and maintain in good repair a fence between its railroad and the land of the plaintiff and that it had theretofore constructed such a fence. It then proceeds to charge as follows: “Without any knowledge or fault on the part of plaintiff the defendant neglected and failed to maintain said fence in good repair, and negligently and carelessly caused, suffered and permitted said fence to be broken down and said strands of barbed wire to be detached in places from the posts and stretched and thrown down for a considerable distance on said plaintiff's parcel of ground and to remain there.” Plaintiff then avers that his horse became entangled in the said barbed wire and was injured thereby, for which he prays judgment. The defendant filed a demurrer to the petition, which was overruled. The defendant answered admitting that it was a railroad company operating the railroad referred to in the petition, and denying the other averments of the petition, and pleading contributory negligence by the plaintiff. Plaintiff replied denying the averments as to his negligence. On the trial, at the close of all the evidence, the defendant moved the. court to direct a verdict in its favor. This motion was overruled, and a verdict was rendered for the plaintiff. Before judgment upon the verdict was rendered, the defendant moved for judgment notwithstanding the verdict, on the ground that the petition did not state facts sufficient to constitute a cause of action and that upon the pleadings the defendant was entitled to judgment. This motion was likewise overruled. Motion for a new trial was filed,' overruled, and exception taken thereto. Judgment was rendered on the verdict and on error this judgment was affirmed by the circuit court. .Plaintiff in error, defendant below, prosecutes error in this court to obtain reversal of the judgments of the courts below.
    
      
      Mr. Fred. L. Rosemond and Mr. F. A. Durban, for plaintiff in error.
    
      Mr. J. B. Ferguson, for defendant in error.
   Davis, J.

It convincingly appears that there was a defective fence between the railroad company’s right of way and the plaintiff’s land; that the plaintiff knew that the fence was defective; that the railroad company had men and material on the ground and was proceeding with the work of reconstructing the fence on the same line on which the old fence was situated; and that the plaintiff thereupon, claiming that the fence was not on the true line, both orally and in writing notified the company’s employes to cease erecting a fence on that line, accompanying the notice with a covert threat that if they did not heed the warning they would have to take the consequences. The company’s servants thereupon left the fence in the condition in which it was when the plaintiff ordered them to stop the work. The plaintiff never retracted or modified this demand or order; and with full knowledge of the condition of the fence he continued to pasture his horse there for about two years until it was injured on his own premises by becoming entangled in a barbed wire belonging to the fence and lying loose upon the ground.

Under these facts, which are substantially undisputed, it does not seem to us to be necessary to determine whether the demurrer to the petition should have been sustained or overruled; nor whether the standards of the common law or those of the statute regulating the fencing of railways should be applied in this case. If it be conceded that it was the duty of the railroad company to so construct and maintain a fence between its premises and those of the plaintiff as to avoid injuring the plaintiffs stock while on his land and hot on the railroad track or right of way, we are. still confronted with the question whether the plaintiff has not forfeited whatever right to compensation he might have had by his own contributory negligence; for it was elaborately discussed and decided in Railway Co. v. Methven, 21 Ohio St., 586, that whether the right of recovery be under the common law-or under a statute, the doctrine of contributory negligence applies, unless it is clearly forbidden by statute.

The facts in this case show that the plaintiff was directly responsible for the condition of the fence at the time the horse was injured. It was being rebuilt when he peremptorily ordered the workmen away. His alleged reason for doing so may have been a good one; but whether he was right or wrong in his claim that the company was encroaching on his land it should at least appear that he made some -effort, during the two years that elapsed before the accident, to settle the true line. The company was proceeding to reconstruct the fence on the line formerly occupied and it is not suggested that it had ever been disputed before; nor is there anything in the record to raise even a suspicion that it was not the true line, except the plaintiff’s denial; and indeed, the plaintiff admitted ón the trial that the fence was on the true line. The railroad company therefore, so far as the rights of the plaintiff are concerned, was absolved from the duty of repairing or reconstructing the fence so long as his notice and the accompanying threats stood unretracted and so long as the dispute about the line was not settled.

The judgments of the circuit court and that of the court of common pleas are reversed and we render a final

Judgment for plaintiff in error.

Shauck, C. J., Crew, Summers and Spear, JJ., concur.  